The 36th Joint Colloquium on International Arbitration had a distinctly cozy feel this year. Rather than convening with several hundred international arbitration colleagues and friends in New York, Paris, or Washington, DC, attendees all typed their greetings to one another in an electronic chat box on the virtual conference interface. From respective home domiciles in the Middle East to the Middle West of America, the southern hemisphere to the north, warm salutations to one another flooded in.

One only had to decide how to spend their half-day at the Colloquium. Did they wish to browse the latest publications in one of the institution’s virtual exhibition booths? Or to watch the speakers presenting in real time, live on the event stage? Perhaps all the months of isolating at home brought forth a keen enthusiasm to video chat with others in the virtual networking lounge. The Colloquium’s online platform may not have been on par with experiencing the event and all its offerings in Paris as one had foreseen happening a year prior; but there was without question a novel charm to this new and completely unique online conference experience.

Going into the program, the big question undoubtedly on everyone’s mind was how will COVID-19 change international arbitration? The answer of course, remains to be seen. But what participants did learn was that even during the midst of a global pandemic, AAA-ICDR, ICC, and ICSID have not taken their finger off the pulse of their own response to international arbitration users’ needs. All three institutions highlighted how they not only responded to the challenges of utilizing a fully remote workforce to continue operating efficiently, but also how revisions already in the works were simply hastened along by the pandemic. One distinctly had the feeling that under any of the institution’s auspices, they continued to be in the best of hands.

Institutional developments and priorities

It is tradition in the first panel of the Colloquium for the heads of AAA-ICDR, ICC, and ICSID to present their respective years-in-review. Alexis Mourre (President, ICC International Court of Arbitration) gave the welcoming address, taking a moment to reflect on the fact that this would be his last Colloquium as President of the Court; at this time next year, Claudia Solomon would be filling his shoes as the new term President. Alexis noted that Claudia’s ascension to the position was especially poignant as she will be the Court’s first female president in its 97-year history.

The virtual microphone then turned to Meg Kinnear (Secretary-General, ICSID), who informed attendees that 2020 had brought important developments to their institution; much of it because of the pandemic, and ironically, much of it good. For one thing, it forced ICSID to see how far they could go operating virtually. With staff members working seamlessly from home, the institution’s remote filing capabilities have been fortuitously pushed two years ahead of schedule. Remote filing will now be the norm when everyone returns to the office.

ICSID hearings have also gone remote, which has demonstrated to all involved that the technology in use functions extremely well. Ms. Kinnear stated that the biggest challenge faced when holding hearings virtually is bridging the gap between time zones, which remains a work in progress. The big question is whether remote technology continues its run to whatever degree after the pandemic ends. There is no doubt, Ms. Kinnear noted, that its use can save time and costs, speed the issuance of awards, and reduce the carbon footprint.

In other news, ICSID now has 155 member states and experienced its second busiest year yet. Ms Kinear said that most cases are treaty-based, and the most popular sector concerned is energy. Looking ahead, ICSID has an arbitrator code of conduct draft in the works – known as Working Paper #4 – which will look to address issues such as conflict of interest, double-hatting (where arbitrators also maintain a counsel practice), and repeat appointments, among others.1

Turning to the news out of AAA-ICDR, Eric Tuchman (Senior Vice President, General Counsel and Corporate Secretary) informed conference attendees that COVID has required the institution to make ongoing strives to stay on top of their operational requirements. He noted that case management during the pandemic has been seamless and the technology in use has been met with a high level of satisfaction from users - so much so that there is growing sentiment about whether to vet potential arbitrators specifically on their ability to conduct arbitrations wholly online. A training has now been created for AAA-ICDR arbitrators for this purpose. Of course existential challenges still exist to online hearings including the sometime need for in-person inspections, and cyber-security and data protection. These, according to Mr. Tuchman, continue to be the focus of AAA-ICDR’s ongoing efforts to evolve in response to users’ needs.

Finally, Mr. Tuchman highlighted AAA-ICDR’s continued strong commitment to promoting diversity within its arbitrator ranks through its Diversity and Inclusion Standing Committee, and its fellowship program to develop a diverse pool of neutrals.

Turning the floor back to Mr. Mourre, attendees were informed that the big news out of ICC is the 2021 revision of the ICC Rules of Arbitration. One major focus of the new rules will be changes to the highly successful expedited arbitration rules. Mr. Mourre reported that ICC handled over 200 expedited cases since 2017, leading to 98 final awards, 71 of which were issued within the six-month time limit.

Other changes coming as part of the 2021 ICC Rules revision process- the possibility of joinder after proceedings have already begun, consolidation of claims under the same arbitration agreement, the Court’s providing reasons for challenges and decisions on consolidation of awards and jurisdiction, disclosing the involvement of a third-party funder to all parties and the tribunal, and the power to exclude counsel when a conflict of interest exists. Also, a new Article 12 provision will be added allowing the Court to disregard anything written in an arbitration clause that would distinctly disadvantage a party (e.g. only one side is given the power to appoint a sole arbitrator). And finally, and perhaps most timely for 2021, tribunals under the new Rules will have the right to organize arbitration hearings remotely even when not agreed upon by the parties in the arbitration agreement.

