ACICA & Ciarb Australia International Arbitration Conference

The Rivershed, Brisbane

Walk & Run for Wellbeing Session 1

There was no better way to start the day at Australian Arbitration Week!

Thank you to the fabulous group of people who joined us for the first AAW Walk and Run for Wellbeing on a beautiful morning today in Brisbane. Runners, led by Jay Tseng (Enyo Lawyers) & Jeremy Chenoweth (Ashurst) and the walkers, led by Diana Bowman (ACICA Secretary-General) & Tamara McCombe (eDiscovery COLLAB).

The World Health Organization theme for World Mental Health Day 2024 is ‘Mental health at Work’ to highlight the vital connection between mental health and work. Together as an arbitration community we aim to promote the importance of each others’ wellbeing, especially in our busy professional work and on the arbitration circuit of Arbitration weeks.

ArbitralWomen Breakfast: A Different Discourse on Diversity

Hosted by: ArbitralWomen & MinterEllison

Rapporteur: Sophie Munson, HKA

Speakers:

• Siba Diqer (Litigation Capital Management)
• Anna Kelly (HKA)
• Petrina Macpherson (MinterEllison)
• Beverly Newbold (MinterEllison)
• Robert Tang (Clifford Chance)
• Erika Williams (Independent Arbitrator)

Event report:

After the audience had tucked in to the delicious breakfast spread, the event commenced with Erika, who has been a tireless ambassador for ArbitralWomen and has reached maximum tenure on the board of ArbitralWomen, handing over the baton to Anna who has been elected to the ArbitralWomen Board of Directors for the 2024-2026 term.  Anna then provided an overview of ArbitralWomen: its purpose, the progress to date, and the work which still needs to be done to strive towards diversity and inclusion in arbitration.

Beverley, moderator of the panel session, then introduced the panellists, Robert, Siba and Petrina, and set the aim of the panel discussion: to have a frank discussion about the panellists own personal experience of diversity in arbitration.  ArbitralWomen recognises that diversity is broader than just gender diversity, and the panellists were asked to share, where comfortable, their professional experiences with respect to broader aspects of diversity including culture, linguistics, age, socio-economic factors, and health, in addition to gender.

The panellists were first invited to give an insight into the diversity which they bring to this discussion.  They were then asked to comment on the challenges, but also the advantages, they have faced with respect to diversity in their professional lives.

Robert described his experiences as a first generation immigrant from China and his challenges on arriving in Australia unable to speak English and arising out of cultural and socio-economic differences.  He also commented on the challenges he has experienced with respect to age, being appointed as a young arbitrator.  He recognises that his diversity also brings advantages to his work.  He is aware of cultural differences when working with parties or witnesses from Asian backgrounds, which he uses to tailor approaches to increase the effectiveness of his work.  His language skills enable him to identify nuances with the use of words, particularly Chinese, to ensure accuracy of translations to avoid misinterpretations.  His age increases his familiarity with, and willingness to adopt and embrace technology within arbitration, which can open up opportunities, for example to increase efficiency and reduce the environmental impact.

Siba described her experiences as a female migrant born in Jordan who migrated to northern Queensland in grade 2, who lives with type 1 diabetes.   Her comments also included her experiences with sexism and racism in the professional environment.  In respect of advantages she has experienced as a result of her diversity, her language skills have enabled her to understand comments made by witnesses which other persons attending the hearing couldn’t understand.  She considers that growing up as a first generation immigrant has contributed to her strong work ethic.  Discussing her diabetes publicly has prompted others to open up to her about their own struggles, which has promoted trust and strengthened relationships.

Petrina described her experiences as also a first generation Australian and of growing up in Townsville in northern Queensland.  She has faced adversity from growing up in a different area and going to a university compared to many other professionals in her field, and feels she has had to work harder than people of other backgrounds to prove she is as good.  Petrina believes however that her diversity enables her to talk to anyone, which helps greatly in her interactions with witnesses from all backgrounds.

The personal experiences shared by Robert, Siba and Petrina illustrate that, despite hard work being done by organisations such as ArbitralWomen to promote diversity and inclusion in arbitration, sadly bias, discrimination and preconceptions still exist.  Their experience also shows how having a diverse team can bring multiple advantages which increase the effectiveness and efficiency of arbitration.

Aside from sharing her own personal experiences, Siba emphasised the need for organisations to embrace diversity in order to thrive, citing statistics from the Diversity Council Australia’s Inclusion@Work Index which indicate strong trends between the inclusivity of teams and their output.  The panel also emphasised that, with organisations including clients signing pledges to promote diversity in arbitration, such as the Equal Representation in Arbitration (ERA) pledge, firms may miss out on work if they are not able to put forward a diverse range of candidates.  It is therefore in firms’ interests to support a diverse range of practitioners.

The panel closed this session by emphasising that working towards diversity in arbitration requires buy in from all involved parties.  Law firms can help promote diversity, for example, by putting a diverse range of arbitrator and expert options to their clients.

I think I can speak for the whole audience when I thank the speakers for such an insightful and thought provoking session, and for their openness on this topic.

Australian Arbitration Week Recap: Hot Cakes and Hot Takes: Trends and Developments in Asia’s Energy Sector

Hosted by Norton Rose Fulbright

Rapporteur: Benjamin Batten (ACICA)

Originally posted in the Kluwer Arbitration Blog which can be found here.

On 15 October 2024, Norton Rose Fulbright hosted a breakfast panel discussion on the topic of “Hot Cakes and Hot Takes: Trends and developments in Asia’s energy sector” in Brisbane as part of Australian Arbitration Week.

The panel was moderated by Dylan McKimmie, Head of Arbitration and Co-Head of Energy, Norton Rose Fulbright Australia and comprised:

• Matt Lee, Lawyer, Lindsay Francis & Mangan (formerly Principal, Burford Capital);
• Shanna Svensson, Team Lead, Global Litigation Asia Pacific, Shell;
• Katie Chung, Partner, Norton Rose Fulbright Singapore;
• Ananya Mitra, Senior Associate, Norton Rose Fulbright Australia

Seven key topics were explored by the panel as discussed below.

1. The Status of Conventional Energy Disputes

While the number of renewable energy disputes is increasing, the majority of disputes remain, and will continue to be, in the conventional energy space for some time. This is because there is still a need to supply conventional energy to ensure energy affordability, security, and sustainability of supply while the energy transition occurs.

However, the focus on delivering a conventional energy business in a value-focused way has led to more disputes due to finely balanced economics and resource shortages. For example, due to an increased focus on value with tighter margins, price disputes in LNG projects are becoming more likely and frequent. This contrasts with a more conciliatory approach leading to negotiated outcomes that had previously prevailed in Asia, as discussed further below. The economic climate has also contributed to an increase in other disputes, including in relation to production sharing and joint venture audits.

2. LNG Price Reviews in Asia Versus Australia

Historically, LNG price reviews in Asia were compromised and settled. However, since the first reported LNG price review arbitration arose out of Asia in 2018, there has been a growing number of instances of such price reviews proceeding to arbitration.

In comparing the price review clauses and processes between Asia and Australia, the panel noted four key differences:

1. There is a variety of different language used in price review clauses in Asia which creates a level of uncertainty and potential for disputes. By contrast, Australian clauses often include a last step of arbitration if a negotiated price cannot be agreed. To avoid uncertainty, if the intention is to allow for arbitration at the end of a price review process, that should be expressly stated in the price review clause.
2. In the Asian context, clauses often lack specific benchmarks for price reviews, whereas in the Australian context, clauses are very specific, such as defining what ‘long term’ and ‘comparable’ mean for the purpose of ‘taking into account prices under other long term comparable contracts’. There are pros and cons to leaving the clause broad, with the advantage being increased scope in commercial negotiation.
3. For commercial arbitration in general, arbitration clauses in Asia tend to be institutional (e.g., ICC, SIAC). This gives a level of certainty to the procedure and a guardrail from the institution scrutinising an award. This contrasted with one panel member’s experience of the practice in Australia tending toward ad hoc
4. Finally, parties and experts in Asia rely on third-party aggregated data for price reviews. This contrasts with Australia, where parties can subpoena comparable contracts and can therefore gain more visibility on the terms and prices of other contracts. In both cases, however, there is a need for careful handling of confidential information including through the use of data rooms.

Furthermore, a key lesson from the Asian experience for parties in Australia is to get legal advice and expert input very early on in the process, even before starting price review negotiations. This allows parties to have full visibility of the potential downsides of the wording of the particular clause before engaging with the other side.

3. Diversification of Stakeholders in Energy Disputes

There has been a shift towards more multifaceted and multijurisdictional disputes, as the locations of joint-venture partners and the sources of capital have expanded.

The landscape does not just involve commercial claims or investment treaty claims, but there is also a regulatory and class action risk. This is the case particularly in an environment of rising interest rates, where there is a growing number of Australian companies who will likely need, or for strategic reasons choose, to access external funding to finance these disputes when they arise, as any legal disputes in this area are generally sizeable in nature.

The panel observed that we are also seeing a rise in investor-state arbitration cases, with increasing corporate demand for these services, particularly from Australian mining companies expanding operations overseas. The potential for further investment arbitration to arise from changing political dynamics and the ramping-up of government efforts to meet Paris Agreement targets was also flagged.

4. Increase in Referrals to Arbitration

The panel noted that there has been an increase in energy disputes being referred to arbitration in the Asia-Pacific in three key areas:

1. Disputes related to renewable projects, including solar and offshore wind projects, where disputes arise from the construction itself, the provision of equipment, and the repair and maintenance of equipment. These are exacerbated by set time periods in which construction needs to be completed.
2. Gas price review disputes, as the volatility of LNG prices and deliberate breaches of long-term contracts have led to disputes, with parties beginning to realise a negotiated outcome may not be the best way forward.
3. Upstream oil and gas activities and decommissioning disputes are expected to rise as part of the energy transition to greener energy, with governments wanting to impose more financial obligations on the concessionaire/licensee.

5. Environmental and Cultural Issues

The panel highlighted the global prominence of environmental and cultural protection disputes, with Australia earning a reputation as a leader in the litigation space with respect to some of these ESG issues. Against this backdrop, a company’s social licence to operate is critical for delivering business strategy and avoiding disputes that delay projects or impact reputation.

By virtue of the disputes playing out in very public forums which can affect a company’s social licence, there is a need for business to focus on proactive measures, and to work with governments to get the right policies in place in order to mitigate litigation risk. The panel also stressed the importance of delivering on environmental and cultural commitments in order to build positive relationships and avoid disputes.

As obtaining new capital for LNG and other projects becomes increasingly competitive, the panel re-affirmed that there is now a need for companies to demonstrate a business case that takes account of these ESG-related risks when proposing new projects.

6. Mitigating the Risk of Disputes

There is an increasing trend of dispute lawyers working more closely with transactional lawyers in full-service law firms to make corporate clients aware of the types of structuring and approaches necessary to protect against possible future disputes.

Additionally, rising interest rates, and an increasingly political environment over the last decade (both domestically and internationally) makes it more important to consider jurisdictional risks in long-term investments where different sets of rules can be imposed upon a company at different time-horizons.

Finally, the use of legal finance as an insurance policy to protect against adverse cost exposure is becoming more normalised. Just as arbitration has developed a reputation of being ‘business friendly’, companies in Singapore and Hong Kong are increasingly seeing litigation funding in the same light. The emergence of legal finance in arbitration in these jurisdictions is particularly interesting, given they are not allowed in the domestic court setting.

7. Future Trends and Hubs for Energy Dispute Resolution

The panel predicted an increase in energy disputes and arbitration, stemming from the need for more renewable energy sources in the Asia-Pacific region. From this logic, there should be an increase in disputes related to offshore wind, solar, and hydroelectric power projects in the construction stage, or relating to provision of equipment. The panel also predicted an increase in gas price review disputes as more LNG is used in power stations, which inevitably creates disputes concerning price. The panel also noted the continued positive perception of arbitration within the energy sector, as reported in Queen Mary University of London’s 2022 Energy Arbitration Survey.

Regarding hubs for dispute resolution, the panel considered Singapore to be a top hub for international arbitrations in this area, with Perth and Brisbane also being important locations, owing to the concentration of energy resources that come from these parts of Australia. Australia will continue to be a major supplier  to the Asia-Pacific region, and also accounts for a lot of the developments in LNG infrastructure. With many projects in the region, this will likely influence the location of dispute settlement, as the bargaining power may rest with the project owner or project developer who will want to dictate the seat of arbitration. In response to an audience question, the panel noted that extensive energy projects under construction in the Pacific Islands could contribute to Brisbane being a popular location for the resolution of disputes from this region.

Conclusion

As the panel discussion showed, Asia’s energy sector relies on effective dispute resolution procedures to operate efficiently. With the progress of the energy transition, and conventional energy disputes set to continue in the region, there is a significant opportunity for Australia to emerge as a growing hub for facilitating such disputes.

More coverage from Australian Arbitration Week is available here.

Parallel proceedings in the context of Investor-State Disputes: Investment Arbitration plus one?

Hosted by ACICA and FTI Consulting

Jasmin L’Green, Clifford Chance

Speakers:

• Kate Apostolova, International Partner, Registered Foreign Lawyer at Clifford Chance.
• Ben Juratowitch KC, Barrister at Essex Court Chambers.
• Robert Kirkness, Barrister at Thorndon Chambers.
• Elliot Luke, Counsel at Clifford Chance.
• James Nicholson, Head of Asia Economic & Financial Consulting at FTI Consulting.
• Rob Tang, Partner at Clifford Chance.

Introduction

The esteemed panel discussed the complexities of parallel proceedings in international arbitration, or, as described by one of the panellists, “related proceedings” in the context of investor-State dispute settlement (ISDS). The discussion centred around the multifaceted nature of parallel proceedings, including challenges and risks, mechanisms to address the complexities of parallel proceedings, and practical solutions and future considerations.

1. Challenges and risks posed by parallel proceedings

Parallel proceedings occur where multiple legal actions are initiated involving the same (or similar) facts, legal claims and/or related entities (such as a company and its shareholders). The panel discussed four categories of parallel proceedings, including:

1. Claims arising from the same State measure(s) affecting multiple investors;
2. Claims arising from the same harm with different claimants;
3. Claims commenced by the same claimant using different legal bases; and
4. Disputes between joint venture partners.

Parallel proceedings can lead to a number of challenges and risks such as double recovery, inconsistent rulings, and increased legal costs. The panel noted that double recovery, where a claimant (i.e., the investor in an ISDS case) might receive compensation twice for the same harm against the State, poses significant financial risks to respondent State.

The risk of inconsistent rulings was also a major concern discussed by the panel because different tribunals might interpret legal standards differently, leading to policy uncertainty for States and increasing the complexity of legal advice, particularly on transformative policies such as those related to climate change.

2. Mechanisms to address the complexities of parallel proceedings

The panel explored several mechanisms which exist in arbitration rules and treaties to mitigate the risks associated with parallel proceedings. Consolidation was a key focus, where multiple ISDS proceedings are combined into a single matter to be heard by the same tribunal and decided in the same award. This approach, as provided for in the ICSID Arbitration Rules and the US-Mexico-Canada Agreement, aims to streamline the process and reduce the potential for conflicting outcomes. Another mechanism discussed was the fork-in-the-road clauses, which require investors to choose between local or international proceedings, thereby preventing multiple claims in relation to the same State conduct. However, the panel noted that these clauses can sometimes be circumvented through most-favoured-nation clauses, complicating their effectiveness.

Tribunals and courts also aim to manage and mitigate the risks of double recovery and inconsistent outcomes using a number of procedural tools. For example, tribunals may employ strategies such as staying proceedings or coordinating joint hearings to manage complex disputes, with the potential for permanency if settlements occur and utilizing effective case management strategies. The panel also emphasised the importance of engaging experienced experts to avoid inconsistencies or conflicting evidence or testimony.

3. Practical solutions and future considerations

The panel emphasised the pivotal role of courts and tribunals in managing the legal complexities of parallel proceedings, with a focus on ensuring fair outcomes and avoiding double recovery and inconsistent rulings. The panel was generally sceptical about the potential for resolving these risks and challenges through legislation or treaty-drafting in light of the complexity and variability of the issues. Rather, the panel indicated a preference for pragmatic, commercial approaches that take into account the ultimate commercial and legal interests and aims of the particular client. The panel highlighted the need for tailored solutions that consider the unique circumstances of each case, rather than relying on a one-size-fits-all approach. As the field continues to develop, ongoing dialogue and innovation will be essential in navigating these complex legal waters. Looking ahead, the panel discussed how newer treaties with broader environmental and social clauses might influence the handling of parallel proceedings. As international law continues to evolve, there is potential for new frameworks to address these issues more effectively.

Reflecting on History, Shaping the Future: Australia, the Pacific & the Permanent Court of Arbitration at 125

Organiser: ACICA & PCA

Host: DLA Piper

Rapporteur: Benjamin Batten

Welcome from: Deborah Tomkinson, Senior Adviser, ACICA

Opening Remarks: The Hon Stephen Gageler AC, Chief Justice, High Court of Australia, Member of the PCA

Moderator: Bryce Williams, Legal Counsel, PCA

Panellists:

• Judith Levine, Independent Arbitrator, ACICA President
• Gitanjali Bajaj, Partner, DLA Piper, ACICA Vice-President
• Bill Campbell KC, Honorary Professor, ANU College of Law
• Angelyne Roy, Parliamentary Counsel, Office of the Attorney-General of Vanuatu

Held at DLA piper, this special event celebrated the 125^th anniversary of the Permanent Court of Arbitration.  It explored the relationship between Australia, the Pacific and the PCA in the past, present, and future, through the eyes of arbitrators, counsel, Members of the Court, and PCA officials.

Deborah Tomkinson welcomed all attendees and highlighted ACICA’s longstanding collaboration with the PCA, which has included a formal cooperation agreement in 2010. This agreement is aimed at promoting effective international dispute resolution in the Asia-Pacific region through arbitration, and to provide mutual assistance, such as the organization of hearings in Australia or the Hague, and for educational lectures, seminars, and events at conferences.

In a recorded message, Chief Justice The Hon Stephen Gageler AC provided opening remarks. Chief Justice Gageler emphasised the extensive and impressive list of Australians who have been members of the PCA since 1960,  with members drawn from the judiciary, the legal profession. He also highlighted the PCA’s role in administering complex disputes, such as the Philip Morris v Australia case. Alongside reflecting on his own long-standing relationship with the PCA, Chief Justice Gageler highlighted the growing interest in the PCA’s work in the Australia-Pacific region, with the recent accession of Timor-Leste and Vanuatu to the founding conventions of the PCA.

Before the panellists took to the stand, PCA Legal Counsel Bryce Williams (himself an Australian), gave a brief history of the PCA since its establishment in 1899, outlined the PCA’s structure, and gave an overview of the types of cases heard by the PCA. These include inter-state arbitrations under a variety of different treaties, and ‘mixed disputes’ comprising treaty and national law cases such as Phillip Morris v Australia, and state contract cases such as the Eurotunnel Arbitration, presided over by the late Professor James Crawford. Bryce noted that these disputes cover a range of wide-range of subject matters, with the PCA also having a function to administer dispute settlement systems such as conciliations, and mediations.

