Released on Nov 27, 2024
The ethical rules, codes of conduct, and regulations that govern the practice of law in the EU and Switzerland also regulate lawyers’ use of AI in dispute resolution. Bar associations and other professional regulatory bodies have also issued specific guidance regarding the use of AI, including as long ago as 2018. Additionally, the Swiss government is considering possible regulatory approaches to AI and plans to issue a proposal in 2025. Meanwhile, the EU AI Act, which came into force on 1 August 2024, treats as ‘high risk’ the use of AI systems by judges, or on their behalf, to research, interpret, and apply the facts and the law and to AI systems ‘used in a similar way in alternative dispute resolution’. Depending on how this provision is enforced, it could raise potentially significant issues for the use of AI in alternative dispute resolution, including in arbitration.
Released on Nov 27, 2024
Since the release of Chat GPT in late 2022, the use of generative AI by attorneys has exploded in the United States. The two main drivers are: (1) the ease of access to and use of generative AI to seemingly do what heretofore required human capital; and (2) a relentless market pressure to perform legal work more efficiently. This article explores the current state of how courts and State Bars throughout the United States, along with ADR provider JAMS, are regulating the use of GenAI in the litigation context. It identifies emerging trends common to the approach taken by the federal judiciary and State Bars including limited use, transparency, proficiency, disclosure, human oversight and verification. Finally, it explains why it is unlikely, in contrast to the EU’s approach, that the US Congress will pass federal regulation limiting the use of AI by judges and arbitrators, and instead, leave such potential future AI regulation to the provenance of the States.
Released on Nov 27, 2024
The IBA Guidelines on Conflicts of Interest in International Arbitration of 2024 update – without overhauling – the 2014 version by fine-tuning drafting, clarifying ambiguities, incorporating established arbitral practice, and reinforcing various fundamental principles. The 2024 Guidelines were the result of work by a taskforce composed of over 60 individuals involved in the field of international arbitration with diverse backgrounds. Their work was informed by comments received from the international arbitration community during a consultation phase. The 2024 Guidelines include eight key updates that: (1) clarify their scope of application; (2) clarify that Part I of the 2024 Guidelines (General Standards) prevails over Part II (Application Lists); (3) clarify the role of the subjective versus objective standards in evaluating conflicts of interest and disclosure; (4) reinforce the arbitrator’s disclosure obligations; (5) broaden and clarify the definition of ‘relationships’ for the purposes of evaluating conflicts of interest and disclosures; (6) reiterate the arbitrator’s duty to investigate; (7) reiterate the parties’ duty to investigate and inform; and (8) update the ‘traffic light system’ of Red, Orange and Green Lists to reflect current international arbitral practice.
Released on Nov 27, 2024
This article reviews the development of emergency arbitrator proceedings (EA) internationally in institutional arbitration rules and in national laws since the ICDR Rules first offered EA in arbitration in 2006, including the forms of urgent interim relief available in EA pending the constitution of an arbitratlon tribunal. Among other topics, it reviews why parties choose EA, the interaction of EA with national court systems, provides a comparison between EA and national courts’ proceedings including as to cost, the types of interim measures available, coercive powers to require compliance, their respective scope as to third parties, whether ex parte applications are permissible, the enforceability of interim relief orders, the nature of the order or award and whether a binding decision is made in EA, and the approach of jurisdictions to enforcement of orders made in EA. The article provides statistics as the uptake and use of EA proceedings from 2020 to 2023 in ICC, SIAC, HKIAC, SCC and LCIA arbitrations and reviews the different approaches to the substantive standards for granting relief in EA proceedings. It discusses EA relief and performance bonds. Finally, it reviews the considerations relevant to the future development of EA.