Expedited procedures

Institutional representatives and arbitration experts followed the traditional year- in-review of the three institutions, discussing issues and developments that will no doubt be important in 2021 and beyond. Ana Serra e Moura (Deputy Secretary General, ICC International Court of Arbitration), Martina Polasek (Deputy Secretary-General, ICSID) and Luis Martinez (Vice President, AAA-ICDR) reported on their respective institutions’ current and planned expedited rules offerings, as well as looking into their ‘crystal balls’ to opine on where it was going in the future.

While ICSID does not currently offer expedited arbitration rules, Ms. Polasek stated that they are indeed forthcoming and will provide the benefit of faster and less costly proceedings. The new expedited rules will be opt-in by default, require a sole arbitrator appointment by default, restrict the bifurcation of proceedings, and fix time limits. The intended result will be the issuance of an award within approximately one and a half year of commencing the proceedings, which Ms. Polasek notes is good timing in an investment case. It is anticipated at ICSID that the expedited rules will be used more in investment contract cases as opposed to treaty cases, and in those involving smaller value claims.2

With respect to ICC’s Expedited Rules, Ms. Serra e Moura discussed what sets them apart from ICC’s standard rules, such as that no terms of reference are required, the case can be decided on documents only, document production can be limited by the tribunal, and the Court can appoint one arbitrator even where an agreement calls for three. Ms. Serra e Moura noted that while the idea for the rules was first discussed in 2002, the number of small claims was still low back then; it was not until 2017 when 25% of ICC’s cases concerned disputes up to US$ 2 million that the demand was sufficient to put expedited rules in place. Now, with the 2021 rules revision, the threshold for automatic application of the expedited rules will be increased from US$ 2 million or less in dispute to US$ 3 million.

Mr. Martinez provided an overview of AAA-ICDR’s expedited arbitration rules, which were established in 2014 to automatically apply in any case where the claim does not exceed US$ 250,000. Like ICSID and ICC, the AAA-ICDR rules provide for the appointment of a sole arbitrator; also to promote expediency, they are designed for a decision to be made on documents only without the need for a hearing. Mr. Martinez noted that the average length of a procedure under AAA-ICDR’s expedited rules in 2019 was 229 days from the initial filing to the issuance of the award.

In looking into the future, all the panelists seemed to agree that this important tool will continue to grow upon its own success, so long as all participants understand how their processes work to promote expediency, and that they cooperate in their own roles to achieve that end. There was also agreement on the expectation that any hearings held under these expedited sets of rules will increasingly take place virtually as opposed to in-person.

Scope of international arbitrator authority

Mark Kantor (Independent Arbitrator and Mediator, Washington, D.C.) then moderated a robust discussion with top practitioners in the field on (i) how much authority international arbitrators have in protecting the efficiency and integrity of the arbitration process and (ii) the challenges arbitrators face in dealing with dilatory tactics.

Mélida Hodgson (Head of International Arbitration at Jenner & Block LLP, New York) discussed some of the behaviors of parties and counsel that she said are harmful to the integrity of the arbitration process, including unnecessary changing of counsel near the hearing date, bad faith challenges to arbitrators, frivolous requests for injunctive relief and outright lies presented about the facts of the case. Ms. Hodgson posed the question as to what arbitrators’ powers are and should be to address these situations including possibly issuing sanctions on the offending parties or counsel. She stated that arbitrators should find the ability to do so during the course of the proceedings and not just in a statement at their conclusion.

Eduardo Damião Gonçalves (Partner at Mattos Filho, Marrey Jr e Quiroga Advogados, Sao Paulo) said that in his jurisdiction, it is possible to obtain fines and sanctions through the code of civil procedure for bad faith actors in litigation cases, and there should be a push for the same in arbitrations. He also pointed out the important role that parties play to ensure that their case is being handled correctly, mainly by being engaged and present during the entire course of the proceedings.

In highlighting the importance of the integrity of the arbitration award, Aisha Nadar (Senior Consultant, Procurement Management and Dispute Resolution, Advokatfirman Runeland, Stockholm) noted that arbitrators have a high duty to apply the law correctly and uphold due process since an arbitral award is final and offers limited recourse to the losing side. She noted by example that if a pivotal issue arises late in a proceeding, an arbitrator must grapple with it – even at the expense of time and cost savings – to ensure that the correct conclusion of law and facts are made to obtain the most correct award possible.

Mr. Kantor asked the three panelists specifically how far an arbitrator can go in asking questions. Ms. Nadar said that while there is no black letter rule on this, an arbitrator must always avoid the appearance of impropriety and ensure parties trust that they received procedural fairness. Mr. Gonçalves agreed with this point and added that arbitrators should not prevent themselves from asking necessary questions in order to keep up appearances. Ms. Hodgson also pointed out that one does not want to see, through the course of questioning, an arbitrator become part of a counsel’s team.

All agreed that a fine balance needs to be struck between a party’s right to due process in presenting its case as it sees fit, and the duty of arbitrators to manage the proceedings efficiently and to issue an untainted, legally enforceable award.

With a view of the light waning against the Eiffel Tower out of her window in the background, Ms Serra e Moura virtually closed out the Colloquium with a concise summary of the day’s discussions and a directive that the international arbitration community must continue to adapt to the changing circumstances of the new COVID world.


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Views and opinions are that of the author in their personal capacity as an attorney and do not reflect the views or opinions of the U.S. Small Business Administration.

1
https://uncitral.un.org/en/codeofconduct

2
For further reading, see C. Baltag, 'UNCITRAL Working Group II: Investment Disputes and Expedited Arbitration: A Probable Symbiosis?' (Kluwer Arbitration Blog, 15 Sept. 2020).