Australia’s Engagement with the PCA

The first panellist, Bill Campbell KC outlined Australia’s principal forms of engagement with the PCA. The first is through being a party to arbitrations and a conciliation administered by the PCA. The second, concerns the role of the ‘Australian national group’ (which currently is comprised of the four Australian members of the PCA) in nominating candidates for election to the International Court of Justice. Bill provided a historical overview of Australia’s adoption of the PCA conventions, and concluded by acknowledging the important and continuing role of the Permanent Court of Arbitration plays in Australia’s engagement with international law.

Contributions of Australians to the PCA

Next, Judith Levine discussed the deep and multifaceted contributions of Australians to the PCA, including their participation in PCA cases and their influence on the development of the PCA as an institution. Judith noted that out of the 747 cases administered by the PCA, 71 have had an Australian on the tribunal, with 19 different Australian individuals contributing. Judith also noted that Australians have also contributed as counsel in PCA cases, including prominent speaking roles in important and challenging cases. Finally, Judith highlighted the contributions of technical experts, and the Australians who have assisted as registrars, tribunal secretaries, and legal counsel at the PCA. She concluded by outlining how Australia has contributed to the PCA as an institution through assisting to drive change and innovation at the PCA.

Case Study: The Australia-Timor Leste Conciliation

Gitanjali Bajaj provided reflections and insights on the Australia-Timor Leste conciliation in 2016, including the role of the PCA in this process, and the broader implications of conciliation as a dispute resolution mechanism. The conciliation led to the successful negotiation of a treaty between Timor Leste and Australia, demonstrating the effectiveness of conciliation in resolving entrenched disputes.

Looking to the future: Engagement with the PCA in the Pacific Region

Finally, Angelyne Roy discussed Vanuatu’s recent accession to the 1907 Hague Convention and the potential for wider engagement with the PCA in the Pacific region. Angelyne also emphasised the relevance of the PCA’s work in environmental and climate change-related matters to Vanuatu’s national priorities. Finally, she highlighted the importance of capacity building and support for Pacific Island states, including technical training and opportunities for collaboration.

The panel discussion prompted some fantastic questions from the audience, and the conversations and discussions then continued over lunch which included PCA anniversary cupcakes!

Navigating Global Supply Chain Disruptions: Arbitration Essentials to Safeguard Projects

King & Wood Mallesons

Rapporteur: Ashley Chandler

Speakers:

• Juliana Jorissen, Partner, King & Wood Mallesons
• Scott Watson, Partner, King & Wood Mallesons
• Ruimin Gao, Senior Associate, King & Wood Mallesons
• Prudence Adcock, Senior Associate, King & Wood Mallesons

 In today’s interconnected, and increasingly turbulent world, global supply chain disruptions continue to impact Australian businesses and projects. In this session, a King & Wood Mallesons panel discussed how to minimise and manage such impacts. The panel began with a concise yet comprehensive discussion of the global context underlying such disruptions, before turning to a practical discussion on the role of arbitration in resolving such disputes. Sharing insights from case examples in their practices, Scott Watson, Juliana Jorissen, Ruimin Gao and Prudence Adock highlighted confidentiality, enforceability and flexibility as key features of arbitration that make it a particularly useful tool in such situations.

The context and causes of global supply chain disruption

The session began with an analysis of the context of global supply chain disruptions and their particular impact on the construction sector. Prudence Adock explained that causes include natural disasters, global health crises, overseas conflict, and the continued energy transition. Ruimin Gao expanded on the energy transition and associated regulatory action stemming from pressure on states to comply with international law obligations.

Juliana Jorissen observed that supply chain risk relates not only to equipment and materials but also to labour supply and highlighted the effect of insolvency of suppliers and contractors within the supply chain. Scott then put the discussion in a local context by reference to the Brisbane 2032 Olympics and Paralympics. The event is forecasted to bring an estimated $200 billion worth of procurement opportunities but also carries dispute risk. Tight timeframes for infrastructure construction, reliance on offshore supply chains, and the innovation required to meet Olympic procurement guidelines all contribute to the likelihood of disputes.

Dispute resolution in the face of supply chain disruption

Having set the scene, the panel turned to consider the contribution of arbitration to the resolution of supply chain disputes. This was explored through the lens of four case scenarios taken from the panellists’ experience.

First, Juliana outlined how emergency arbitration might now be used in one of the most exciting cases of her career, which concerned the retention of bespoke underwater cables by the delivering vessel. An injunction was secured before the Singapore courts where the vessel had docked. Juliana reflected, however, that increased sophistication and trust in the emergency arbitration process may now make it the preferable approach – particularly considering that vessels will not always dock in friendly jurisdictions. Ruimin added that in her experience, tribunals once constituted, often show significant deference to the views of an emergency arbitrator, subject to serious error or new evidence.

The second case concerned defects in the façade of a large hospital. The only recourse against the foreign supplier of the façade, who had no presence in Australia, was under a one-page, foreign-language warranty with no dispute resolution clause. Scott detailed the difficulties faced in pursuing this claim against a state-owned enterprise before the courts in that country. These included identifying the correct corporate entity and successfully filing and serving proceedings. Scott emphasised the procedural and enforcement efficiencies that might have been realised had international arbitration been incorporated into the supply agreement at the outset. He also spoke to the importance of knowing who your contracting party is and how you will later recover from them if necessary, and suggested considering additional security such as parent company guarantees.

The third case involved a claim for defective engineering design against an Australian company under an English-law governed contract with a strict liability cap. Consulting with Australian lawyers, the claimant was able to pursue a statutory claim under the Australian Consumer Law, which applied mandatorily to the Australian-domiciled engineer. This provided an avenue for recovery, over which the tribunal accepted jurisdiction, that allowed the company to recover more than the capped liability – a timely reminder of the importance of seeking local law advice.

In the final scenario, procurement agreements for packages of bespoke equipment were novated to the contractor on an offshore oil and gas project. The contractor ultimately faced claims from the principal for alleged defects in that equipment, to which it could not respond without significant input from the sub-contractor suppliers. Scott explained that this situation underscored the importance of consistency in dispute resolution mechanisms between upstream and downstream agreements to facilitate joinder or consolidation under the applicable rules.

The above scenarios painted a clear picture of the contribution of arbitration in the context of complicated cross-border supply arrangements. As highlighted by the panel, it is imperative for businesses to understand their supply chain, both upstream and downstream, in order to avoid, and effectively resolve, disputes. Careful attention to the dispute resolution mechanism at the outset of projects and procurement arrangements can help to ensure efficiency in managing supply chain disruptions should they arise, as well as successful enforcement of any relief obtained.

The Future of Mining Disputes: New Dimensions for Arbitration

Hosted by Three Crowns

Rapporteur: Molly McJones

Speakers – Penny Martin and Liz Snodgrass (Three Crowns)

There are a number of risks associated with mining projects, some of which include political and regulatory, environmental and social, and technical / geotechnical and operational. Liz Snodgrass (Partner) and Penny Martin (Counsel) from Three Crowns presented an insightful session on risk management strategies in the mining disputes space. Three of those key management tools, which are discussed further below, are: (1) investment treaty protection, (2) effective contractual mechanisms and (3) flexible dispute resolution procedures.

Investment treaty protection

Investment treaties provide a backstop of international legal protection for investors. They enshrine rule of law guarantees which can include a promise of fair and equitable treatment, prohibition on discrimination among investors or prohibition on discrimination between foreign and domestic investors. Australia is currently in the process of modernising its treaties in reaction to criticisms that have been raised regarding both the process (i.e. that private individuals decide behind closed doors whether a state has complied with its international law obligations) and substance (i.e. managing the balance between impeding otherwise desirable state actions with an obligation to pay investors) of investment treaties. However, there remains a robust network of these treaties, both pre and post modernisation which offer rule of law guarantees for foreign investors.

Recently, mining disputes have become one of the largest sectors involved in investment treaty arbitration. To obtain investment treaty protection, investments can be structured and/or restructured to channel investments through a country that has an investment treaty with Australia.

Effective contractual mechanisms

Another way of managing risk in long term mining projects is through contractual mechanisms. For example, representations and warranties are increasingly used to cover ESG obligations. With respect to managing political risk, the most direct way is to agree a stabilisation clause with the host government. Such a clause protects the investor against changes in law of the host state which could adversely affect the project. A force majeure clause is another tool that can be used to allocate risk and identify a way in which the project can operate in a way that feels fair and reasonable to both parties. Liz and Penny suggested that if a force majeure scenario arises, practically speaking, a party should:

• document its compliance with the force majeure provision (including ongoing monitoring and assessment);
• exercise care in the creation of non-privileged documents;
• consider legal holds and the preservation of documents; and
• identify a clear basis for the force majeure declaration in correspondence including communicating clearly and early on what part of the force majeure clause is being relied on.

Flexible dispute resolution procedures

Liz and Penny noted that while historically used for technical and confined disputes, there has been a recent uptick of interest in expert determinations as they can be an effective tool in achieving an early settlement. On the other hand, parties should think carefully about whether providing for the determination of preliminary issues is a friend, or a foe that carries the risk of slowing the Tribunal proceedings down.

More broadly, Liz and Penny provided the following advice regarding the drafting of arbitration clauses:

• choose a neutral forum (particularly when dealing with a long term project in a foreign jurisdiction, the host state of the project is not an ideal choice of forum);
• keep it simple (use a model clause as the foundation and avoid the temptation to read the future);
• consider whether multi-tiered clauses are more trouble than they are worth (in the worst case scenario, multi-tiered clauses can impose a jurisdictional hurdle which can threaten the validity of an arbitral award and at a minimum, can slow down the process of getting to arbitration – if the parties involved are open to negotiating and engaging constructively, they will likely do so regardless of whether negotiation is required under a dispute resolution clause).

The session provided a number of practical tips on how to manage the risks associated with mining projects. In a country like Australia where mining is by far its largest export industry, it’s no surprise that Liz and Penny’s session on the future of mining disputes was standing room only.

Australia should have a more significant presence in Asia as an International Arbitration Centre – Lighthouse Club Australia

Sponsored by Rimkus and Corrs Chambers Westgarth

Hosted by Corrs Chambers Westgarth

Rapporteur: Eleanor Clifford

Speakers:

• The Hon. James Allsop AC – Sydney Arbitration Chambers Australia and Atkin Chambers UK
• The Hon. Wayne Martin AC KC – Francis Burt Chambers Australia and 39 Essex Chambers UK, Malaysia and Singapore
• Penny Martin – Counsel, Three Crowns, Singapore
• Shashank Garg – Independent Counsel, Chambers of Shashank Garg, India

This event took the form of a light-hearted (but content heavy!) debate on whether Australia should have a more significant presence in Asia as an International Arbitration Centre. The affirmative case was put forward by the Honourable James Allsop AC and the Honourable Wayne Martin AC KC, while the negative case was argued by Penny Martin and Shashank Garg.

Affirmative case – Australia should (and will) have a more significant presence in Asia as an International Arbitration Centre

The Honourable James Allsop AC began the debate by explaining the attractiveness of Australia as a centre for international arbitration within Asia. His Honour spoke of the strength of Australia’s key industries that are necessary to establish a thriving arbitration community. This includes our legal offering, as well as our high quality engineering, accounting and finance professions which can support arbitrations determined in Australia or under Australian law. Additionally, the Australian litigation funding landscape is one of the most sophisticated in the world. While some assume that a thriving international arbitration centre must be a centralised city-state (like Singapore) or a historically dominant arbitration city (like London), all of Australia’s major cities have the necessary industries to run a successful arbitration and their own specialisations such as mining, energy or finance.

Despite Australia’s late start and historically provincial attitude to arbitration, this view has disappeared and Australian courts have clearly established themselves as pro-arbitration. The success of Australian Arbitration Week shows the strength of Australia’s arbitration community, which means that Australia can (and will) establish itself as an international arbitration centre in the future.

The Honourable Wayne Martin AC KC continued the affirmative case, by outlining statistics on the  number of arbitrations heard by arbitral institutions throughout Asia.. These statistics show that there is room for Australia to grow its market share and leverage its existing trade relationships in the region to attract arbitration to Australia. Australia has many practical advantages, due to its geography and time zone alignment with Asia. We are on the door step of the major growing economies and this accessibility makes Australia an attractive option for international arbitration. Additionally, Australia has a unique legal offering, with a less expensive legal profession, strong mediation culture, large arbitrator community and world leading expertise in mining and resources.

Negative case – Australia should not have a more significant presence in Asia as an International Arbitration Centre

Penny Martin is an Australian living in Singapore, who first took the stage to argue against her native country. She made the case that Australia is not yet entitled to argue that it should have a more significant presence as an international arbitration centre in Asia. Australia needs to improve its arbitration offering before it stakes a claim to greater arbitration prominence in the region.

Australia does not present a compelling case as an arbitral seat in and of itself. The federal legal structure is seen as a risk to international parties, which cannot be resolved until a standardised model Australian commercial law or code is implemented. This solution will likely not be available for many years. Compared to Singapore and Hong Kong, Australia also does not have a legislature or court system which responds quickly to arbitration issues that require real change.

Additionally, it’s a crowded market and Australia’s arbitration community must be lean, nimble and slick to compete with other centres in Asia. This means that everyone needs to be moving in the same direction and working towards a clear vision. Despite the progress we have seen in Australia in recent years, Australia needs to put forward a compelling case as to why it’s better than arbitration centres like Hong Kong and Singapore, rather than simply matching what they have to offer.

Finally, Australia still insists on a split profession between solicitors and advocates, which runs against established international arbitration practice. Many sophisticated clients only want to deal with a single set of lawyers, so using counsel is an oddity and an unnecessary expense. The Australian arbitration community needs to build a flexible profession to offer clients every opportunity to want to arbitrate in Australia.

Shashank Garg concluded the event for the negative team, discussing statistics which show that the majority of Australian users of arbitration choose Singapore as the seat over Australia (and that Australia has the highest rate of shark attacks in the world). He discussed the fact that there are several neutral seats across Asia and Australia does not stand out in its offering compared to its competitors. Additionally, Australia’s arbitration community is still too small to offer a viable alternative. While ACICA has two hundred available arbitrators, SIAC has a panel of over seven hundred and HKIAC has over one thousand. Respondents in the ACICA / FTI Australian Arbitration Survey noted that the pool of arbitrators was too shallow.

Australia also needs to be more business focussed and cost effective. Even if the Australian legal market is cheaper than Europe or the United States, it can’t compete with India or China. Even though Australia has high quality arbitration lawyers, arbitrators and venues, they are not yet designed to attract clients from Asia.

Outcome

The negative team were declared the winners of the debate following a tightly contested vote by audience applause. Todd Spiller (National Secretary of Lighthouse Club Australia and Partner at Corrs Chambers Westgarth) wrapped up the event by thanking the panellists and Lighthouse Club Australia for organising the event.

Global Trends in International Arbitration and their relevance to Australia

Hosted by Level 27 Chambers

Rapporteur: Kai Allison

Moderator: Roger Traves KC (Level 27 Chambers)

Speakers: James Penrose (Level 27 Chambers); Tim Elliss (Level 27 Chambers); Tamlyn Mills (Norton Rose Fulbright)

Note: Sarah Spottiswood (Level 27 Chambers) was scheduled to speak at this session but was unable to attend.

This seminar brought together arbitration professionals to discuss significant trends shaping arbitration practices both in Australia and globally. With presentations focusing on varied developments observed in the profession, attendees gained insight into how these changes are likely to influence the future of international arbitration.

1. Conflicts of Interest and Arbitrator Disclosure

James Penrose led the discussion on conflicts of interest and the evolving standards for arbitrator disclosure, highlighting recent (May 2024) amendments to the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration. Penrose flagged amendments to general standards 1, 3 and 4; as to the latter, he emphasised the importance of the “duty of curiosity” which stipulates that a party is presumed to know any facts that a reasonable enquiry would have yielded.

Penrose examined recent proceedings in which arbitrator conflict was considered, including Port Autonome de Douala v. Douala International Terminal (Paris Court of Appeal No. RG 20/18330) in which a Paris Court of Appeal set aside a partial award on the basis that a eulogy given by an arbitrator at the funeral of counsel in the arbitration gave rise to reasonable doubts as to the arbitrator’s independence and impartiality.

2. Arbitration Involving Sanctioned Entities

Tim Ellis, speaking from his experience as a former London-based commercial dispute resolution practitioner, addressed the complexities of arbitration involving sanctioned entities, particularly in the context of the ongoing conflict between Russia and Ukraine. He observed that sanctions on Russian individuals and Russian entities has had a huge impact on litigation in the London Commercial Courts and on the practitioners that represent Russian parties.

Ellis outlined the practical challenges to legal practitioners posed by sanctions. This included the need for practitioners to obtain licences if they intended to act for Russian parties, and the difficulties faced by firms in negotiating with banks to receive payment for Russian parties for their services as well as facing the impact of Russian counter-sanctions which prevented their clients from remitting payment for legal services abroad.

3. Trends in the Enforcement of Investor-State Awards

Tamlyn Mills is an experienced dispute resolution practitioner with a current practice encompassing international arbitration and related court proceedings. Mills rounded off the seminar by taking a comparative approach to a discussion on how domestic legislation considers foreign state immunity, and considered the approach UK, Australian, and US Courts.

Mills explained that cases continued to emerge in these jurisdictions – notably in Australia – and encouraged practitioners to key an eye on what was an interesting and evolving space in international arbitration.

In sum, the seminar provided a brief but valuable overview of notable developments in international arbitration, highlighting the importance of adapting to changes in governing rules, geopolitical circumstances and domestic legislative approaches. Attendees left with a deeper understanding of how these trends are likely to shape the future of international arbitration in the years to come.

Fraud and Corruption in International Arbitration – A Mismatched Couple under a Single Roof

Hosted by HWL Ebsworth

Rapporteur: Caitlin Philp

Speakers:

• Ross Williams (Partner, HWL Ebsworth)
• David Smallbone (Barrister, Frederick Jordan Chambers)
• Hermann Knott (Partner, Kunz Rechtsanwälte)
• Erika Willliams (Independent Arbitrator, Williams Arbitration)
• Monica Chong (Partner, Wong Partnership)

Fraud, bribery and corruption can occur at several stages across the lifecycle of the arbitral process. The panel discussion at the Tuesday afternoon session, moderated by Ross Williams, revealed the complexities and questions in this space that the arbitration community continues to grapple with.

Fraud in the transaction

Erika Williams began the discussions, focusing on the tribunal’s jurisdiction in cases where the underlying transaction is tainted by fraud. In the commercial agreement context, she highlighted the relevance of the doctrine of separability, as demonstrated in the English Court of Appeal’s reasoning in Harbour Assurance Co. (UK) Ltd. v. Kansa General International Insurance Co. Ltd., that the arbitration agreement can survive even where there is illegality in the underlying agreement. Ms Williams also touched on the unique issues that fraud and corruption pose in the context of investment disputes. Citing several cases, Ms Williams illustrated how the legality of the investment (under the host state’s laws) is crucial for the tribunal to have jurisdiction.