Released on Nov 27, 2024
Released on Nov 26, 2024
Released on Jun 14, 2024
This article provides an overview of developments in international arbitration in Mainland China amid the absence of amendment to the 1995 PRC Arbitration Law. It explores China’s gradual transition towards becoming a more arbitration-friendly jurisdiction through judicial rulings on individual cases. Chinese courts are actively shaping the legal landscape to meet the demands of a growing international arbitration market. Key topics covered include the validity of arbitration agreements, the treatment of incomplete arbitration clauses, the adoption of the seat of arbitration, the interpretation of foreign-related factors, the adoption of international guidelines and soft law. This article discusses the significant role review of ICC cases by PRC Courts has played in the development of the legal principles applicable to foreign related and international arbitration cases conducted in Mainland China.
Released on Jun 13, 2024
Released on Jun 12, 2024
Countries across the world are grappling with how to deal with the rapid developments in Artificial Intelligence (AI) and its uses. In this article we analyse three such jurisdictions: the UK, Singapore and India. A common theme that prevails across these jurisdictions is the focus on principles and guidelines instead of straitjacketed regulations that tend to be more inflexible. Another common theme is the reluctance to adopt AI tools that serve to replace human decision makers. Some of these approaches are still evolving – particularly in a country like India where the burgeoning case load may yet make way for automated resolution for small value claims.
Released on Jun 12, 2024
There are different types of equitable estoppel under English law including promissory estoppel, estoppel by convention and proprietary estoppel. In this article the various types of estoppel under English law are considered and the doctrine of proprietary estoppel in the context of the creation of a trust is discussed. The English doctrine of equitable estoppel is compared to the principle of promissory estoppel in United States law, including the superimposition of the Statute of Frauds. Its protection of the principle of equitable estoppel has extended to the mixed jurisdiction of Louisiana which has adopted the civil law remedies which are equivalent and lead to similar outcomes.
Released on Jun 12, 2024
The new Foreign State Immunity Law 2023 of the People’s Republic of China came into force on 1 January 2024. This shifts the country (as well as its special administrative regions, Hong Kong and Macau) away from absolute state immunity to restrictive state immunity, bringing it more in line with the relatively prevalent practice among the international community. This article discusses the status of state immunity in public international law, analyses the new law’s provisions and examines practical challenges that will be faced by those seeking to utilise this law to enforce judgments or awards against foreign states and state entities, and the new law’s innovations that go beyond the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004 and the UK State Immunity Act 1978.
Released on Jun 12, 2024
Released on Dec 13, 2023
This article discusses the power of arbitral tribunals to remove legal counsel from arbitration proceedings under two scenarios: conflicts of interest and counsel misconduct. Many leading arbitration institutions have amended their arbitration rules to explicitly grant arbitral tribunals authority to remove counsel based on conflicts of interest. Investment arbitration tribunals have also established that tribunals possess this authority when conflicts arise between counsel and the tribunal or opposing parties. In the case of counsel misconduct, apart from the London Court of International Arbitration (LCIA) Rules and the International Bar Association (IBA) Guidelines on Party Representation in International Arbitration, the current arbitration rules of the major institutions do not expressly empower a tribunal to sanction, let alone remove, counsel based on misconduct. Although there is growing demand for institutions to adopt rules regulating counsel misconduct, criticisms exist, raising the question of whether this is one step too far.
Released on Dec 13, 2023
The Bangalore Principles of Judicial Conduct (2002), although not binding on states, are widely supported as a means of promoting judicial integrity. Diverse jurisdictions with different traditions have relied on the principles as a template in codifying judges’ conduct. The article explores practices across 67 jurisdictions with regard to whether active or serving judges are permitted to act as arbitrators. The article investigates reasons why judges should not act as arbitrators and the effect of active judges acting as arbitrators on setting aside proceedings, prevalent in many jurisdictions, and on appeals on a point of law found in restricted jurisdictions. It also analyses sample judicial codes of conduct and relates this to whether active judges should act as arbitrators. In addition to the different jurisdictions, the article looks briefly at the practice at the International Court of Justice.
