International Dispute Resolution Practice
International Litigation & Arbitration Update
The 26th Joint Colloquium on International Arbitration
By Barbara Maucher
On November 20, 2009, the 26th Joint Colloquium on International Arbitration took place in Washington, D.C. The event was co-sponsored by the International Centre for Dispute Resolution (ICDR) of the American Arbitration Association (AAA), the International Court of Arbitration of the International Chamber of Commerce (ICC),and the International Centre for the Settlement of Investment Disputes (ICSID).
Outstanding arbitration practitioners and attendees from various backgrounds contributed to a most lively discussion of the topic: “Adapting Arbitration to a Changing World,” – tackling this main theme from the perspectives of: (i) the institutions; (ii) the players; (iii) the issues; and (iv) the instruments.
The three co-sponsoring institutions of the Colloquium first gave an overview on their caseload and the handling of the cases in 2009, with a particular focus on case timelines. Overall, the institutions drew a positive picture, promising to keep up the good work of the past and working on further amelioration with regard to time. Meg Kinnear, the ICSID secretary-general, related that the 2006 amendment of ICSID’s arbitration rules has generally been well received; they have made consideration of amicus briefs easier. John Beechey, Chairman of the ICC International Court of Arbitration in Paris, pointed out that the client focus of ICC has grown stronger. ICC also has observed that clients long for more transparency in the arbitration procedure; and also that courts have become more and more inclined to review the awards. Also, according to John Beechey, a change of the ICC rules was imminent in order to make them more modern and adapted to a changed world. The American Arbitration Association’s president, William K. Slate II, briefly spoke about the new National Task Force on Issues related to the arbitration of consumer debt collection disputes, which is a current hot topic in arbitration.
With regard to the player’s perspective, traditional and recurring questions dominated the agenda, such as the issues of cost, speed and efficiency of arbitration proceedings, document and information exchange, as well as post-award issues. Even though arbitration is still reputed to be faster as well as less costly than regular litigation, statistics speak another language: the costs of today’s arbitration proceedings easily amount to millions of dollars and the average arbitration proceedings last three to five years. During the discussion about document and information exchange, it became again apparent that a careful drafting of the respective arbitration clause ultimately will also pay off in this respect, regardless of which arbitration rules are used. The topic of provisional measures and fast track arbitration also were discussed. One of the major concerns with regard to fast-track arbitration is whether such proceedings present an increased risk of annulment of the award and/or whether the respective award is met with a resistance against enforcement. Presentations and talks on the roles of arbitrators, parties and third parties were also given. The issue of third-party funding has become more important over the years, giving rise to confidentiality issues as well as potentially resulting in more litigation, thus prolonging the overall arbitration procedure.
“The issues” on the agenda included topics such as the financial crisis, the arbitrability of political issues, human rights considerations in international arbitration, as well as corruption. The conference concluded with a discussion on “the instruments”, including a lecture on a hypothetical draft convention on the International Enforcement of Arbitration Agreements and Awards by Albert van den Berg, stimulating discussion, certainly due to the importance of this topic in daily arbitration practice. Jason Fry spoke about arbitration rules in general, with a particular focus on the rising number of multi-party cases and the difficulty of drafting new rules with regard to this phenomenon. Thus, any arbitration practitioner’s creativity will be asked in the future to deal with such issues. The last presentation of the Colloquium was given by Mark Clodfelter who spoke about Model BITs as means of investment protection and their relationship to arbitration.
The next Joint Colloquium on International Arbitration will be held in Paris in November 2010.
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The Eren Law Firm is an international dispute resolution boutique whose other areas of concentration and practice include economic sanctions, anti-money laundering, and international trade regulation.
Mr. Ristau, who leads the Firm’s international dispute resolution practice, is an internationally-recognized law practitioner, professor, and author on international law issues, particularly those dealing with dispute resolution. Mr. Ristau’s private practice consists of transnational litigation and international commercial arbitration. Mr. Ristau also advises clients on a variety of international law matters, including but not limited to, sovereign immunity, diplomatic immunity, international treaties, and international judicial assistance. Mr. Ristau is the author of a two-volume treatise entitled International Judicial Assistance, Civil and Commercial, published by the International Law Institute in Washington.
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Ms. Maucher’s practice focuses on international corporate transactions, transnational financial and trade regulatory matters, and related dispute resolution. Prior to joining the Firm, Ms. Maucher was a lawyer at two leading international law firms in Düsseldorf, Germany, where she concentrated on a variety of commercial, corporate, banking, and intellectual property law matters. During this time, Ms. Maucher also represented clients in multi-jurisdiction litigation and arbitration proceedings and dealt extensively with international conflict of laws and international jurisdiction issues.
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