Another issue is the burden of proof, because the seriousness of an accusation of corruption demands clear and convincing evidence, which is at odds with corruption being notoriously difficult to prove. In the context of arbitration, adverse inferences are permitted where evidence is lacking, but Ms Williams explained that caution should be exercised in drawing any adverse inference, as it should only be made if it is a natural inference from the facts.

How should the Tribunal react when allegations are raised?

Hermann Knott then discussed the questions for a tribunal to consider when allegations of fraud are raised. This will depend on the way that the allegations are raised, and Mr Knott gave examples of where the fraud emerges through criminal investigations or prosecution, vs. if it is raised by the respondent. In the first case, he emphasised that in principle, issues around corruption should be dealt with in arbitration and a stay should not necessarily be granted. Ideally, there would be harmony between the outcome of the proceeding and the criminal investigation. However, he also acknowledged the potential divergence between the outcomes of arbitration and criminal proceedings, and noted that a conviction could lead to restitution of the arbitral award after the set-aside period (as in Nigeria v P&ID), though restitution is not provided for in UNCITRAL.

Impact of corruption on enforcement

Providing a Singaporean perspective on the impact of corruption on enforcement, Monica Chong noted the difficulties of trying to set aside an award on the basis of fraud or corruption under the New York Convention or Model Law, though there is a public policy ground to refer to. There are two baskets which should be treated differently: one where fraud is involved in the procurement of contracts, and another where fraud is involved in the arbitral process (such as through bribing witnesses or the suppression of evidence).

Relevant to this topic was the case Navayo and MEHIB v. Ministry of Defence of Indonesia, where the three-month setting aside period had expired. While there was an arguable case of fraud, which could have buttressed the Ministry’s position, Giles J held that where fraud is not properly investigated at the time when it could have been, it invokes considerations of procedural fairness if the Respondent had time to present their case during the arbitration. However, Ms Chong observed that the tribunal may look at new evidence under compelling circumstances, noting the ‘unclean hands’ doctrine.

Considerations for practitioners

David Smallbone rounded out the panel discussion, raising a question from Nigeria v P&ID: what should the tribunal do when the representation of one party is so inadequate that the arbitral process fails to function? The lawyers who had appeared in the arbitration had been acting corruptly, for example, receiving privileged documents from the other side, and the tribunal had not done all that it could to find out more. This goes to the fundamental function of the Tribunal, being the administration of justice. How far that obligation will reach has been left open for future consideration.

Eurobank

Another interesting case study was Eurobank Ergasias S.A. v. Bombardier inc. A Canadian court was asked to consider the scope of the fraud exception, in circumstances where there had been a fraudulent call on a letter of guarantee (a standard security instrument in the arbitral process) by the claimant in an ICC arbitration. When the issuing bank made payment despite knowing it was improper, and called upon another bank who had issued a letter of counter-guarantee, the latter refused to pay. The court held that this scenario was within the fraud exception to strict performance bonds, because of the issuing bank’s knowledge and participation in the fraud.

This led to an interesting Q&A session on the ethical questions arising in these circumstances, while dark storm clouds loomed on the horizon. Attendees waited out the storm by sharing drinks and nibbles generously provided by the hosts.

Ciarb Australia Annual Lecture 2024

Hosted by: Norton Rose Fulbright

Guest Speaker: Walter Sofronoff KC

Topic: International Arbitration: Multicultural Ethics and Professionalism

Reporter: Yuriy Netrusov

The Ciarb Australia Annual Lecture this year was given by Mr Walter Sofronoff KC, a prominent mediator, arbitrator, ex-Solicitor-General of Queensland (2005-2014), and ex-president of the Queensland Court of Appeal (2017-2022).

Mr Sofronoff KC embarked on a journey to explore the ethical challenges in international arbitration, focusing on the differing ethical standards among lawyers from various jurisdictions and exploring potential solutions such as the introduction of a universal ethical code.

Indeed, lawyers representing parties in international arbitrations come from different legal traditions, each with its own set of professional rules and ethical standards. This can lead to potential conflicts in how each lawyer conducts their duties, raising questions about the fairness of the arbitration proceedings. Thus, it could be concluded that the absence of a uniform ethical framework can lead to situations where one party may have an unfair advantage due to the differing ethical obligations of their legal representatives. A lawyer, for example, may face strict disclosure requirements in one jurisdiction but be bound by confidentiality obligations in another. This led the audience to inquire about what arbitrators can do in such scenarios.

Mr Sofronoff KC drew the audience’s attention to three ICSID cases to demonstrate how arbitrators handled what were said to be questions of counsel conduct: Hrvatska v Slovenia ICSID Case No ARB/05/24, Rompetrol v Romania ICSID Case No. Arb/06/03 and one unreported case. Each of these cases involved a situation where one of the parties applied for an order to compel the opponent to refrain from using one of their retained lawyers. In Hrvatska v Slovenia the lawyer had a pre-existing relationship with one of the arbitrators which was said to give rise to a reasonable apprehension of bias. In the other two cases, the respondent’s lawyer had a previous relationship with the applicant, which was said to give rise to a conflict of duty and duty. However, Mr Sofronoff KC rightly observed that none of these cases involved (a) any allegation that a lawyer had breached an ethical code; (b) any consideration of the content of any ethical codes; (c) any issue of conflicting ethical duties; or (d) any desire by a party to discipline a lawyer.

He argued that in most scenarios, when the arbitrators are faced with lawyers’ misdeeds, the tribunals have the authority to rectify or rebalance those misdeeds through various orders, such as orders for costs. However, the focus should be on the tribunal’s ability to adjust the proceedings in a way that allows them to move forward fairly rather than imposing additional punishments like fines, which don’t benefit the progress of the case. Thus, he posed a question: “Why should an arbitral tribunal, whose job it is to determine a dispute, have any interest in disciplining a lawyer?”

Mr Sofronoff KC also discussed the possibility of creating an international code of conduct for legal proceedings. Such a code would provide clear guidelines, reducing ambiguity about the ethical obligations of lawyers from different jurisdictions. This would help avoid situations where one party might gain an unfair advantage simply because their lawyer is subject to less stringent ethical rules. In addition, a universal code would eliminate the ethical disparities between lawyers from different legal systems, ensuring that no party can exploit more lenient ethical standards to gain the upper hand in the arbitration process. Finally, by adhering to a common set of ethical rules, lawyers would help build a more trustworthy and robust arbitration framework.

Mr Sofronoff KC suggested that while the universally adopted rules of conduct would not face much dispute in principle, challenges would arise in practice. For example, in Europe, judges play a more inquisitorial role, controlling the case and determining which witnesses and documents are relevant. On the other hand, in adversarial systems like those in the U.S., lawyers are more involved in preparing witnesses and collecting evidence. Mr Sofronoff KC emphasises that these differences reflect distinct legal cultures rather than ethical conflicts. For instance, the obligation to produce documents in a proceeding is governed by the procedural rules of the arbitration, not by ethical codes.

In his view, the core issue is not conflicting ethical standards but rather differing cultural and procedural attitudes. European lawyers may be more passive in document production, whereas in adversarial systems, lawyers are expected to actively engage in discovery. Misunderstandings can arise when lawyers from different legal traditions interact, leading to potential challenges in international arbitration or proceedings.

Furthermore, Mr Sofronoff suggested that there is already a high degree of consistency in the ethical codes of various jurisdictions, particularly those that adhere to the rule of law. For example, most legal systems impose obligations of honesty, confidentiality, and good faith, and these principles are reflected in the codes of conduct for lawyers in countries such as Italy, Japan, and Australia. The real issue, he argued, is not ethical disparity but rather the need for clear procedural rules that ensure fairness in arbitration proceedings.

By concluding the lecture, Mr Sofronoff KC acknowledges that the ethical challenges in international arbitration are real, but they are often exaggerated. While the creation of a universal ethical code might help standardise the conduct of lawyers in cross-border disputes, it is not a panacea for all the issues in international arbitration. In his view, while ethical codes are important, they are not the primary source of fairness in arbitration. The real solution lies in empowering tribunals to take appropriate action when misconduct threatens the fairness of the process, whether through sanctions, orders, or other remedies. By focusing on procedural clarity and fairness, rather than on creating a rigid ethical framework, the arbitration community can continue to evolve in a way that promotes both integrity and flexibility.

Navigating the Field in Sports Disputes

39 Essex Chambers

Rapporteur: Benjamin Batten

Speakers:

• Paul Hayes KC, Barrister, 39 Essex Chambers
• The Hon. Wayne Martin AC KC, Barrister, 39 Essex Chambers
• Paula Robinson, General Counsel, Brisbane 2032 Olympic and Paralympic Games

In the second panel of Australia Arbitration Week to explore the exciting and evolving world of Sports dispute resolution, this evening panel provided an insider’s perspective on the current legal landscape in institutional sport. In particular, the panel explored the commercial drivers that require prevention of escalation of dispute and explored the role that ADR can play and the added value it may bring to the resolution of commercial sport-related disputes. This was done through highlighting recent case studies across the spectrum of the Sports dispute resolution field.

Setting the Scene: The Value of Global Sports

Paul Hayes KC started the discussion by discussing the rapid commercialization of sport and the growth of the global sports market, now valued at nearly half a trillion dollars. The sports market represents about 1% of the world’s GDP, with significant broadcasting deals such the IOC awarding rights for the Olympic games becoming billion-dollar deals. For example, NBC Universal paid $7.65 billion for 10 years of Olympic product, while the EBU deal is estimated at around $1.5 billion. Paula Robinson then explained the funding model for the 2032 Olympic Games, and how the organising committee must ultimately raise sponsorship, ticketing, and merchandise revenue to fund the games. Whilst broadcasting revenue is critical for talent pathway and community participation in the various sports, The Hon. Wayne Martin AC KC, reflected on his experience as chair of the Western Australia Football Commission and noted that there can sometimes be a tension between how to best administer the game at the community level, and the desire of Professional Leagues to increase the broadcasting value of their leagues, given the immense value of live sport, particularly now through online subscription-based platforms.

Pure Sporting Disputes vs Conventional Legal Disputes concerning Sport

In framing the discussion for the rest of the session, Paul drew a distinction between pure sporting disputes (such as doping, eligibility, and sport-specific integrity issues), and conventional legal disputes concerning sports. Paul explained that pure sporting disputes are typically handled by institutions such as the National Sports Tribunal (‘NST’) or the Court of Arbitration for Sport (‘CAS’), while conventional legal disputes concerning sports are typically dealt with by the courts or a where there is an arbitration clause; an institutional arbitral tribunal, or in an increasing number of disputes, the CAS.

Paul explained that the movement away from amateurism in the Olympics towards a thriving commercial entity with monetised broadcasting rights and paid athletes, has seen a large increase in the number of both pure sporting disputes and conventional legal disputes. In particular, the CAS now deals with both of these, and in 2023 had over 900 matters filed at it, which was higher than prominent arbitration institutions such as SIAC, HKIAC and the LICA in the same year.

Rights Protection

Paula explained how a key component of the Olympic Games is to protect the commercial properties of the Olympic Games, alongside broadcasting rights and sponsorship agreements which companies have invested considerable funds in. Paula gave an overview of how the host city contract with the IOC (which is publicly available), and Paul highlighted some of the types of legislation which will apply during the games to protect these interests.

Ambush Marketing

In further developing the issues and potential disputes surrounding rights protection, the panel gave some examples of ambush marketing campaigns, and explained how ambush marketers often find creative ways to associate their brand with major events without breaching legislation.

Conventional Legal Disputes: Personal Injury and Concussion

Paul then provided an in-depth look at the growing area of conventional legal disputes in sports: personal injury and concussion claims. The NFL’s $765 million settlement for concussion-related brain injuries, and the recent AFL class action, were given as examples of the increasing number of concussion claims. Paul and Wayne discussed how the science behind concussion risks are evolving, and there is a need for sports administrators to incorporate this knowledge to try and reduce concussion risk for those who play AFL football.

Conventional Legal Disputes: Construction and Stadium Design

Given the need for new stadiums to be built alongside temporary infrastructure erected for the games, the panel also discussed how the design of sports venues must consider safety and compliance with regulations to avoid legal disputes.  This is particularly important given recent cases in Australian state courts concerning stadium design and safety, alongside the range of legislation and building codes which will apply to future infrastructure being built for the Olympic Games.

Mediating Sports Disputes

Beyond arbitration, Wayne Martin highlighted the opportunities for, and challenges of, mediating disputes in the sporting context. Wayne emphasised that from his experience, the overarching aim is to balance the interests of all parties and finding a fair resolution.

Concluding Remarks

To wrap up a highly informative and engaging evening, Paul reflected how conventional litigation where sport engages with existing law, has come to overtake the pure sporting disputes which sports law initially started as. Paul recapped the key themes of the panel, and highlighted how the increased money being invested in sport, will continue to set a backdrop where commercial disputes concerning sport may regularly arise.

The Great Debate

Hosted by Corrs Chambers Westgarth

Rapporteur: Eleanor Clifford

Host: David Anthony (Corrs Chambers Westgarth)

Team Litigation: Cameron Sim (Debevoise & Plimpton), Timothy Bunker (Corrs Chambers Westgarth), Karen Petch (Twenty Essex and New Chambers)

Team Arbitration: Monty Taylor (Tenth Floor Chambers), Penny Martin (Three Crowns), Callista Harris (7 Wentworth Selborne and 3 Veralum Buildings)

Back by popular demand for the fourth year running, the Great Debate began with David Anthony introducing the speakers and this year’s topic – summary proceedings. As always, the tone of the debate was light-hearted, with the teams just as focussed on who can get the biggest laugh as who can make the strongest argument.

Team Litigation

Cameron Sim began the debate for team litigation, having switched sides from his previous appearance for team arbitration.  While he noted that he believes arbitration is almost always superior to litigation, the one exception is summary adjudication. Litigation’s strike out and summary judgment processes allow unmeritorious claims to be efficiently squashed. Arbitration, on the other hand, faces the insurmountable challenge of Article V(1)(b) of the New York Convention, which provides that a party may oppose recognition and enforcement of an award on the basis that it was denied due process, including where it did not have an opportunity to present its case. This aspect of arbitral law means that arbitral tribunals are too constrained by due process paranoia to summarily dismiss claims.

Tim Bunker made three short “undeniable” points in favour of litigation. First, summary procedures before courts are much more well established, which allows judges to be confident in their decisions, unlike arbitrators who are scared to get their hands dirty. Second, it is inevitable that any summary dismissal before an arbitral tribunal will end up before the court anyway, due to the strict due process requirements imposed on arbitration. Finally, the “con” of confidentiality means that lawyers are not even able to revel in the glory of their victory in achieving a summary dismissal, which cuts against what makes the legal profession fun and worthwhile.

Karen Petch closed out Team Litigation’s case by pointing out that no party wants their summary dismissal application to be heard by an arbitrator appointed by the other side. Instead, parties want these procedures to be heard by a judge who is looking to get the matter over and done with as quickly as possible. The only benefit of facing a hopeless claim is to be able to read about it the next day in the paper, which isn’t an option in arbitration due to confidentiality. In Australia, we have an efficient judiciary that does not need to be avoided and should be embraced when it comes to summary procedures. Arbitrators should not be afraid of a fight and should let the entertaining stories of summary dismissal be played out for the world to see.

Team Arbitration

Monty Taylor compared the mindset of judges and arbitrators when dealing with summary proceedings. The test for summary dismissal is extremely high, requiring the claim to be manifestly without legal merit or, in some jurisdictions, having no chance of success. While judges were appointed many years ago, with full dockets and a desire to free up their workload, arbitral tribunals only exist because of the dispute. The natural desire for a tribunal to continue to exist (and for the arbitrators to spend a few more nights in a nice hotel paid for by the parties) means that arbitrators are better placed to determine this high threshold and only summarily dismiss a claim when absolutely necessary. While the differences in approaches by judges and arbitrators will never be patent or obvious, the subconscious effect means that the implementation of the high bar set by summary dismissal is best placed in the hands of arbitrators.

Penny Martin continued her life long quest to prove that arbitration is better than litigation, by emphasising the “choose your own adventure” nature of arbitration where parties can choose their own rules, including regarding summary procedure. Parties to an arbitration can even choose whether they want summary procedures to be available in the first place! While the standard for summary dismissal is higher in arbitration, even if you are unsuccessful, you have still had an opportunity to show the weaknesses of the other side’s case to the tribunal. Additionally, the institutional rules have created a streamlined process for summary procedures, which gives arbitration the edge over litigation.

Callista Harris began her retort by pointing out that, unlike the litigation team, she had brought some real academic arguments to the table in favour of summary procedures in arbitration. First, the extent to which due process paranoia prevents tribunals from summarily dismissing claims is vastly over exaggerated. Institutional rules provide safe guards to ensure due process in summary proceedings and the fact that a case was summarily dismissed does not guarantee that a party can resist enforcement of an award. The New York Convention, correctly interpreted, does not provide for summary dismissal as a ground for setting aside or resisting enforcement of an award. She concluded by pointing out that arbitration should win by default, as the only team which presented reasoned arguments in the course of the debate.

Conclusion

The debate was put to a vote and, for the first time ever and despite Team Arbitration’s protests, resulted in a draw! It was another great night and great debate, and we hope to see everyone next year as the AAW Great Debate tradition lives on.

Filling in the Gaps: Inferences, Presumptions and Burdens of Proof

Hosted by Deloitte

Rapporteur: Liam McInerney (LK Law)

Originally posted in the Kluwer Arbitration blog which can be found here.

Australian Arbitration Week continued in full force on the morning of 16 October 2024, with ACICA45’s panel discussion named,  “Filling in the Gaps: Inferences, Presumptions and Burdens of Proof”, hosted by Deloitte.  The panel was moderated by Brisbane-based ACICA45 Steering Committee members Oliver Cook (Barrister, Level 27 Chambers) and Zara Shafruddin (Associate, Jones Day).  Drawing on perspectives from a solicitor, a barrister and an expert, the panellists comprised:

• Matthew Shelley (Partner, Herbert Smith Freehills)
• Kate Grimley (Partner, Deloitte)
• Mark Johnston KC (Barrister, North Quarter Lane Chambers)

After enjoying breakfast and coffee provided by Deloitte, the moderators commenced with some opening remarks, introducing ACICA45 and the conundrum at the centre of the panel discussion: while institutional rules differ, tribunals may not always be empowered to compel the production of documents and attendance of witnesses to give testimony.  So how do tribunals, parties and their legal representatives overcome gaps in evidence?

The Framework and Starting Propositions 

International arbitration presents an opportunity for flexibility in presentation and consideration of evidence, but that flexibility cannot come at the cost of rigour.  The fundamental requirement under Art 35.1 of the ACICA Rules 2021 is that each party bears the burden of proving the facts relied upon to support its claim or defence.  This requirement is reflected in many institutional rules or is otherwise a convention in many jurisdictions.  Where parties fail to produce certain documents or make available certain witnesses to give testimony, a tribunal may draw an adverse inference against that party, subject to the limitations elucidated further throughout the panel discussion.

How Does A “Gap” in Evidence Arise?

With the basic issue now identified, the panel took a step back to ask the question: how do documentary evidence gaps arise in the first place?