Released on Dec 13, 2023
Released on Dec 12, 2023
Released on Dec 12, 2023
Released on Dec 12, 2023
This article pleads for a (practical) balance between confidentiality and transparency for the publication of arbitral awards in international commercial arbitration. A contemporary question regarding confidentiality in international commercial arbitration is whether more transparency is desirable within the international commercial arbitration practice. This article argues that this is the case for the publication of arbitral awards, where a practical balance between confidentiality and transparency of arbitral awards should be sought, especially, considering that commercial companies prefer at this stage confidentiality over transparency within international commercial arbitration. The current opt-in and opt-out systems enacted in institutional arbitration rules for the publication of arbitral awards as a compromise between those different perspectives have proven to be insufficient. This article recommends allowing publication of awards with complete anonymisation, except if an arbitral tribunal grants a request by a party to not publish an anonymised award by an arbitral decision. Parties will, however, always have the opportunity to settle on a different approach in their arbitration agreement, since such agreements must be honoured by the arbitral tribunals and contracting states to the New York Convention (Article II(1) and Article V(1)(d) of the New York Convention). Along these lines, a practical balance between confidentiality and transparency in respect to the publication of arbitral awards could be provided for by arbitral institutions without delegitimising the practice from the viewpoint of the commercial sector, which prefers confidentiality over transparency.
Released on Jun 5, 2023
This article provides an introduction to the Damages in International Arbitration (DIA) app, an interactive web application prepared by the ICCA-ASIL Task Force on Damages following five years of work. It has been prepared on the basis of the author’s contribution at the 2022 IBA Day Istanbul in March 2022 in the panel chaired by Mark Friedman and including David Dearman and Smitha Menon. The DIA guides users through the key legal, quantitative and procedural issues implicated by quantifying damages in international arbitration. The article is illustrated with some screen shots from the DIA web application and also refers to Friedman’s presentation on the suggested Quantum Academy (see pages 69–78).
Released on Jun 5, 2023
The portion of the award that causes considerable consternation for parties and tribunals is often the section dealing with damages. Tribunals do not always award all or even the bulk of the damages claimed and this increases the dissatisfaction from users of arbitration services, dissatisfaction brought about by unexpected outcomes of arbitration claims. As parties become more sophisticated and hire the relevant legal and financial expertise who have time and resources to dedicate to the case, it is inevitable that complexity is inherent in damages claims and this needs to be competently addressed to ensure arbitration remains relevant. Large awards of damages, in and of themselves, don’t undermine the system. It is the lack of analysis or improper analysis that does. This article takes a closer look at three of the drivers that could lead arbitration practitioners to inadequately handle quantification of loss and damages claims in international arbitration: differences in approach, practitioners not stepping up, and damages experts.
Released on Jun 5, 2023
Damages issues arise in almost every international arbitration. As arbitration disputes grow larger and more complex, so, too, does the complexity of damages issues. There is no doubt that ‘getting it right’ on damages is of utmost importance to the clients we serve and to the legitimacy of the arbitration system as a whole. Yet, damages issues are too often delegated to experts without sufficient critical engagement by counsel. In this article, Mark W Friedman proposes the creation of one or more quantum academies – forums offering a multidisciplinary approach to discourse and learning about damages issues in international arbitration. By providing counsel, arbitrators and other international arbitration participants with the skills to engage rigorously on damages issues, quantum academies would demonstrate to clients and the broader legal community that it is not only safe, but desirable, to entrust the largest, most complex commercial cases to international arbitration.
Released on Jun 5, 2023
This article provides an overview of the China International Commercial Court (CICC) and its ‘one-stop’ platform for diversified international dispute resolution, as well as the new developments and benefits that this brings to users of arbitration in Hong Kong, in particular at the Hong Kong International Arbitration Centre (HKIAC). It begins by introducing the purpose of CICC’s establishment, the composition of the CICC, and the functions of the CICC. It then introduces the significance of the HKIAC’s inclusion into the CICC’s ‘one-stop’ platform, as the HKIAC is the only arbitral institution outside Mainland China to be so included. This article explains the existing mechanisms and practices through which arbitration users in an appropriate Hong Kong-seated arbitration may seek interim relief and enforcement of arbitral awards in Mainland China. Finally, this article explores the potential developments for users through the CICC’s new mechanisms and their likely impact.