The panel identified that clients from different jurisdictions and legal customs will come to an international arbitration with different expectations about what documents they will be required to produce, and what documents they will receive from the other party.  Some clients assume that discovery will provide a treasure trove of documents allowing them to prove their case, whereas others will expect a significantly narrower discovery exercise.  Managing client expectations from the outset is therefore imperative.  Claims should be framed by reference to not only what documents are likely to exist, but what documents are likely to be produced within the relevant framework and customs, either voluntarily or by order of the tribunal.  While typically there are mechanisms for requests for production to be made to the tribunal, care ought to be exercised to avoid putting the tribunal offside with an overwhelming volume of requests.

Identifying a True Gap in Evidence

Identifying a gap in documents is not always straightforward and the assistance of an expert may be beneficial.  An expert may be able to opine on what documents would typically exist by reference to their experience in a particular industry and the location of the business.  This process can assist lawyers to identify any documentary gaps.  Experts can then work together with parties and lawyers to identify whether those documentary gaps are material and important, such that requests for production should be pressed, or whether those matters can be established by other documents or lay witnesses.

The panel observed that the International Bar Association Rules on the Taking of Evidence in International Arbitration 2020 (“IBA Rules”) limit requests to produce documents to those ‘relevant to the case and material to its outcome’ (IBA Rules, Art 3(3)(b)).  That imposes a somewhat higher standard than what Australian practitioners may ordinarily encounter, with the commonplace test of ‘relevance’ or even ‘direct relevance’ Uniform Civil Procedure Rules 1999 (Qld)being insufficient under the IBA Rules.  The panel also discussed the tribunal’s lack of coercive power and what steps a tribunal might take if documents are not disclosed, including granting a party leave to apply for a subpoena in a court with relevant jurisdiction (see e.g. Australia’s International Arbitration Act 1974, s 23) or warning parties about inferences that may arise.

What Inference Can Arise?

The panel identified that the inference permitted under the IBA Rules is more significant than the usual Jones v Dunkel inference that Australian practitioners may be familiar with.  Art 9(6) of the IBA Rules permits a tribunal to infer that a document not disclosed (‘without satisfactory explanation’ and after production has been ordered) would ‘be adverse to the interests of that Party’, not simply that the document would not have assisted the party.

The panel briefly discussed what a ‘satisfactory explanation’ under the IBA Rules might comprise. Once again, an expert witness could provide insight into whether one should ordinarily expect a particular kind of document to exist and to be preserved.

The panellists’ general consensus was that such inferences rarely have a material impact on, let alone determine, the outcome of a case.  However, the panel cautioned that parties may still lose credibility before a tribunal for failure to comply with document production requests.

While the nature and content of an inference will depend on all the circumstances, the panellists posited four considerations:

1. The extent of the inference must be reasonable in all the circumstances.
2. There must be a logical connection between the document not produced and the adverse inference sought to be drawn.
3. An inference cannot be used to support mere suspicion or intuition.
4. An adverse inference sought to be drawn cannot be inconsistent with facts otherwise established.

Of course, a tribunal may still refuse to draw an inference that may be available to it.  Parties should not lose sight of their ultimate burden of proof and the applicable standard of proof.  Ultimately, any available inferences drawn (or refused to be drawn) will simply form part of the broader pool of considerations the tribunal will draw upon to determine whether the requisite standard of proof has been met by the party bearing the burden.

What Ethical Considerations Arise?

The panel identified the difficulty that arises when participants to proceedings are operating under different ethical frameworks and legal customs.  There is a risk that clients can feel as though the dispute is not a fair fight if their legal representatives are held to more rigorous or burdensome standards of ethical conduct than the opposing party.  While strictly beyond the scope of the panel discussion, this author notes that Art 9(4)(e) of the IBA Rules emphasises the need to maintain fairness and equality between the parties, particularly if they are subject to different legal or ethical rules, when the tribunal considers issues of legal impediment or privilege.

In the context of adverse inferences, advocates must ask themselves whether an inference is reasonably open, and if there is a proper basis for inviting the inferences to be drawn.  Advocates should not fear inviting an inference to be drawn, unless of course there are circumstances they are aware of which would make such a submission misleading to the tribunal.

Ethical challenges may arise for experts in the grey areas where experts genuinely have differently held opinions on the spectrum of available beliefs.  Experts should ensure they are comfortable that they have chosen the most appropriate approach, while acknowledging there are other approaches available.  The panel also briefly discussed how slightly differing expert roles might give rise to separate ethical considerations (for example, in the case of a testifying expert as opposed to a consulting expert).

The panel concluded this discussion by reminding attendees that the role of the advocate is not to convince their client or their opponent, but to persuade the tribunal.  Parties should not lose sight of this essential function. Parties should consider their ethical obligations but should not make submissions simply because they meet the minimum threshold of being ethical.  Advocates should ask whether their submission is compelling and forms part of an overall strategy that is sound.

Parties’ ethical obligations, and particularly the conundrum that arises when different parties’ representatives are subject to different obligations, was the focal point of the Q&A discussion that ensued after the panel formally concluded.

Conclusion and Key Takeaways

Attendees were greatly enriched by the panel discussion, with the moderators summarising three key takeaways:

1. The four-limb test posited by the panel for when an inference may be drawn is an extremely useful starting point.
2. Parties may benefit from a low-friction approach to document production requests, and should carefully consider whether their overall strategy necessitates a more adversarial approach.
3. How parties and tribunals deal with inferences will always depend on the specific circumstances of the case. In other words, how do we deal with inferences, presumptions and the burden of proof? Well, it depends…

More coverage from Australian Arbitration Week is available here.

Topic: Getting the Most out of Your Accounting Expert

Sponsor: Ankura Consulting

Rapporteur: Evan Wright and Alana Kirby

Speakers:

• Moderator: Christine Oliver – Head of Disputes & Economics Australia, Ankura
• Premjit Dass – Managing Director, Ankura
• Evan Goldman – Partner, MinterEllison
• Karen Petch – Barrister, New Chambers

Expert witnesses are used in almost every arbitration. They play a critical role providing insights and analysis that can be influential in the outcome of a case. This session, hosted by Christine Oliver, an experienced accounting expert at Ankura, provided valuable guidance on how to get the most out of your accounting expert in an arbitration.

The session began with a discussion on the key attributes that lawyers look for when engaging an expert in arbitration proceedings. It goes without saying that it is essential for the expert to have the requisite technical skill set, however, the panel also highlighted the importance of selecting an expert that is independent and able to communicate effectively.

In an arbitration, where issues are often evolving, the expert can provide valuable support to lawyers by helping them to identify and understand the issues at all stages of the proceeding However, the panel stressed the importance of the expert always maintaining independence – as it is the role of the legal team be the advocate for the client, not the expert. It is the expert’s non-biased opinions that make them valuable, and the panel discussed how it can be detrimental if the expert appears to be advocating on the client’s behalf. Instead, the expert should be focused on providing clear, unbiased insights to ensure their opinions are credible and respected by the tribunal.

The panel also emphasised the importance of the expert’s ability to communicate effectively, both written and verbal. When the expert can produce reports that are clear, concise and focused on the key issues, it ensures their views and analysis are useful and clearly understood. This is particularly important in an arbitration where in most cases there are a range of complex issues being considered. Giving oral evidence in an arbitration setting can be more challenging for experts where there are multiple tribunal members, rather than just a single judge, and who may each have different expertise and specialise in different disciplines. The panel discussed how building a rapport in these circumstances presents a challenge for the expert. To overcome these challenges, the panel highlighted the importance of engaging an expert who is able to answer questions directly and clearly to ensure the responses are comprehensible to each of the tribunal members. The panel also recommended that experts do some research on the tribunal members prior to giving evidence, including reviewing previous judgements, in order to better understand how to pitch their responses.

Another key topic the panel discussed was how to effectively brief an expert in an arbitration Having regard to the greater flexibility in an arbitration process compared to litigation, the panel agreed that when briefing an expert, it is beneficial to involve them as early as possible in the process. When engaged early, the expert can help to shape the instructions, assist with information requests, and help to refine strategies and clarify issues. It is common in arbitration for unforeseen issues to arise which makes general discussions with experts beneficial, however the panel acknowledged the balance that experts must maintain between staying within their expertise and being helpful in addressing issues. The panel suggested a sensible approach is to keep the expert’s instructions general in the first instance which allows for flexibility as issues evolve and crystallise later in the proceedings. This approach helps accommodate the natural development of issues that were not initially anticipated.

Arbitration Year-to-Date 2024 – Updates from around the world and what lies ahead

Hosted by Jones Day

Rapporteur: Ashley Chandler

Speakers:

• Pip Goldman, Partner, Jones Day
• Zachary Sharpe, Partner, Jones Day
• Zara Shafruddin, Associate, Jones Day
• Lucy Martinez, Independent Arbitration

In this seminar, Jones Day drew on its global expertise, along with the insight of independent arbitrator Lucy Martinez, to deliver a comprehensive overview of significant developments in the arbitration landscape over the last 12 months. With a focus on Australia, Singapore and the UK, the panel shared insights on key recent cases, changes to major institutional rules and legislation and emerging trends

Australia

The session began with a discussion of key case developments in Australia, including the recent High Court decisions in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 and CBI Constructors Pty Ltd & Anor v Chevron Australia Pty Ltd [2024] HCA 28 dealing with the applicability of proportionate liability regimes to arbitration and the effect of bifurcation on arbitrator’s jurisdiction.

Hankuk Carbon Co Ltd v Energy World Corporation Ltd 2024 FCA 232 was then pointed to as a shining example of the efficiency with which the Federal Court of Australia can enforce foreign arbitral awards. In this case, the awards in question were enforced within a period of two months, following ex parte proceedings and an innovative approach to the formulation of enforcement orders.  The approach struck an appropriate balance between efficiency and fairness. Returning closer to the host city, SFP Events Pty Ltd v Little Swamp II, Inc & Anor [2024] QSC 132, the most recent arbitration-related judgment of the Supreme Court of Queensland, was discussed as an example of the pro-arbitration stance of the local judiciary. The Court held it need only be satisfied on a prima facie basis that there is an arbitration agreement to stay court proceedings in favour of arbitration.

Singapore

The discussion then turned to developments in Singapore, canvassing recent trends evidenced in SIAC’s case statistics and an analysis of judgments rendered over the past four years. The latter revealed 81% of set aside applications and 92% of challenges to enforcement were dismissed by the Singapore courts. One such unsuccessful challenge to an award was seen in CVV and others v CWB [2023] SGCA(I) 9. The court clarified, however, that while a failure to give reasons in an award does not of itself constitute a ground for challenging an award, it may amount to a breach of natural justice if it evidences a failure by the tribunal to apply its mind to the issues or the adoption of a chain of reasoning of which the parties did not have reasonable notice

By contrast, in DJO v DJP and others [2024] SGHC(I) 24 the court set aside an award both for apprehension of bias and for a breach of the fair hearing rule. The key takeaway here is that repeat appointments may open to the door to potential arbitrator challenges if pre-judgment or failure to consider issues is apparent on the face of the award. In in the insolvency space, the court in Re Sapura Fabrication Sdn Bhd and another matter (GAS, non-party) [2024] SGHC 241 held that two Singapore arbitrations could proceed despite a Singapore moratorium on claims in support of Malaysian insolvency proceedings.

Lastly, the upcoming release of the updated SIAC Rules was discussed. Key proposed amendments include the lifting of the expedited procedure limit from SGD 6 million to SGD 10 million and allowing the making of an emergency application prior to the filing of a notice of arbitration.

United Kingdom

In the UK, upcoming changes to the LCIA rules were flagged as well as the ongoing reform of the UK’s Arbitration Act. The extensive consultation on the reforms confirmed that the act was working well with no need for complete overhaul. Rather, the proposed amendments include changes reacting to recent case law developments, such as a proposed statutory rule on the governing law of an arbitration agreement to replace the rule established in Enka Insaat ve Sanayi AS v. OOO Insurance Company Chubb [2020] UKSC 38. One proposal which remains subject to debate is the potential inclusion of provisions regarding a duty to safeguard against corruption. This question has arisen following the decision in Nigeria v P&ID [2023] EWHC 2638 (Comm). There, the Court upheld the challenge to the award on the basis that it was obtained by fraud and conduct contrary to public policy, including bribery of witnesses, improper retention of privileged documents and perjury by key witnesses.

Aiteo E&P Company Ltd v Shell Western Supply and Trading Ltd & Ors [2024] EWHC 1993 (Comm) was pointed to as a rare example of a successful set aside application in the UK. Based on a successful challenge to one of the arbitrators who had failed to disclose all of a number of repeat appointments by the same firm, this case serves as a reminder not only to arbitrators but also appointing counsel of the importance of disclosure. Notably, codification of an arbitrator’s duty of disclosure is included as a proposed amendment to the Arbitration Act, following the earlier case of Halliburton Company (Appellant) v Chubb Bermuda Insurance Ltd [2020] UKSC 48.

Concluding remarks

As can be seen, developments in international arbitration across key jurisdictions have continued apace over the last 12 months and this session served as a helpful update for all attendees.

Comparative Perspectives on the recognition and enforcement of arbitral awards against States

Hosted by Corrs Chambers Westgarth

Rapporteur: Eleanor Clifford (Corrs Chambers Westgarth)

Speakers:

• Nastasja Suhadolnik (Corrs Chambers Westgarth)
• Ben Juratowitch KC (Essex Court Chambers)
• Swee Yen Koh SC (WongPartnership)
• Chester Brown SC (7 Wentworth Selborne Chambers and Essex Court Chambers(
• Robert Kirkness (Torndon Chambers)

Nastasja Suhadolnik began the event by introducing the esteemed panel and the topic of discussion – recognition and enforcement of awards against States and State entities. The panel considered recent case law developments in various jurisdictions and identified hot button issues courts have been grappling with.

State immunity from jurisdiction for the purpose of recognition and enforcement

Each of the panellists provided an overview of the current legal positions across a range of jurisdictions. Chester Brown SC kicked off the event by summarising the Australian position, including the High Court decision in which it determined that immunity from recognition and enforcement had been waived via Spain’s accession to the ICSID Convention (Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11). Chester explained that the same outcome was reached for recognition and enforcement of non-ICSID Awards in CCDM Holdings, LLC v Republic of India (No 3) [2023] FCA 1266.

Ben Juratowitch KC explained that the English High Court reached the same outcome as the Australian High Court in Infrastructure Services Luxembourg SARL & Anor v Kingdom of Spain (Rev1) [2023] EWHC 1226 (Comm)). However, in a more recent case, the English Commercial Court held that assent to the ICSID Convention did not constitute submission to English courts and the court was entitled to consider jurisdictional issues for the purpose of determining whether immunity had been waived (Border Timbers Ltd v Republic of Zimbabwe [2024] EWHC 58). However, immunity from jurisdiction was held to be irrelevant at the stage of recognition. Both these cases were heard before the English Court of Appeal this year and the resulting judgment should clarify the English position on this issue.

Swee Yen Koh SC provided a summary of the position in Singapore and Hong Kong. In Singapore, courts have held that a State is taken to waive immunity where it has agreed in writing to submit a dispute to arbitration. While there are no reported decisions with respect to ICSID enforcement, Swee Yen’s view is that Singapore courts are likely to adopt the same position as Australian courts.  The position in Hong Kong is less clear following China’s implementation of a new foreign state immunity law on 1 January 2024. Hong Kong is legally bound to follow the rules and policies of the PRC on foreign state immunity and is, therefore, expected to switch from the absolute doctrine of foreign state immunity to the common law position which is reflected in the new Chinese law.  However, while the Hong Kong courts can be expected to apply the substance of the new law from 1 July 2024, its precise application in the context of specific proceedings remains to be tested.  Swee Yen expects to see more jurisprudence on this issue coming out of China and Hong Kong in the near future.

Robert Kirkness explained that the New Zealand position aligns with Australian law and reflects the fact that New Zealand has implemented a large portion of the ICSID Convention into domestic legislation. Robert also discussed the position in the United States, where the D.C. Circuit Court heard consolidated appeals of the NextEra, 9REN and Blasket decisions and held that Spain had waived immunity from jurisdiction by virtue of being party to the Energy Charter Treaty. Interestingly, in an exercise of judicial economy, the judgment did not consider the effect of Spain being party to the ICSID Convention on its foreign state immunity, so this question remains live in the United States.

Relationship between EU law and treaty obligation

Nastasja Suhadolnik noted that an issue which continues to arise, particularly in Spain’s efforts to resist enforcement around the world, is the enforceability of intra-EU investment treaty awards following the Court of Justice of the European Union’s Acmea and Komstroy decisions. Chester Brown SC provided an overview of these decisions and the impact they have had on foreign enforcement efforts, noting that this issue was briefly raised in the High Court’s Infrastructure Services decision but not fully ventilated. Ben Juratowitch KC discussed his view that intra-EU awards are clearly enforceable under international law despite the ideological issue underlying Spain’s arguments that EU law must be given primacy over State’s obligations under international law.

Transnational issue estoppel

Nastasja Suhadolnik explained that enforcement forum shopping is becoming more common as award creditors search for friendly jurisdictions in which to enforce sovereign award debt, which has (among other things) led to a rise in jurisprudence on transnational issue estoppel. Swee Yen Koh SC discussed the recent decision of the Singapore Court of Appeal in The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 10 which upheld the lower court’s decision that issue estoppel precluded India from raising the same jurisdictional arguments relating to foreign state immunity that it argued before the court of the seat of the arbitration. Swee Yen explained the basis for the “primacy principle” endorsed by Singapore courts which reflects the special position of seat courts in the New York Convention. Robert Kirkness mentioned that it is important not to treat the issue of transnational issue estoppel as a monolith and questioned whether the logic underpinning issue estoppel, being finality to a dispute and international comity, applies equally to decisions of enforcement courts and seat courts. The panel had an interesting discussion about the merits of differentiating decisions of seat courts from enforcement courts and the support for such a position in the New York Convention.

Immunity from execution and alter egos

The panel concluded with a discussion on the live question of State immunity from execution of awards. Chester Brown SC discussed the challenges that arise from identifying assets of a State and executing against assets held by State-owned enterprises. Chester mentioned the American approach which considers whether a State-owned company is an alter ego or agent of the State and the various tests applied by courts to determine whether State-owned companies are entitled to foreign state immunity.  Ben Juratowitch KC was asked about the recent lecture by Professor Philippa Webb, in which she identified a potential solution via the concept of a comprehensive waiver where a State is taken to have waived immunity from jurisdiction as well as execution. Ben noted that this was already the law in France and other jurisdictions, and the question has become more relevant as States are attempting to resist execution more frequently. Ben also explained that when it comes to enforcement against States’ alter egos, it is important not to conflate the test that applies in the enforcement context with the test applied in the context of attribution of acts of State organs to the State under international law. It is clear that this is a live issue before courts around the world and we can expect significant jurisprudence in this area for years to come.

Conflicts: Choosing, Losing, Schmoosing and Recusing Arbitrators

Hosted by Norton Rose Fulbright

Rapporteur: Nick Wray-Jones

Speakers:

• Nick Hopkins KC
• Daniel Allman, Partner, Norton Rose Fulbright
• Tamlyn Mills, Partner, Norton Rose Fulbright
• Erika Williams, Williams Arbitration

In this session, the panel covered a wide range of issues that arise in relation to the selection, appointment, and potential loss of arbitrators (through conflicts or otherwise) in light of recent developments including the new 2024 IBA Guidelines on Conflicts of Interest in Arbitration (IBA Guidelines) and the High Court’s recent decision in CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 (Chevron).

Choosing Arbitrators

Erika Williams began by outlining strategies for choosing arbitrators. The parties contract is always the starting point and may, for example, require a lawyer with a certain level of experience or a technical expert (such as a chartered accountant) to be selected. Parties may look to resources available from ACICA or the Resolution Institute to assist in finding an appropriate arbitrator.

Depending on the process for selection, parties should be cautious to put forward all of their preferred arbitrators to the other party, who may assume that the nominated arbitrators would be favourable to the nominating party and, on that basis, reject them out of hand (and therefore exclude them from later selection by an independent nominating body). Conversely, parties should generally not refuse to agree to all of the options put forward by their counterparty without good reason, to avoid the same issue.

Once nominated, under the previous IBA Guidelines, parties had a 30 day window in which to object to an arbitrator’s appointment for a conflict of interest, with the 30 day period starting after facts said to give rise to the conflict having been disclosed to or uncovered by a party. The new IBA Guidelines now also provide that parties are deemed to have learnt of relevant facts if reasonable enquiries would have uncovered them. It remains to be seen how far parties must go to satisfy the “reasonable enquiry” test in relation to information available on the internet (particularly on social media) – for example, query whether reasonable enquiries would require a party to have uncovered a Facebook friendship between an arbitrator and a lawyer involved in a matter.

Schmoosing Arbitrators

Daniel Allman next considered the implications of “schmoosing” arbitrators (a term unfortunately not defined in the IBA Guidelines). The term’s Yiddish origins previously implied nothing more than a passing conversation or chat, but the term can now usefully be used to refer to relationships or communications which may give rise to a risk of a real or perceived conflict of interest. An example from case law included an arbitrator stating that they were “extremely good friends” with a party’s expert witnesses.

Courts are generally reluctant to interfere with the parties’ contractually agreed selection of an arbitrator. However, there is a spectrum of communications and relationships that can give rise to a conflict. While past familiarity with an arbitrator may be insufficient, evidence of a close personal relationship may be enough – each case must be considered on its own facts. Again, courts are still grappling with the implications of social media for conflicts of interest.

Recusing Arbitrators

Relatedly, Tamlyn Mills continued by expanding on the circumstances in which arbitrators may be required to recuse themselves. Case law shows a tension between an overly expansive approach to recusal and a more confined approach that allows for ordinary relationships and prior communications between experienced arbitrators and practitioners, witnesses, and arbitration institutes. For example, would it be excessive to require partners in a large law firm, before agreeing to act as arbitrators, to confirm with each of the other partners in their firm that there are no existing or past relationships between the other partners and a party, even if the nominated partner themselves has no such relationship?

Courts do not always agree as to the appropriate limits, and some judgments express concern about an overly broad approach eroding confidence in arbitral awards and undermining the effectiveness of arbitration as a means of private dispute resolution. The legal tests for a conflict of interest also vary between jurisdictions, and therefore it would be possible that some examples of successful recusal applications overseas would have been decided differently had they been heard in Australia (having a stricter test).

Losing Arbitrators

Nick Hopkins KC concluded by considering other circumstances in which parties can lose an arbitrator, namely through the doctrine of functus officio whereby a decision-maker’s power to make decisions is spent and cannot be re-exercised.

In the High Court’s recent decision of Chevron, arbitral proceedings were bifurcated into hearings on liability and quantum. An interim award was made on “all issues of liability”, after which the appellants had repleaded their case on quantum. Rather than there being a bright line delineating issues of liability and quantum, the repleaded quantum case also gave rise to a new case on liability, and the issue therefore was whether the Tribunal had “spent” its authority to make a further decision on liability. The High Court characterised the interim award as “a final and binding determination of the issues with which it dealt”, with the consequence that the Tribunal had exhausted its jurisdiction to decide issues of liability.

As a consequence of Chevron, Tribunals must be very careful when bifurcating proceedings, and should consider accounting for the overlap and lack of clear distinction between issues of liability and quantum. Had the interim award not been expressed to exhaustively deal with issues of liability, the result may have been that the Tribunal was not functus officio following the repleaded case.

Walk & Run for Wellbeing Session 2

A perfect way to refresh amidst the packed AAW calendar!

Thank you to the wonderful group of people who joined us for the second AAW Walk and Run for Wellbeing. Walkers were led by Judith Levine (ACICA President) and Erika Williams (Independent Arbitrator), and runners were led by Daisy Mallett (Legal Counsel and Arbitrator) and Mark Mangan (Lindsay, Francis & Mangan).

The beautiful morning was made even better by the guest appearance of Rosie and Buddy, brought along by Erika. The walk / run provided a very welcome reset after a jam packed week of arbitration events, and allowed us to come together as a community and prioritise each other’s wellbeing.

Australian Arbitration Week Recap: International Arbitration in the Pacific—Reform and Capacity Building

Rapporteur: Amy Cable, Erin Eckhoff (Ashurst) and Emma Garrett (Senior Assistant Editor)

Originally posted in the Kluwer Arbitration blog which can be found here.

The Pacific region, with its rich tapestry of cultures and diverse political landscapes, presents both unique opportunities and formidable challenges for international arbitration. As nations within this region strive to attract foreign direct investment (“FDI”) and foster economic growth, the role of arbitration becomes increasingly pivotal. On 17 October 2024, during the Australian Arbitration Week 2024, a distinguished panel of experts convened to discuss the current state and future prospects of international arbitration in the Pacific. This discussion underscored the critical need for ongoing reform and capacity building, while also highlighting the importance of cultural sensitivity and local engagement. From the trailblazing efforts of Fiji to the nuanced approaches of Tonga and the Solomon Islands, the conversation revealed a complex yet promising landscape for arbitration in the Pacific.

The session was introduced by Jeremy Chenoweth (Partner, Ashurst, Brisbane) and moderated by Erin Eckhoff (Senior Associate, Ashurst, Sydney) with a panel comprising of:

• Daniel Meltz AM (Barrister and Arbitrator, 12 Wentworth Selborne Chambers, Sydney; Expert Consultant, Asian Development Bank (“ADB”))
• Jon Apted (Partner, Munro Leys, Fiji)
• Rose Kautoke (Senior Crown Counsel, Attorney General’s Office, Kingdom of Tonga)
• Ake Spiros Poa (In-House Counsel, Solomon Islands Electricity Authority; ACICA Pacific Islands Practitioner Scholarship recipient)

Setting the Scene

Mr Chenoweth gave the opening remarks and spoke to the wider agenda for reform in the Pacific region. Ms Eckhoff set the scene for the discussion, highlighting the regional diversity across the Pacific region and describing this both as a strength and a challenge when it comes to developing a cohesive framework for international arbitration. While there have been significant strides in recent years in the promotion of international arbitration in the region (for example, earlier this year Papua New Guinea (“PNG”) adopted laws governing both international and domestic arbitrations; see here and here), there is room for further reform and capacity building across the region.

The Role of International Arbitration in the Pacific – The ‘Why’ Case

The encouragement of FDI is often cited as a key justification for the promotion and reform of international arbitration, in particular in developing countries and regions (see further here). Mr Meltz opened the discussion with his thoughts on the topic, describing FDI as the “invisible hand” of international arbitration reform; one of the key thoughts in a foreign investor’s mind is “what happens if something goes wrong?”, and where international arbitration is the chosen dispute resolution mechanism, investors will have the confidence that they will be able to enforce their rights later down the line. From a government perspective, Ms Kautoke noted that a primary aim behind the international arbitration reform in Tonga has been to encourage trade and investment, however this is balanced with the need to protect local businesses.

Fiji’s international Arbitration Regime – A Trailblazer?

Ms Eckhoff noted that Fiji is generally considered to be a trailblazer for international arbitration in the region: it acceded to the New York Convention (“Convention”) in 2010, enacted the International Arbitration Act in 2017, and in recent years, the Fijian High Court has granted multiple stay applications in favour of arbitration (see further here).

On the condition that he was speaking only from the Fijian perspective, Mr Apted explained that while there has indeed been an uptake of arbitration clauses in contracts with foreign investors, there remains a strong preference amongst local practitioners and businesses to seek vindication before the local courts. Secondly, cost is an important factor; not only is the cost of arbitration administered by certain institutions prohibitive, but also local practitioners may see their case load threatened by an alternative to the slow pace and the procedural complexities of the local courts, which they rely on for their business. On the flipside, he noted that the Fijian judiciary was amongst the strongest proponents of reform, precisely because of the need to lessen the workload of the courts.

Mr Apted concluded (and Mr Spiros Poa agreed) that there needs to be targeted outreach to local practitioners and businesses to educate them about what arbitration is and what it can offer. Echoing this, Mr Meltz noted that while there was significant input from the ADB at the outset of international arbitration reform in Fiji, capacity building needs to be ongoing.

Legislative Regimes Across the Region – The ‘State of Play’

The authors note that the Pacific region lacks a unified legal framework for resolving cross-border commercial disputes through international arbitration—the Convention has been adopted, ratified and applied inconsistently across the region.

Ms Kautoke summarised the state of play in Tonga. She explained that the Tongan International Arbitration Act 2020 was enacted in view of the pressing need to attract FDI. However, while the Act adopts the UNCITRAL Model Law with a number of additions, there is no legislation for domestic arbitration (as illustrated in two recent cases: Fe’ao Vunipola v Tonga Rugby Union and Kacific Broadband Satellites International v Registrar of Companies et al. (see further here and here). Ms Kautoke added that these cases demonstrate why there must be a clear understanding of what arbitration is. She noted that capacity building is a major challenge, and the Tongan government is open to seeing how it can further develop its expertise.

In the context of the (potentially) prohibitive cost of arbitration, Ms Eckhoff posed the question whether, in terms of an arbitral institution, there was a preference for something “closer to home”. Mr Spiros Poa explained that, at least in the Solomon Islands, the general feeling is that having a local arbitral institution is not sustainable given the size of its economy. In his view, while a wider Pacific-based institution may be an option in the future, the general preference would be for well-known institutions with a track record. Mr Apted added that there is an opportunity for institutions such as ACICA to ensure they have individuals on their panel of arbitrators with not only the relevant experience and know-how but also a clear understanding of the cultural aspects that may be at play. Ms Kautoke and Mr Spiros Poa also emphasised that in order to make the arbitration experience positive for Pacific-based users, cultural sensitivity is key, from institutions and arbitrators alike.

Ms Eckhoff observed a leaning towards a Med-Arb process across the region, with PNG, for example, having encouraged mediation more generally through the enactment of the Alternative Dispute Resolution Rules 2022. Mr Spiros Poa explained that ADR is a familiar method of resolving disputes in the region; his experience in the Solomon Islands and PNG is that businesses are more comfortable resolving disputes in a less formal setting. Thus, a Med-Arb process or other hybrid system may be more appropriate.

Cultural and Political Landscape in the Pacific – The Role of Traditional Customs

Ms Kautoke explained that traditional customs play a significant role in resolving disputes across the Pacific region, and each jurisdiction takes a different approach according to their own culture and customs. She noted that where there is a foreign party with little understanding of the cultural aspects at play, this can present difficulties. Hence, there is a need for capacity building both “on the ground” and in respect of other stakeholders, including arbitrators, to develop understanding as to the relevant cultural aspects and landscape.

Mr Apted added that a “post-colonial cringe factor” is common across the Pacific region: he explained that there is a general fear of being judged or seen as provincial by foreign stakeholders (including arbitrators) who do not understand the local culture and customs. Additionally, he explained that Fijian clients have a general view that justice should be “for free”, and paying fees to an arbitrator to decide a case does not sit well with this.

The Future of Disputes in the Pacific

To wrap up, Ms Eckhoff invited views from the panellists as to the types of disputes they see on the horizon in the region. Mr Spiros Poa’s view, as an energy specialist, was that there will be plenty of disputes in the construction and mining industries, particularly those arising from engineering, procurement and construction contracts, and power purchase agreements, as well as the renewables sector.

Ms Eckhoff further noted that Pacific region jurisdictions do not feature heavily in the investor state dispute settlement (“ISDS”) space and queried whether there is a general consensus in the region not to enter into investment treaties which provide for ISDS by way of international arbitration. Mr Meltz noted that in his view this is a particularly sensitive topic from a sovereign risk point of view, with a sense of vulnerability coming from the developing economies across the region.

Concluding Remarks

The panel discussion highlighted the crucial role that cultural awareness plays in the development of international arbitration in the Pacific. Effective capacity building and reform efforts must consider local perspectives and traditional customs. It is essential for all stakeholders involved in international arbitration in the region—including foreign investors, legal practitioners, arbitral institutions, and arbitrators—to understand and appreciate the significance of culture and its nuanced differences across the Pacific region.

This concludes our coverage of Australian Arbitration Week 2024. More coverage of Australian Arbitration Week is available here.

Challenges to Arbitrator Appointments: legal landscape and practical tips

Hosted by Clayton Utz and Level Twenty Seven Chambers

Rapporteurs: Johnson Choi, Clayton Utz and William Hettrick, Clayton Utz

Speakers:

• Ben Juratowitch KC, Essex Court Chambers, London
• Lucinda Brabazon, Level Twenty Seven Chambers, Brisbane
• Kate Reading, Senior Associate, Clayton Utz, Brisbane
• Moderated by Ryan Cable, Senior Associate, Clayton Utz, Brisbane

Challenges to arbitrator appointments can be strategic or a necessity, and sometimes both.  Guidance on how, when and why to challenge is provided by soft law and institutional rules, however it is not always enough to overcome the hurdles put forth by the often-nuanced circumstances which may give rise to a challenge.  Each State has its own laws with respect to the requisite threshold for challenging an appointment, either on the basis of a real danger of bias or appearance of bias, and this contrast can prove daunting at the enforcement stage.

In this thought-provoking session, we had the pleasure of hearing from an esteemed panel to learn more about the state of play in respect of challenges to arbitrator appointments and practical tips when selecting, and challenging, an arbitrator and knowing when and why to challenge and appointment.

Threshold for challenge to arbitrators

Challenges to arbitrators will only succeed if there are justifiable grounds as to their lack of independence or impartiality. As to the differences, impartiality relates to the arbitrator’s frame of mind whereas independence relates to whether there are sufficient structures in place to isolate the arbitrator from external factors.

Ben discussed the different approaches in establishing justifiable grounds:

• In an Australian seated arbitration, justifiable grounds exist if there is a “real danger of bias” (s 18A of International Arbitration Act 1974 (Cth)).
• In England, justifiable grounds exist if a fair-minded and informed observer would conclude that there is an appearance of bias (see Aiteo Eastern E&P Co Ltd v Shell Western Supply and Trading Ltd [2024] EWHC 1993 and Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48).

These differing approaches may cause issues at the recognition and enforcement stage under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). The panel and audience discussed a situation where for example:

• the arbitration is seated in Australia, and thereby applies the real danger test;
• a challenge to an arbitrator was refused as it did not meet this threshold;
• the judgment debtor, which made that challenge, has substantial assets in a jurisdiction that applies the appearance of bias test; and
• the judgment debtor challenges the award on the grounds that it is contrary to public policy of the state (Article V(2)(b) of the New York Convention).

Whilst it is arguably unlikely that the challenge to the award based on idiosyncratic standards will meet the high standard necessary to meet the public policy exception, the possibility is there.

IBA Guidelines – Stop when red, think when orange, go when green

To help us better understand the legal landscape, Lucinda first took us to the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines).  The IBA Guidelines set out the well-known ‘traffic light’ approach. The panel and audience shared their experiences with the traffic light approach:

• Red list situations were rare but an audience member turned down an arbitral appointment due to the prospective appointee having acted for a subsidiary of one of the parties, in circumstances where the subject matter of the arbitration involved the same transaction in which they acted for the subsidiary, despite there being a gap of around 10 years.
• As to green light situations, Lucinda highlighted that the Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131 case was a good example. There, the challenge was unsuccessful as it was a vague connection – the arbitrator was a partner of King and Wood Mallesons Australia, and King and Wood Mallesons China had acted for a subsidiary of the respondent.
• One example was put forward by the audience which elicited some debate from the panel, where the prospective chair of a three-member tribunal turned down the appointment due to being in the same chambers as counsel for the respondent. The question arose as to whether this is something practitioners are seeing more frequently, and whether it means chambers are being seen as law firms. Both questions were answered in the affirmative. It is of course debatable but something to be mindful of.

Reasonable enquiries – how long is a piece of string?

It is trite law that arbitrators have a disclosure obligation. Whilst an arbitrator may breach their disclosure obligations, this does not necessarily mean that they lack the requisite impartiality to justify their removal or to set aside an award that has already been rendered (Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48).

Now, parties are under an obligation to undertake reasonable enquiries, which runs parallel to the arbitrator’s disclosure obligation. The IBA Guidelines were amended in 2024, with the most significant amendment being to General Standard 4(a) which introduced the following text:

“A party shall be deemed to have learned of any facts or circumstances [under 4(a)(ii)] that a reasonable enquiry would have yielded if conducted at the outset or during the proceedings.”

This appears to introduce a ‘constructive knowledge’ element which is then shaped by the ‘reasonable enquiry’.  But what is a reasonable enquiry?  Is this a completely novel and unknown standard? (hint, you might be surprised to learn the answer to that question is ‘no’; you’ll see why further below).  Healthy debate was had regarding what this entailed; should practitioners treat it like a fishing expedition, scrutinising academic publications?  Or like dating, doing a deep dive on social media; Facebook, Instagram, LinkedIn?  Or maybe just reviewing CVs and record of public appearances should suffice?  There’s no escaping the likelihood that parties will derive more comfort from a deeper dive, particularly when the quantum is significant.  Kate helpfully set out some practical tips when embarking on these enquiries:

1. Maintain a register of arbitrators and experts appointed in your team/at your firm.
2. Keep a detailed file note of everything you find.
3. Assume the other side will apply the same or higher level of scrutiny.
4. Check published court and tribunal decisions (if the arbitrator is a judge or former judge or an expert, these decisions could reveal ties to individual legal teams or parties).
5. Individually search the other side’s legal team and counsel (of course, simply knowing someone and/or having worked with them isn’t enough, but this could lead you down a path towards something more substantial).
6. Ask colleagues.

On another view, spending hours trawling through in the hopes of finding a smoking gun may not be necessary where the dispute is of low value. There is also the added complexity of material being pay-walled, which is arguably an enquiry outside of the realm of reasonableness. Still, it is clear that the level of enquiry is case-dependent. The panel and audience discussed that, arguably, reasonableness will be informed by proportionality.

To challenge or not to challenge

Should you challenge if you’ve found something that might be justifiable grounds as to a lack of impartiality or independence? Ben noted that if parties were unsure of running a challenge, that it would be a bad idea to do so. However, this was not representative of usual practice, where some challenges are made as a dilatory tactic. Institutions are well-equipped in dealing with unmeritorious challenges.