Released on Jun 5, 2023
The advent of the ‘crypto winter’ in early 2022, which saw cryptoasset values decline sharply and major crypto businesses fall into bankruptcy, has prompted an increase in disputes related to cryptoassets and associated businesses. A notable consequence of this trend is that national courts and arbitral tribunals will face a wave of complex and novel valuation issues over the coming months and years, including in the context of quantifying damages for highly volatile cryptoassets. This article aims to identify valuation challenges in the fast-developing area of business, law and practice that surrounds crypto disputes before making practical suggestions to help parties and their counsel successfully navigate these challenges.
Released on Jun 4, 2023
Although there is a broad consensus that there is a problem of under-representation in the field of international arbitration, progress in tackling this problem has been painfully slow. This is in part due to the difficulty of defining ‘diversity, equity and inclusion’ (DEI) in the field of international arbitration. However, this difficulty should not inhibit or distract from tackling the problem of under-representation. Although users of international arbitration and those who serve as arbitrators shoulder some of the responsibility for promoting DEI, arbitral institutions have an unrivalled platform of opportunity and authority to advance the objectives of DEI in international arbitration. This article therefore offers several measures that arbitral institutions could adopt to advance DEI with more intentionality. These proposals are offered along a ‘Continuum of DEI Intentionality’, reflecting how easy or difficult they would likely be to implement, the boldest proposal being a set of optional rules for arbitral equity.
Released on Jun 4, 2023
Released on Jun 4, 2023
Released on Jun 4, 2023
In recent years there has been an evolution in expert evidence in international arbitration towards the Anglo-Saxon practice of party-appointed witnesses as the preferred means of evaluating highly technical questions. Yet regardless of the type of expert appointed, the fundamental principles of party autonomy in arbitration have to a certain extent divorced the arbitral procedure for expert evidence from the local framework usually in place to control its reliability. This article explores two areas in which the absence of guidance for expert evidence in international arbitration stands in contrast with the procedural safeguards for expert evidence in litigation: first, as to the admissibility of an expert’s opinion, and secondly, as to the professional and ethical regulation of expert testimony. Most of the research is drawn from common law jurisdictions, but consideration is also given to civil law procedures with the example of France being used as a primary counterpart.
Released on Oct 14, 2022
This article discusses, from an arbitrator’s perspective, the approach to preparing the first Procedural Order for the conduct of an Arbitration (Procedural Order No 1), so that it fits with the case specifications. The author advocates the approach discussed at the panel led by Lucy Reed at the 23rd Annual IBA Arbitration Day on 25 March 2022 that arbitrators should consider the specific needs of the case and collaboratively engage with the Parties to identify the relevant issues and appropriate procedure for the case, before circulating Procedural Order No 1. The author gives examples of techniques the Arbitral Tribunal can use to engage in a collaborative approach while retaining the final power to decide upon the procedure, including Procedural Order No 1.
Released on Oct 14, 2022
By including active case management tools in Procedural Order No 1 and Procedural Timetable No 1, the tribunal lays the foundation for maximising efficiency over the life of the proceeding. In this article, the author proposes a number of innovations to be implemented, as the title suggests, to top and tail the process, with additional steps in the middle. The author provides a template Procedural Timetable No 1 and then discusses selected procedural steps with the corresponding text for Procedural Order No 1. The proposals include pre-scheduling several case-management conferences to address procedural issues early and often; holding a mid-stream meeting (aka a Kaplan Early Opening), where parties give short oral arguments and present limited witness evidence; identifying a pre-scheduled mediation window to allow the parties to consider mediation, without either side having to request it; directing the parties to provide a Joint List of Issues and Schedule of References; and scheduling both a pre-hearing Tribunal meeting (aka a Reed Retreat) and deliberation days in the Timetable.
Released on Oct 14, 2022