If you become aware of circumstances giving rise to a challenge, it is important to remember the time limits to bring a challenge. Kate gave examples of timing requirements in common institutional rules:

• Article 22.1 2021 ACICA Arbitration Rules, Article 22.1 – 15 days;
• 2021 ICC Rules of Arbitration, Article 14.2 – 30 days; and
• 2016 SIAC Rules, Article 15.1 – 14 days.

Interestingly, Ben noted that Article 15.1 of the 2016 SIAC Rules already incorporated the concept of constructive knowledge, as seen in the 2024 updates to the IBA Guideline (emphasis added):

“15.1 A party that intends to challenge an arbitrator shall file a notice of challenge with the Registrar in accordance with the requirements of Rule 15.2 within 14 days after receipt of the notice of appointment of the arbitrator who is being challenged or within 14 days after the circumstances specified in Rule 14.1 or Rule 14.2 became known or should have reasonably been known to that party.”

As to the point in time when justifiable grounds should have been reasonably known, this is a potential issue. It is dependent on the extent of the review i.e. if reasonableness is gauged simply by CV searches then the timing starts then. The panel noted that further clarity was welcome on this point.

ACICA Rules Consultation

The 2021 ACICA Arbitration Rules specifically incorporate the IBA Guidelines, and the reasonable enquiries obligation will be considered by tribunals for arbitrations commenced now (Article 12.4). ACICA plans on commencing a public consultation process within the next year, which will, amongst other things, welcome comments on potential improvements to its rules to make them fit better with the IBA Guidelines.

Challenged by a Sticky Wicket?

Hosted by Australian Disputes Centre at DLA Piper

Rapporteur: Yashas Malik (ADC Associate)

Speakers:

• Deborah Lockhart | CEO, Australian Disputes Centre
• Gitanjali Bajaj | Partner, DLA Piper
  Jo Delaney | Partner, HFW
• Jim Varghese AM | Chancellor, Torrens University
• Wen Ts’ai Lim | Partner, Ashurst

Event Report/ Blog Post

The ‘Challenged by a Sticky Wicket?’ panel discussion during Australian Arbitration Week 2024 in Brisbane brought together industry specialists to examine the evolving relationship between Australia and India. With a rapidly growing Indian diaspora in Australia, bilateral trade has expanded tremendously, fostering deeper economic ties and collaborative ventures.

The session highlighted key developments in areas such as education, infrastructure, and legal services, reflecting on how these industries are being shaped by the Australia-India Economic Cooperation and Trade Agreement (AI-ECTA) and other recent strategic partnerships. The panellists provided insight into the challenges and opportunities that arise in the cross-border collaboration between these two nations, with a focus on the following key sectors:

Australia-India Economic Relations

The panel discussion began with a review of the AI-ECTA, highlighting its pivotal role in boosting trade between the two nations. Key sectors like mining, education, health, and infrastructure were discussed, with a strong emphasis on renewable energy. The panel noted Adani’s ambitious renewable energy plans in Queensland and the significant job creation that enhanced trade relations promise to deliver.

Strategic cooperation through AI-ECTA and initiatives like the QUAD allow Australia to diversify supply chains, reducing reliance on China. Broader collaboration in education and technology was also emphasized, especially given India’s thriving tech hub in Bengaluru. With major investments from companies like Boeing, the discussion shifted towards climate change, underscoring shared goals for sustainable growth.

As Australia’s Indian diaspora nears one million, the panel stressed the importance of incorporating their perspectives, noting that human connection is intrinsic to successful agreements.

Challenges for Foreign Investment

The discussion then turned to the challenges Australian companies encounter when investing in Indian infrastructure projects, particularly around regulatory hurdles, tendering delays, and long project timelines. Panellists noted that India’s growth prospects remain strong as Goldman Sachs predicts India and China will be among the top three economies for the next 20-30 years. However, investment in India has seen a decline due to persistent red tape. A key issue highlighted was the enforcement of contracts, with one panellist sharing a personal experience of an arbitral award taking 10 years to enforce, though recent reforms aim to address such delays.

Legal and Arbitration Reforms in India

India’s efforts to make itself an arbitration-friendly jurisdiction were highlighted through various legislative reforms and court rulings, alongside the growing influence of institutions like the Delhi International Arbitration Centre. The panel discussed significant challenges in enforcing arbitration awards but noted that improvements in legal processes are making dispute resolution more efficient. Reforms introduced in 2015 were particularly significant, with major changes like the appointment of arbitrators within 60 days, addressing delays that previously took 4–5 years sometimes. Arbitrators now are only required to focus on the existence of an agreement rather than its validity, streamlining proceedings.

One interesting point was the use of IT databases to track cases from the Supreme Court down to district courts, aimed at tackling the backlog of over 45 million cases. These databases categorize cases based on delays and other factors, with an effort to prioritize them efficiently. Further, time limits for arbitration proceedings have been introduced, with a 12-month limit and the possibility of a six-month extension with court approval.

Although the Arbitration Council of India has not yet been implemented, institutions like MCIA and DIAC are actively promoting reforms and training lawyers and arbitrators to improve arbitration practice in India. Government is also trying to implement efficient ways to tackle these issues.

Education and Immigration

The panel explored the immense potential for educational partnerships between Australia and India, focusing on India’s large youth population and the opportunities for collaboration. Visa regulations, recognition of qualifications, and the growing demand for dispute resolution expertise in India were discussed as key areas for growth.

Jim Varghese AM noted that while the Australia-India relationship is facing challenges, particularly with reforms impacting international student intakes, there is room for optimism through strategic planning and agreements like the QUAD and AI-ECTA. He emphasized the need for patience and a win-win approach, suggesting that Australia’s collaboration with India could strengthen with the right strategies.

Gitanjali Bajaj shared her personal experience as an international student in Australia, acknowledging the difficulties she faced but stressing the importance of expanding collaboration and supporting the Indian diaspora. Both panellists agreed that Indian students contribute significantly to Australia’s economy and workforce, not only in specialized fields but also in everyday jobs. The growing Indian diaspora adds a human element to these evolving educational and economic partnerships.

Barriers to Legal Services Liberalization

The panel explored the barriers to liberalising legal services in India, with a particular focus on the protectionist stance of the Indian Bar Council. Wen-Ts’ai Lim discussed the challenges within Australia’s fragmented legal system, where achieving uniform laws across states remains difficult. While New South Wales has allowed more experienced foreign lawyers to practice, the Priestley 11 requirements continue to pose barriers.

Jo Delaney emphasised India’s deeply rooted conservatism in the legal profession, with hesitance to open its market to foreign lawyers. Limited steps toward liberalisation, such as fly-in-fly-out provisions on reciprocal arrangements, have been implemented but remain restrictive. Both panellists acknowledged that the conservatism on both sides hinders cross-border legal practice. However, India’s 2023 liberalisation of rules for foreign lawyers indicates that the market may slowly be opening to more international legal collaboration.

Making Australia the Preferred Seat of Arbitration

During the Q&A session, the panel focused on why Singapore is often preferred as the seat for Indian arbitration matters. Gitanjali Bajaj explained that Singapore marketed itself well as an arbitration hub, with government investments playing a key role. Although Australia has pro-arbitration courts and follows the same UN Model Law, the challenge lies in the lack of awareness and government funding. Deborah Lockhart noted that the Australian Disputes Centre has taken steps to promote mediation as well, as India’s dispute resolution landscape keeps evolving.

Wen-Ts’ai Lim pointed out geographical proximity as a key factor for Singapore’s appeal but also highlighted the growing presence of Indian companies in Australia, which could help bolster Australia as an arbitration hub.

The panel also explored various aspects of the Australia-India relationship and dispute resolution mechanisms. Jim Varghese emphasized the need for the Indian diaspora to bring positive aspects of their culture to Australia while avoiding importing divisive issues like those surrounding the Khalistan movement. He stressed the diversity within India and the importance of showcasing this unity in Australia, especially as more people of Indian origin step into leadership roles.

Conclusion

In conclusion, the discussion underscored the immense potential of the Australia-India partnership, particularly in sectors like renewable energy, education, and infrastructure. While challenges remain, such as legal and regulatory barriers, there are clear signs of progress in deepening economic ties and enhancing dispute resolution mechanisms. The panel emphasized the need for Australia to promote itself as an arbitration hub, alongside strengthening ties with the Indian diaspora. By continuing to address these obstacles and fostering collaboration through agreements like the AI-ECTA, both nations can unlock greater opportunities for trade, investment, and innovation in the years to come.

Arbitration Across Generations: Exploring Mentorship, Technology, and Inclusion

Hosted by Secretariat at the Sofitel Brisbane

Rapporteur: Jillian Rathbone (Secretariat)

Speakers:

• Joel Glover | Director, Secretariat Brisbane
• John Lancaster | Managing Director, Secretariat Singapore
• Mark Dempsey SC | Arbitrator Mediator
• Lucy Martinez | Martinez Arbitration
• Emily O’Brien | Level 27 Chambers

Hosted by Joel Glover of Secretariat Brisbane, the “Arbitration Across Generations” panel brought together experts from various backgrounds to explore how generational diversity is shaping arbitration practices. Panellists included John Lancaster from Secretariat Singapore, Lucy Martinez of Martinez Arbitration, Mark Dempsey SC, and Emily O’Brien from Level 27 Chambers. Together, they delved into mentorship, technology, generational dynamics, and the value of inclusion in the field of arbitration.

Here’s a look at the main takeaways from the event.

Generational Differences in Arbitration Approaches: Emails, avoiding phone calls, emojis, and everything in between

The event opened with a look at how generational preferences influence arbitration practices, particularly around technology, collaboration and communication. Lucy Martinez highlighted the rapid adoption of digital tools during the pandemic, and with it, the expectation to be responsive 24/7 that developed alongside. Zoom and Teams have shifted from a pandemic necessity to an arbitration staple, thanks to the digital familiarity of younger professionals.

Emily O’Brien spoke to the opportunities created by these generational differences, noting that each generation brings unique strengths to the table. The primary difference of preferred communication styles between Boomers and Gen X (telephone calls, cryptic texts “THX” or random emojis “🦁🦉 👍”), Millennials (emails) and Gen Z (definitely, absolutely, not phone calls) was discussed. Emily notes that it is crucial to have at least one “geriatric millennial” in each team, to bridge the gap between team members who understand technology and those who don’t. The conversation revealed that all approaches have their merits, and arbitration teams benefit from a blend of concise communication and detailed written correspondence.

Mark Dempsey reminded everyone that the beauty of a multi-generational team lies in this diversity of approach. When each generation plays to its strengths – whether it’s technology, strategy, or experience – you get an all-around better team. John Lancaster added that the trick is to combine these strengths: pairing younger professionals’ knack for digital tools with the tried-and-true wisdom that senior practitioners bring to the table.

Mentorship in Modern Arbitration: Combining tradition with innovation

Mentorship is foundational in arbitration, and while there are many more formal mentoring programs within companies and firms now, Lucy observed that the best mentorship relationships often occur more organically. Emily discussed the practical requirements, highlighting the need for both generosity of time and of spirit for both participants, as well as providing honest feedback. Modern mentorship increasingly involves technology with the advent of videoconferencing, allowing mentors and mentees to connect across borders, though John advised that face-to-face meetings still provide a unique dynamic that video calls can’t fully replicate. Mark added that mentorship is just as much about learning as it is teaching. Today, many senior arbitrators are learning from their younger counterparts, too—especially when it comes to tech.

Technology’s Role in Arbitration: From paper bundles to PowerPoints

Technology has changed the game in arbitration, both in case preparation and in the hearing room. John discussed how data analytics streamline evidence-gathering, enabling teams to manage data efficiently. But he warned against data overload, which can give cross-examiners ample material to dig for inconsistencies. Mark weighed in on virtual hearings, noting that while many appreciate their convenience, in-person hearings remain essential in cases where non-verbal cues and body language play a significant role in cross-examination. Lucy noted the shift from paper-based to electronic hearings, citing benefits for both practicality and the environment, though she recommended checking each arbitrator’s preferences, and more importantly, ensuring no one steps on crucial cables within the hearing room!

Client Perceptions and the value of diverse expertise

Client expectations are evolving, though younger experts may still encounter credibility challenges due to their age. John suggested that younger professionals could build credibility by focusing on niche areas and gaining hands-on experience. Mark noted that sectors like construction are becoming more receptive to younger experts, who bring fresh perspectives (and fewer grey hairs.) Emily added experienced clients can make for more collaborative case strategies —just watch out for any emoji misunderstandings in the emails.

Diversity and Inclusion in Arbitration: Progress and room for growth

A push for diversity is slowly reshaping arbitration panels and influencing inclusion initiatives. Both Mark and Lucy acknowledged the strides made in gender representation but noted that ethnic and regional diversity still need improvement, especially appointments for arbitrators from Asia, Africa. Emily echoed the sentiment, saying diversity brings fresh perspectives that enhance decisions in arbitration. The panel agreed that mentorship programs are key to fostering inclusion and opening doors for underrepresented voices in arbitration.

Challenges and the Future of Arbitration

The panel closed with a look to the future of arbitration. Mark emphasised that while Big Data and AI can be powerful, we need to avoid drowning in information overload. “It’s more important than ever,” he said, “to step back, think deeply, and focus on the fundamental issues.” As Lucy noted at the beginning of the discussion “AI won’t take your job, but someone using AI might.” John and Emily addressed the role of predictive analytics and AI, with John cautioning that while using technology streamlines case preparation, over-reliance on it may limit younger experts’ skill development. For now, he remains cautious about AI’s potential in predictive analytics, finding it less suited for the nuanced, variable nature of arbitration cases. “It’s going to be a push-and-pull scenario for a while,” he concluded, as technology advances, but human judgment remains as the necessary handbrake.

Practical Advice for Newcomers

In closing, the panel offered practical advice for those stepping into the field. Mark highlighted the importance of observing and learning from experienced colleagues, as well as following the expert’s code to maintain independence and honesty. He encouraged new experts to stay courteous but firm, remember the importance of communication, and to develop the craft of clear, unbiased explanations—especially when under cross-examination. Lucy emphasised the need for clarity, especially when addressing international audiences who may face language, common law or cultural differences.

Emily, newer to the field herself, gave relatable advice: “Prepare, prepare, and then prepare some more.” Over-preparation, she said, builds confidence, allowing new practitioners to approach cases with a level of expertise that makes them feel ready to handle surprises. For John, preparation is also a means of self-preservation. “Every case” he joked, “could be the one that ends my career,” but so far, staying thorough has helped him avoid that fate.

Conclusion

The “Arbitration Across Generations” panel emphasised that while arbitration is evolving, the fundamentals remain: collaboration, mentorship, technological advances and a dash of humour (and maybe an emoji or two). And if this conversation was any indicator, the future of arbitration is in good hands—old, young, and everyone in between.

ACICA & Ciarb Australia International Arbitration Conference

The Ritz-Carlton, Perth

Speaking of Balance: Wellbeing in International Arbitration

Hosted by ACICA

Speakers:

• Amanda Lee, International Arbitrator, Consultant at Costigan King and Founder of ARBalance
• Desi Vlahos, Commissioner on the IBA Professional Wellbeing Commission & Senior Lecturer at the Australian College of Applied Professions
• Professor Samuel Harvey, Executive Director and Chief Scientist at the Black Dog Institute.
• Moderator: Deborah Tomkinson, Secretary General at ACICA.

This exciting panel highlighted some of the many difficulties faced by arbitrators and practitioners in what has become such an incredibly competitive and challenging field. The discussion commenced with a discussion around the use of the term ‘wellbeing’ and its relationship with the workplace.

It became apparent very early in the discussion that wellbeing is not just a one-dimensional term but one with wider and more holistic implications. This sentiment was recognised by all members of the panel and mentioned throughout. Amanda echoed the thought by saying towards the end of the discussion that while corporate wellbeing initiatives are helpful in starting a conversation, real change needs to occur through addressing things as simple as poor communication, bullying, passive aggressive behaviour, and a lack of boundaries within teams.

Professor Sam began by discussing three things workplaces need to consider when looking at improving wellbeing. Desi seconded this later in the discussion, stressing the necessity of addressing risk factors, seeking to promote positive outcomes, and supporting those with mental health issues.  Companies, according to Sam, need to protect the mental health of workers through preventative measures. This can include identifying and reducing risk factors within the workplace. Workplaces should then look at implementing measures to promote wellbeing. Sam explained that there has been a shift from viewing mental health as simply as an absence of illness towards including positive wellbeing. Desi discussed how workplaces can promote wellbeing through allowing for flexible work, and through recognising the need for reasonable boundaries between work and personal life. Finally, workplaces should support and respond to people with mental illness by providing resources and by allowing for a graded return to work.

Desi cited research from PWC which “found that for every one dollar spent in introducing an effective action to create a mentally healthy workplace, companies can expect a $2.30 gain.”

The conversation moved to a discussion of the recent IBA study into workplace wellbeing. Desi told us that lawyer wellbeing is well below average and that 41% of survey participants said they were unable to discuss mental health with their employer without negative consequences. She raised the point that while many organisations realise the importance of aiming for wellbeing, there’s a disparity between organisations which have say they care about mental health and those that have concrete initiatives in place. Both Desi and Amanda raised the important fact that challenges around workplace wellbeing have a disproportionate effect on women, and on linguistically and culturally diverse people.

Sam noted that managing sleep, as much as is possible and practicable around travel, and maintaining social connections is crucial for individual wellbeing. He mentioned the power of social connections in wellbeing and noted the toll that international arbitration can take on the social front. Maintaining social relationships is, Sam said, the “closest thing to a secret around wellbeing that we’ve discovered so far.”

All speakers agreed about the futility of having corporate cupcakes and wellness BBQs without further, concrete action. Sam noted that this should include a top-down approach where companies take a real interest in the wellbeing of their workers. Desi and Sam agreed that companies need to monitor any measures they put in place to find out what works and should take care to really understand the workplace culture before writing policies. Amanda pointed out ways companies could help by identifying key stressors including public speaking and networking and then providing development. Sam spoke about how important it is for people to be aware that they can seek help and that there are solutions. Deb noted that the overall message should be not to be afraid to seek help if needed.

Sam and Desi noted a variety of resources including webinars and toolkits, some of which are posted below. Desi pointed out that different Bar Associations and Law Societies often host webinars and that it could be helpful to find a mentor through these associations. She stressed again the importance community when it comes to maintaining wellbeing and not facing mental health issues alone.

The fruitful discussion was brought to a close with a mention of some of the practical wellbeing initiatives at Arbitration Week, including a run and walk on Thursday 12 October. Groups are meeting at 6:30 am at the Bell Tower, Elizabeth Quay and you can register here.

Key Resources:

Workplace wellbeing information and resources – Black Dog Institute | Better Mental Health

 Rapporteur: Dominic Casanova

Immunity and justiciability in international arbitration: the limits of inquiry into State conduct

Hosted by Twenty Essex

Speakers:

• Professor Philippa Webb, Twenty Essex (Moderator)

• Andrew Fulton KC, Twenty Essex

• Mark Tushingham, Twenty Essex

The interrelated doctrines of foreign act of State and foreign State immunity were, respectively, considered in two recent decisions of the highest courts in the UK and Australia: “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela [2021] UKSC 57 (“Venezuela Gold”) and the Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11 (“Kingdom of Spain”).

In this webinar, Professor Philippa Webb, Andrew Fulton KC, and Mark Tushingham of Twenty Essex reflected on the outcomes of these cases and explored the application of the foreign act of State and foreign State immunity doctrines in the context of international arbitration.

Mr Fulton KC opened by impressing upon the audience that the foreign act of State doctrine has been regarded as “one of the most difficult and most perplexing topics which, in the field of foreign affairs, may face the municipal judge in England” (Dr F A Mann, Foreign Affairs in English Courts (1986), p. 164). That would soon become apparent, as Mr Fulton KC delved into a myriad of issues raised in Venezuela Gold concerning the limits and exceptions to the common law rule that English courts will not inquire into the validity of an act of a foreign State that takes place or takes effect within the territory of that foreign State.

In the spirit of AAW, Mr Tushingham then turned to the question of whether the foreign act of State doctrine applies in international arbitration. Three key issues were identified in the context of international commercial arbitration. First, is an arbitral tribunal bound to apply the foreign act of State doctrine? Secondly, are executive acts the subject of the foreign act of State doctrine arbitrable? Thirdly, are parties who submit their disputes to arbitration to be treated as having waived the foreign act of State doctrine? A central piece of the puzzle is how the foreign act of State doctrine should be characterised. Is it a conflicts of law rule of the law of the seat, a substantive rule of the governing law, or some other kind of rule? The UK Supreme Court characterised the rule as “an exclusionary rule, limiting the power of courts to decide certain issues as to the legality or validity of the conduct of foreign states within their proper jurisdiction” (Venezuela Gold at [135]). But without further clarification, the verdict remains unclear.

Also unclear is the approach to waiver and the approach to the trinity of recognition, enforcement, and execution in the wake of Kingdom of Spain. Professor Webb discussed, from a comparative law perspective, the divergent and nuanced features of the ongoing Kingdom of Spain renewable energy litigation across Australia, the UK, and the US. The High Court of Australia ruled in Kingdom of Spain that the Kingdom of Spain had waived its foreign State immunity under Article 54(1) of the ICSID Convention. This required an express waiver, but such express waiver could be, and was, established through implication or inference, a curious principle that aligns with the US approach, albeit without reference to the features of US constitutional law on which the US approach is based. The immunity recognised with respect to recognition and enforcement in Kingdom of Spain leaves unanswered questions as to whether the same immunity would be afforded under similar but differently worded legal instruments, or in jurisdictions where the Australian or common law notions of ‘recognition’ and ‘enforcement’ may not have direct equivalents.

There is certainly a lot of food for thought. If you’re hungry for more, please do help yourself to the smorgasbord of insights (the full webinar) available at https://www.twentyessex.com/australian-arbitration-week-2023/.

Rapporteur: Edward Wu

Critical Errors and Strategic Missteps to Avoid in International Arbitrations Hosts: Jones Day and Quayside Chambers

Hosted by Jones Day & Quayside Chambers

Speakers:

• Matthew Gearing KC (Barrister and Arbitrator Quayside Chambers Fountain Court Chambers (UK))
• Katie Mead (Partner Global Disputes Jones Day Perth)
• Leon Firios (Barrister and Arbitrator Quayside Chambers)
• Simon Bellas (Partner Global Disputes Jones Day Melbourne) (Chair)
• Dan Chaney (Associate Global Disputes Jones Day Perth)

In a very helpful Hitchhikers’ Guide to the Galaxy of Arbitration, the panellists at this event took the audience through the lifecycle of an arbitration, examining the problems that may arise at each stage and providing advice on how to manage these challenges.

Starting with the drafting of the arbitration clause, Matthew Gearing reflected upon the historical focus on the choice of the seat, as an effort to anchor the arbitration to supportive curial jurisdictions at the seat. Matthew suggested that this emphasis has shifted as we see less curial interference with arbitration, to an at least equal focus on the issue of the law governing the arbitration agreement and the wide scope of issues that can come up in the context of the debate about the law governing the arbitration clause.

Katie Mead continued, highlighting that it is important to ensure that arbitration clauses are tailored and fit for purpose. Katie suggests considering issues such as where the parties are based, for enforcement reasons, and the commercial relationship with and profile of the counterparty, particularly whether they are likely to be litigious. These early drafting choices often set the foundation of the outcome of the arbitration.

Turning then to the selection of the tribunal, Leon Firios canvassed the attributes of a good arbitrator, such as availability, experience, subject matter expertise and collegiality, drawing out that at the core of these attributes is the importance of ensuring that there is a fair process and a quality decision, critical for the legitimacy of the arbitration. Leon and Dan Chaney both encouraged the audience of be innovative, with Dan highlighting the distinction between “a good arbitrator and a good arbitrator for your client”.

Next the panellists considered missed opportunities when setting procedure, looking at two critical questions: the use of pleadings or memorials, and the efficient use of experts. Katie examined the differences between a memorial style approach and the exchange of pleadings. She accentuated that the choice of approach requires consideration of costs and time, and what will best suit your clients case. For example, if your client will be reliant on a document production process, a pleadings style approach may be recommended. On the pleadings vs memorials debate, Matthew suggested that we may be able to be more creative and adapt memorials to include only what is appropriate, such as some lay evidence but not expert evidence, and walk along the line of the traditional dichotomy.

Leon then spoke about the management of experts, starting with the importance of setting the ground rules of the interactions between experts, with reference to CIArb’s expert’s protocol and the ability for international arbitration to take a much more liberal approach as compared to courts. Leon also focussed on the importance of the timing of the tribunal’s intervention and the dangers that can arise when the tribunal’s direction to the experts comes before the issues are crystallised.

Simon Bellas, chairing this panel, helpfully summarised that the crux of both issues is the importance of knowing your case and what will best serve your clients interests before the procedure is discussed and set at the case management conference.

Finally, arriving at the hearing stage, Matthew encouraged instructors and counsel to be as one team, working together and challenging conceptions about who is best for the task at hand. Matthew also spoke about how in the era of Zoom and Teams, we should encourage having conferences and hearings online, instead of just one single evidentiary hearing, highlighting the benefits of this and how it keeps arbitrators engaged. Dan also touched upon the importance of client management at the hearing and setting client expectations and involving them in communications about strategic decisions and case theory so that they are reassured their interests are being protected.

This panel was highly instructive and comprehensive, running through the common missteps and pitfalls that may arise during an arbitration. The experience and expertise of the panel provided a thorough guide for avoiding critical errors.

Rapporteur: Jessie Xiao

Maritime Arbitration Update

Hosted by AMTAC

Speakers:

• Gregory Nell SC (AMTAC Chair and Senior Counsel, New Chambers, Sydney) (Chair)
• The Hon James Allsop AC (Arbitrator, Sydney Arbitration Chambers & former Chief Justice of the Federal Court of Australia)
• Ashwin Nair (Partner HFW, Perth)
• Kendall Messer (Senior Associate, Hall & Wilcox, Perth)

While maritime law had been raised obliquely during Session Two of Monday’s ACICA & CIArb International Arbitration Conference, entitled “Offshore Projects (and Onshore Problems)”, and the DLA Piper event immediately prior, entitled “Navigating Rough Seas: Insights into Arbitration Trends and Issues Relating to Offshore Petroleum, Shipping, Decommissioning and Blue Bonds in Australia”, the Maritime Arbitration Update provided the stage for a nuanced discussion of this unique and important area of the law.

Gregory Nell SC began by providing some background information into the important role of the Australian Maritime and Transport Arbitration Commission (AMTAC) in facilitating the arbitration of maritime disputes in Australia. He then introduced the three speakers, each of whom delivered individual presentations on a wide array of issues at the intersection of maritime law and arbitration.

The Hon James Allsop AC spoke first by delivering a paper that expanded upon what he had presented last week in the 2023 Dethridge Memorial Address. His presentation traced the importance of the unique status of maritime law amidst national and international legal contexts, and provided a glimpse into the significance of arbitration in facilitating the proper development of maritime law. The presentation began by interrogating the nature of maritime law, particularly its international character, and the fact that, unlike national legal systems, it turns not on the social and cultural context of any one place, but rather it concerns an activity. The illustration given was that of a forest of trees. On the one hand, a comparative analysis of different legal systems naturally reveals certain similarities, just as individual trees interweave as they grow and produce a complex canopy of overlap. On the other hand, maritime law provides its own internally consistent set of principles, from which nations draw to develop their own national maritime regimes, like trees springing up from one shared root system. James proposed that the recognition of maritime law’s unique, international character is fundamental to ensuring the proper and coherent development of maritime law, namely by avoiding the tendency of individual nations overly to taxonomise and abstract principles of maritime law so as to fit within their national legislative regimes. The proposed ideal was to the effect that clearly and simply expressed principles are more conducive of certainty and predictability in the outcome of disputes, as they allow those with experience in maritime law to refer these principles to their personal professional experience, thereby arriving at the fair and correct decision. James concluded by noting that this is where arbitration has the capacity to make a great contribution, by allowing commercial parties to select arbitrators with expertise and experience who are capable of resolving their disputes with an intuition, precision and efficiency that is impossible in litigation.

Ashwin Nair was the next to speak, and discussed the adoption (or lack thereof) of electronic trade documents in maritime commerce. The theme for his presentation was “Crossing the River on Shifting Stones?”, a metaphor for the transition from analogue to digital that is still to be fully effected in maritime law, and that contains hidden challenges (“stones”) that will need to be overcome. Ashwin situated his discussion in the context of the widespread digitisation of a variety of legal activities, which it should be noted has itself become somewhat of a theme for Australian Arbitration Week and its orientation towards future trends. The presentation considered then in granular detail the multiple important functions of bills of lading in maritime law, and the difficulties that physical bills of lading continue to bring with them. Most striking of all, perhaps, is the cost that physical bills of lading entail, with it suggested that problems that they cause contribute 10-30% of total trade document costs, equivalent to several billions of US dollars. Ashwin then presented the benefits that electronic bills have the potential to bring about, including increased security and speed and reduced costs, but noted the ongoing challenges with fitting e-bills into the complex legislative regime that governs maritime law in Australia.

Kendall Messer concluded the event with a discussion of important foundational principles in arbitration law, which were presented with a maritime “theme” in that the Australian and international authorities referred to all involved maritime commerce. The topics discussed, namely the doctrine of separability with respect to arbitration agreements, and the principle in Fiona Trust that parties are presumed to have intended that their disputes be resolved in the same forum (unless a contrary intention should have been displayed), were both analysed from the perspective of whether they constrain or widen the scope for disputes to be settled via arbitration. The cases discussed revealed a complex tapestry of examples that demonstrate the primacy of party intention in resolving questions concerning the construction of arbitration agreements. Kendall’s presentation provided a fitting conclusion to the event, insofar as it illustrated the important place that maritime law has in contributing also to other areas of commercial law, including arbitration.

Rapporteur: Peter Taurian

Disrupting Disputes: The benefits of arbitration in Technology

Hosted by Corrs Chambers Westgarth

Speakers:

• Elizabeth ‘Lizzie’ Chan (Tanner de Witt)

• Eric Ng (HKIAC)

• Dmitri Evseev (Independent Arbitrator)

• Lucy Martinez (Independent Arbitrator)

The panel covered fascinating and topical aspects of the intersection between arbitration and technology.

Eric first discussed the suitability of arbitration as a dispute resolution mechanism for technology disputes, being a flexible, confidential process. Many arbitral seats now also allow for the arbitration of IP disputes, which often arise in technology transfer agreements, meaning arbitration can provide a complete dispute resolution offering.

Lucy then covered key trends in the intersection between technology and arbitration. First, the number of investor-state disputes arising in the technology sector is increasing, notable high-profile examples being the Huawei v Sweden and Uber v Colombia cases. Second, the number of technology disputes generally is increasing, in line with the increasing use of technology. Special dispute resolution rules have been drafted to deal with the unique exigencies of such disputes, including by the UK government, and by JAMS. Third, there are increasing challenges from a consumer protection perspective as to how and when consumers agree to arbitration agreements in contracts.

Lizzie then spoke on the metaverse, and noted that in the near term there will be limited disputes directly arising out of metaverse. However, in the medium term, with improvements in augmented and virtual reality, the metaverse could be used to host hearings remotely. In the long term, institutional rules could be adapted to suit metaverse disputes, such as provision for anonymity.

Technology and the Arbitral Process

Eric then discussed, from an institutional perspective, the impact of IT on procedure. He noted that COVID-19 changed the paradigm for critical aspects of the arbitral process, such as hearings and the delivery of documents, and this has fostered innovation and changed process norms. Technology assists parties to reach outcomes, in a faster and cheaper manner, an example being the HKIAC’s Case Connect, an online document platform. However, institutions must balance this efficiency with the integrity and confidentiality of the process.

Dmitri discussed the potential benefits, risks, and limitations of generative AI for the arbitral process. In terms of the benefits, AI tools can help automate processes such as reviewing documents, translation, and transcription. However, key limitations of such tools include their inability to give accurate citations and reasoning or process behind steps taken, alongside the lack of confidentiality protections. Additionally, misuse of such tools could cause significant harm, one example being the creation of fake documents through ‘deepfake’ technology.

Lucy then recounted her observations on increased technological dependence in the arbitral process. First, arbitrators must be comfortable with virtual hearings, while giving adequate weight to procedural fairness. Second, arbitrators must become familiar with electronic case file management systems. Finally, she commented that the shift to a virtual format can create a lonely experience due to the lack of organic human interactions.

Silicon Valley Arbitration & Mediation Centre Draft Guidelines on the Use of AI in International Arbitration

Lizzie then spoke on the potential use of AI by lawyers, drawing on her experience as a member of the drafting committee responsible for the Silicon Valley Arbitration & Mediation Centre Draft Guidelines on the Use of AI in International Arbitration. These guidelines were prepared against a backdrop of rapid adoption of AI by lawyers, counsel, and experts, raising disciplinary and ethical questions. While there have been ad hoc approaches to regulating the use of AI, there had not previously been a unified approach to the issue. The guidelines were prepared to address this lacuna. The drafting committee defined AI broadly, to allow for the development of new forms, and included two approaches to disclosure of the use of AI, noting that it remains a continuing area of controversy.

Dmitri, who also sat on the committee, provided further commentary on the guideline concerning the non-delegation of decision-making responsibilities, noting that it is difficult to define the acceptable outer limits of the use of generative AI. However, fundamentally, tribunals should not ask AI tools to provide evaluations. Additionally, tribunals should be careful when using AI to generate a factual background to supplement expert reports, since this could constitute the use of information outside the record. Ultimately, the guidelines aim to raise questions about acceptable behaviour, rather than prescribe certain conduct.

Technology and Investor-State Dispute Settlement

Finally, Lucy discussed the protections offered to technology companies offered under investment treaties, noting that the extent of protection is necessarily determined by the specific definitions and features of the individual treaty. There are also outstanding questions regarding whether data can be protected as an ‘investment’, and the quantification of tech assets can be difficult where the economic value of an asset has not yet crystalised. These issues remain ripe for exploration in existing and future cases of investor-state disputes.

Rapporteur: Caroline Xu

Climate Issues at the Intersection of Law and Politics

Hosted by Allen & Overy and Twenty Essex

Speakers:

• Karina Travaglione – Allen & Overy (moderator)
• Jonathon Redwood SC – Twenty Essex
• Suzanne Spears – Paxus LLP
• Daniel Kalderimis – Twenty Essex
• David Jenaway – Allen & Overy

Daniel Kalderimis perfectly summed up the key issues arising out of this panel session when he called climate change a ‘grey rhino’ of legal disruption, that is, a phenomenon that you know is there and will have an impact but you’re not entirely sure how it will play out yet. The panel considered what this disruption might, and indeed is already starting to, look like.

In the public space, Suzanne Spears explained that individuals and groups are making legal claims against States and companies armed with the IPCC Report and Paris Agreement. This raises several issues. First, and broadly, there is a debate on whether it’s the court’s role to order States and corporations to act on climate change, or whether this should be left to the State legislatures.

If indeed courts are competent, the next question is how to identify a legally actionable duty and right, a task that can be difficult when there aren’t specifically enforceable rights relating to climate change in constitutions or human rights documents.  Courts at every level have increasingly been called to draw on existing human rights in the context of climate change, and Suzanne Spears points to the US state case of Held & Ors v Montana where the Claimants were able to prove standing and causation and the Court was able to identify a method of redress in relation to a claim against the State for harms caused by its energy policy.

Daniel Kalderimis also gave the example of the New Zealand case of Smith v Fonterra & Ors where the plaintiff made claims in public nuisance, negligence and a new proposed cause of action in tort relating to climate change. While all three claims were struck out in the Court of Appeal, a final decision from the Supreme Court awaits and this will be a significant test case. Other claims have arisen in relation to climate change alleging misleading and deceptive conduct, and Jonathon Redwood SC also points to the likely increase in climate related class actions.

As policy and legislation on climate change continues to redefine state obligations and the scope of company and investor’s property rights this will also have an impact on investment arbitration.  Suzanne Spears considers that although the tribunals in Rockhopper v Italy and Eco Oro v Colombia considered the issue of a host state’s climate obligations to be political, there will be a rise in state defences for breach of treaty provisions on the basis of obligations to protect their populations from climate change.

Similarly in a commercial space, climate change creates new challenges and opportunities for traditional contracts. David Jenaway explained how new technology and novel players in the game, as well as a rapidly changing regulatory environment will push lawyers to consider risk identification and allocation in a different way.

Arbitration is very well suited to bilateral contractual disputes in the private commercial space. Jonathon Redwood SC pointed to the selling points of flexibility, enforceability and the ability to select arbitrators with the relevant technical knowledge for your particular dispute. He did however consider that given the overlay of class actions and public law considerations, there would be limitations with confining disputes strictly to the parties in the arbitration. Regulatory frameworks could also pose public policy and arbitrability issues.

Climate change is an issue that both in effect, and in proposed solution, demands the intersection of law and politics and, as the panel demonstrated, this will create both challenges and opportunities alike.

Rapporteur: Alisha Mathias

International Arbitration in the Asia-Pacific: What is Hot and What is Not? Key Trends and Developments in the Region

Hosted by King & Wood Mallesons

Speakers:

• Professor Anselmo Reyes (Arbitrator, SICC Judge)

• Edwina Kwan (King & Wood Mallesons)

• Amanda Lees (King & Wood Mallesons)

• Holly Blackwell (King & Wood Mallesons)

The speakers in this panel provided invaluable insights on arbitration trends in the Asia-Pacific region.

Amanda first noted three developments in Singapore. First, Singaporean courts are more willing to set aside awards when process issues arise, as illustrated by the eight awards set aside between 2020 and 2022. Courts are increasingly concerned about curbing improper behaviour by tribunals, examples including the refusal to hear a witness where no witness statement was previously provided, and an award with incoherent reasoning. Second, the recent decision of Anupam Mittal v Westbridge Ventures II Investment Holdings provides clarification on determining arbitrability, setting out a two-step process: (i) the subject of the dispute must be arbitrable under the law governing the arbitration agreement, and (ii) it must also be arbitrable under the law of the seat. Third, the SIAC has released new draft proposed rules. Key features include a streamlined procedure for disputes under $1mil, a preliminary determination process, and more areas for intervention by the Registrar and President.

Anselmo then spoke on the merits of international commercial courts, noting that each jurisdiction considering the implementation of a commercial court should carefully consider its objectives. For example, the SICC aims to attract cases to Singapore which ordinarily would never be decided there, while the Uzbekistan Commercial Court forms part of the legal framework supporting foreign direct investment. In terms of the benefits of international commercial courts, Anselmo drew from his experience as an SICC judge, noting that the jurisdiction to deal with arbitration-related cases has been successful in drawing cases to Singapore.

Holly spoke on the slow but steady evolution of China’s arbitral practice. Progress is signalled by the 2021 announcement of proposed updates to the arbitration law, and the growing presence of international commercial courts across China, which sit as specialised courts and have jurisdiction to hear arbitration-related cases. The draft arbitration law, which is currently under deliberation, moves Chinese law closer to the Model Law. Key updates include provision for ad hoc arbitration and competence-competence, the power to order interim measures, a unified system to set aside or resist enforcement of domestic and foreign awards, and the legal framework for foreign arbitral institutions to administer cases in China. China has also passed its new Law on Foreign State Immunity, which moves from an absolute immunity model to more restricted immunity for foreign States.

Edwina spoke on the continuing strength of Hong Kong as an arbitral seat, pointing to the special arrangement allowing for enforcement of interim measures against Chinese parties by Chinese courts, and the mutual recognition of arbitral awards between Hong Kong and the People’s Republic of China. Cases such as Song Lihua and C v D also illustrate the pro-arbitration stance of Hong Kong courts. She also commented on the spate of enforcement proceedings for investment awards in Australia, including notably the Kingdom of Spain decision of the High Court of Australia. Reasons for Australia’s popularity as a destination for enforcement, even in the absence of significant assets, include the speed of court determination, the judiciary’s pro-arbitration stance, and the authority or precedential value which an Australian court decision provides.

Amanda then spoke on the relative difficulty of arbitrating in a number of Southeast Asian jurisdictions, and expanded on the difficulties of arbitrating in India, including the lack of supervisory support by Indian courts during the arbitral process, the fewer grounds for challenging enforcement based on public policy, and the Supreme Court decision of N.N. Global which held that unstamped arbitration agreements are void and unenforceable.

Finally, Anselmo discussed the efforts on Japan’s part to promote itself as an arbitral seat, including the proposed amendments to bring Japanese arbitration law in line with the 2006 Model Convention, and the new discretionary power of Japanese district courts to provide for the non-translation of documents, making Japanese courts more accessible to foreign parties. Japan aims to draw on its civil law background as a differentiator to major seats like Singapore and Hong Kong, to attract parties under the civil law tradition. Anselmo also noted the growth of investor-state claims, as a response to the increasingly protectionist stance of States in the wake of COVID-19, and that the existing investment agreement regime could be replaced with a model in line with the Singapore-EU Free Trade Agreement, with a specialised court or tribunal.

Rapporteur: Caroline Xu

Navigating rough seas: Insights into arbitration trends and Issues relating to offshore petroleum, shipping, decommissioning and blue bonds in Australia

Hosted by DLA Piper

Speakers:

• Corey Steel (DLA Piper)
• Michael Robbins (DLA Piper)
• Laura Nagy (DLA Piper)
• Claire Robertson (DLA Piper)
• Pat Saraceni (Clifford Chance)
• Darren Murphy (Baker & O’Brien)

The risk inherent to offshore petroleum projects, meshed with the regulated and multinational character of these projects, demands arbitration above all. The panel provided a wide-ranging discussion of trends in international arbitration, spearheaded by Laura Nagy and Claire Robertson (DLA Piper), Pat Saraceni (Clifford Chance) and Darren Murphy (Baker & O’Brien), and steered by Corey Steel and Michael Robbins of DLA Piper.

The panel began with an insightful deep-dive into decarbonisation with a comparative twist, delving into decarbonisation practices across Australia and the United Kingdom. Pat Saraceni emphasised the significance of decarbonising existing archaic shipping practices, currently comprising 80% of global trade, with reference to international strategies to achieve net-zero emissions by 2050. In response, Darren Murphy illuminated the contemporary trend towards smaller projects within the United Kingdom to lessen reliance upon traditional gas energy sources in favour of projects for biomass and offshore wind, for example.

The scope of discussion subsequently spilled into the sphere of marine and ocean conservation. Claire Robertson led a spirited and informative analysis of the role of blue bonds, as a form of sustainable finance, in driving decarbonisation within ocean-based industries. In particular, Claire contrasted the benefits of this debt instrument in funding various marine-based projects, focusing upon ocean-based energy, marine protected areas and wastewater treatment, against the likely disputes arising from the misuse of proceeds or misrepresentations of the instrument itself.

The panel next touched upon the rising significance of decommissioning within the realm of both offshore and onshore projects. Laura Nagy, Pat Saraceni and Darren Murphy outlined the sheer cost associated with the decommissioning of existing projects, with the Australian offshore market demanding approximately $40 billion USD to decommission Australian assets, the majority of which shall transpire within the next decade. The panel reinforced the significant challenge posed by decommissioning to the broader industry and within Australia, projected to transform into a key global trend. The discussion shifted towards the risk posed by a lack of international efforts to decommission certain projects, with Darren Murphy citing the threat posed by neglected oil pipelines residing on the seabed within the Middle East to highlight the importance of global decommissioning endeavours.

Finally, the speakers assessed the consequent future disputes arising from offshore projects, and the critical role of arbitration in resolving these complex transnational issues. The multifaceted nature of offshore projects creates an environment ripe for disputes to arise between varies parties, with issues spanning supply chains, contractual agreements, delays and force majeure providing grounds for potential arbitral disputes in the near future. In addition, the relative infancy of renewable offshore projects in comparison to established oil and gas projects has resulted in offshore projects posing issues of reliability after several years of use, thereby creating multiple avenues for disputes to occur – this raises the question of whether a ‘handover of knowledge’ is required from existing gas projects to less advanced windfarms. Furthermore, the greater focus upon marine conservation as part of broader decarbonisation raises the likelihood of increased investor-state and investor-investor claims in this space, with actions being commenced under international instruments including the United Nations Convention on the Law of the Sea for environmental damage. Cumulatively, arbitration remains the most preferred mechanism of dispute resolution in this sphere, primarily due to the volume of foreign investors with an active interest in shipping and offshore projects.

Rapporteur: Sami Shamsi

The Next New Variant? Arbitration in the Healthcare and Life Sciences Sector

Hosted Corrs Chambers Westgarth

Speakers:

• Cara North, Special Counsel, Arbitration and Commercial Litigation practice groups, Corrs Chambers Westgarth (moderator)
• The Hon Dr Annabelle Bennett SC
• David Fixler, Partner, Intellectual Property, Corrs Chambers Westgarth
• Dr Benny Lo, Barrister, Des Voeux Chambers
• Margarita (Rita) Kato, Representative of the WIPO Arbitration and Mediation Centre’s Singapore Office

Attendees at Corrs Chambers Westgarth this morning were treated to a fascinating panel discussion on the disputes arising from the healthcare and life sciences sector, and importantly, the place of arbitration in resolving these disputes.

The life sciences sector, including pharmaceuticals, medical devices, biomedical technology and research and development amongst other products and services, is one of the fastest growing sectors of the global economy, particularly after the COVID-19 pandemic.

Moderated by Cara North, the experienced panel of IP experts and arbitration practitioners discussed the types of disputes arising from this growing sector, which is worth over $250bn in Australia.  David Fixler gave examples of some of the many types of disputes that can arise out of the life sciences sector, including pharmaceutical intellectual property disputes (e.g. patents), confidential information cases arising out of research collaborations and disputes about royalties, and advertising and marketing to name a few. 

Why Arbitration?

The panel considered that arbitration was well suited to these types of disputes, and indeed is already being preferred by many parties for the resolution of their life sciences disputes. Rita Kato from the World Intellectual Property Organization (WIPO) explained that 15% of WIPO’s caseload related to life sciences disputes, and 70% of Medicine Patent Pool agreements included WIPO ADR clauses.

The panel attributed this trend to several key reasons.

First, Dr Annabelle Bennett SC suggested that there is value in being able to select arbitrators who have technical expertise in the subject matter, which is not always possible with judges in litigation. Dr Benny Lo emphasised that being able to select arbitrators who already have the appropriate background and know-how to understand the issues and render an award expeditiously has great time and cost benefits. On the issue of timing, Rita Kato explained that WIPO assists as an institution by providing clear timelines for the arbitral process and the opportunity for further expedited processes with sole arbitrators. WIPO also provides for, and encourages, the use of online tools e.g. virtual procedural hearings which can reduce delay.

Dr Bennett also considered that arbitration was well-suited to the very multi-jurisdictional nature of many life sciences disputes e.g. by being able to bring parties from different jurisdictions into a single arbitration. Dr Lo added that multijurisdictional disputes are served well by international arbitration which supports cross-border enforcement both for final awards, and also importantly for interim relief. Dr Lo explained that Hong Kong has legislated for the enforceability of an emergency arbitrator’s orders for interim relief.

The panel also pointed to some of the traditional benefits of arbitration which are particularly attractive for life sciences and patents disputes such confidentiality and flexibility e.g. parties being able to agree on the specific issues for determination.

What are the Issues?

Cara North put it to the panel that historically there has been a view that most intellectual property disputes have been incapable of resolution by arbitration but there are signs that this is changing.

Dr Lo said that Hong Kong has amended its ordinance to clarify that disputes about IP rights, defined broadly, are arbitrable and that an award cannot be set aside simply because it deals with IP rights. This position is less clear in Australia, although the 2011 decision of Larkden Pty Limited in the NSW Supreme Court appears to create some opportunity for a favourable position towards arbitration in the life sciences sector. David Fixler reiterates however that while an arbitral decision can bind the parties to an arbitration, it would not impact the IP public register and therefore the rights of third parties. Dr Bennett SC added that it will also be very important to consider the potential competition law consequences of arbitral decisions between two private parties.

As the life sciences sector grows, and with it the number of disputes, these discussions are increasingly relevant.

Rapporteur: Alisha Mathias

Harnessing Generative AI: Large Language Models as Catalysts for Innovation in Arbitration

Hosted by Ashurst

Speakers:

• Lachlan McCalman (Chief Practitioner, Gradient Institute)
• Natasha Blycha (Partner, Stirling & Rose)
• Luke Carbon (Senior Associate, Ashurst)

If a paragraph of ChatGPT is just “glorified statistics”, then Einstein’s seminal paper on the theory of special relativity is just “glorified brain chemistry”.

This sentiment, expressed by Dr Lachlan McCalman, is reflective of the spirit of critical re-evaluation of what it means to be human that characterised today’s event at Ashurst on generative AI. Whereas there is a certain intuitive affinity for “human” knowledge and “human” judgement, including in the legal profession, the speakers on today’s panel — Dr McCalman and Natasha Blycha, chaired by Luke Carbon — interrogated the basis of this affinity, and suggested that the advent of increasingly complex AI should encourage us seriously to reconsider similar such preconceptions.

Today’s event began with an insightful preliminary discussion on what AI, particularly generative AI, of which Large Language Models are a subset, actually is; and how such AI tools operate, namely by combing through and analysing the vast sea of data on the internet, and then by “generating” text on the basis of the likelihood that one word should follow another in natural human speech. The speakers then confronted some of AI’s well-known problems and limitations, including the “black box” problem of AI inexplicability, the “hallucinations”, such as fake judicial decisions, that sometimes occur, and the unwanted bias that data sets and algorithms may produce. While acknowledging these obstacles, the panel observed that similar such issues have always been features of, for example, decisions by human judges – after all, human judges are under no obligation (and are not able to) describe all the conscious and subconscious factors that led to the decision in question, including various biases that they, as fallible humans, invariably possess.

Natasha Blycha furthered the discussion by providing an overview of the uptake of AI technologies throughout the world, including the difference in approaches between different jurisdictions, and the “democratisation” of AI through such openly available resources as ChatGPT. Notwithstanding signs of resistance, at the level of both “soft” and “hard law”, to the AI takeover, the panel presented a clear and unanimous picture of the future as one in which AI will pervade our day-to-day lives. The legal profession, in which lawyers and judges are under express and implied duties to use technological means of improving their efficiency, is no exception.

The discussion then shifted to arbitration in particular, and the suitability (or otherwise) of certain generative AI tools for the preparation of administrative documents, and even pleadings and awards. It was noted, for example, that arbitration sits in an interesting and paradoxical niche of being, on the one hand, highly flexible and amenable to procedural innovation, but also, on the other hand, constrained by a general reluctance to take risks as a result of the high-stakes, high-value nature of disputes.

Most provocative was the suggestion of an entirely “synthetic arbitrator” built with AI, to which concept the attendees of today’s event had already been exposed during the panel discussion in Session 6 of yesterday’s ACICA & CIArb International Arbitration Conference, entitled “Arbitration New Frontiers: AI, Sustainable Practices and Other Ideas”. It was said that a sophisticated AI could be more than simply a conglomeration of data, and that it could have “emergent capabilities” as a product of “general intelligence” that equals or, indeed, surpasses that of humans. Dr McCalman suggested that the feasibility of developing an AI arbitrator of this kind would require us first to define what we as members of the arbitration community deem to be the features of a “good arbitrator”. He concluded the discussion by enunciating his perspective that the preference for human judgment and procedural safeguards in arbitration has the potential to run counter to “getting good outcomes”, in the sense of providing efficient answers to the relevant questions in dispute.

The discussion ended with a glimpse into the near future of AI in the legal profession, for which the speakers recalled how unprecedented the recent explosion of interest in AI is, and considered a projection of even only 10 years into the future as defying prediction — a black swan event indeed.

Rapporteur: Peter Taurian

In Celebration of 30 Years of ArbitralWomen – Unleashing the Arbitration Disrupters: The Metaverse, Digitalisation and Decentralisation for a New Era of Justice

Hosted by: ArbitralWomen, Clifford Chance

Speakers:

• Erika Williams (Williams Arbitration) (Moderator)

• Julia Dreosti (Clifford Chance)

• Jake Lowther (SCC Arbitration Institute)

• Emily Hay (Hanotiau & van den Berg)

Covering ‘digitalisation’, ‘decentralisation’, and the ‘metaverse’ respectively, each of the panellists spoke on one of three new frontiers of dispute resolution. Julia first discussed space arbitration. Once the sole domain of State actors, the encouragement of innovation and entrepreneurship has led to the expansion of NewSpace, or the private space industry, creating interesting dispute opportunities involving complex public and private international law issues. Emily spoke on the ‘metaverse’, noting her involvement with Metaverse Legal, a decentralized organization which explores legal issues and organizes meetings in the metaverse. Jake spoke on decentralized arbitration platforms, including notably Kleros, the dispute resolution tool designed for the Ethereum cryptocurrency. The Kleros platform is premised on game theory, as anonymous ‘jurors’ bid to hear cases and are financially incentivized to converge on an outcome during the decision-making process. Such platforms aim to democratize dispute resolution and facilitate online transactions, particularly those relating to blockchain and smart contract disputes.

Typical Disputes

As to the types of disputes that arise in each ‘space’, Julia first noted that space disputes involve the same issues as those on Earth, such as M&A, contract, delays, antitrust, etc. Unique disputes arise between State actors under treaties, such as the Liability Convention. Emily noted that disputes within the metaverse remain a work in progress, though there is the potential to hold metaverse arbitral proceedings, as augmented reality technology may be able to accurately transmit 3D images. Possible disputes concerning the metaverse range from sector-related disputes arising out of the development of the metaverse as a product, to regulatory issues surrounding digital assets, such as competition, gambling, criminal, and consumer and data protection issues. Jake noted the public policy concerns, and issues surrounding the independence and impartiality of arbitrators, when examining the Kleros platform from a traditional dispute resolution perspective.

Role of Arbitration

Regarding the role of arbitration in each area of disruption, Julia noted that the Liability Convention provides for arbitration as the dispute resolution mechanism for disputes concerning compensation, though the award is a mere recommendation unless the parties agree it is binding. However, with the emergence of private actors, arbitration clauses are increasingly included in space-related contracts. Jake noted that dispute resolution platforms like Kleros are complementary to traditional dispute resolution methods such as arbitration, and cater to digitally sophisticated parties. Traditional arbitration can play a role in the execution or physical enforcement of decisions, illustrated by an award copying the content of a Kleros decision being enforced under the New York Convention. Emily noted that metaverse will necessarily comprise both offline and online elements, and that a combination of dispute resolution methods is needed, as questions regarding the application of laws, jurisdiction, and legal personality, among others, will need to be decided offline. Generally, metaverse-type platforms include arbitration clauses in their terms of use, while others select courts or small claims courts. Kleros could be a suitable platform, as jurors are familiar with the technological framework and its underlying values. Traditional dispute resolution mechanisms can also be adapted to better suit the digital environment, as evidenced by the recent development of digital dispute resolution rules.

Enforcement

Finally, on the issue of enforcement, Julia noted that typical enforcement issues are reflected in space arbitration. Generally, awards are complied with, but non-compliance can lead to costly and protracted enforcement efforts, as Devas v Antrix illustrates. Emily noted that enforcement issues for the metaverse depend on the tools used. For Kleros, such issues could include the writing requirement under Art II(2) of the New York Convention, as interactions in the metaverse do not fit into traditional conceptions of ‘electronic communications’ and may not be easily decipherable by decisionmakers. As to the validity of arbitration agreements, there may be issues surrounding the determination of a ‘meeting of the minds’, the status of an agreement with a decentralized autonomous organization, or whether proper notice for incorporation by reference has been given. There is also uncertainty as to the interaction with mandatory laws, as illustrated by Soleymani v Nifty Gateway. Courts have, however, devised creative methods for enforcement despite party anonymity, such as the Singapore High Court’s interim order against a defendant only identified by their Twitter and Discord handle.

Rapporteur: Caroline Xu

Walk & Run for Wellbeing Session 1

There was no better way to start World Mental Health Day 2023 at Australian Arbitration Week!

Thank you to the fabulous group of people who joined us for the first AAW Walk and Run for Wellbeing on a beautiful morning today in Perth. Runners, led by Daisy Mallett and Matt Lee, included Damian Sturzaker, Douglas Jones AO, Nicola Swan, Bryce Williams and Stephanie Hunt. Walkers, led by Judith Levine and Deborah Tomkinson included Caroline Swartz-Zern, Gordon Tan, Lauren Lindsay, Amanda Lees, Katie-Beth Jones, Anjali Anchayil, Sapna Jhangiani KC and Kourosh Kayvani. It may not have been so easy to get out of bed, but everyone felt better for it!

On this day in particular, the World Health Organization calls for all stakeholders to engage with issues of mental health, and to talk about what more needs to be done to make mental health care a reality for people everywhere. The theme for World Mental Health Day 2023 is ‘Mental health is a universal human right’ to improve knowledge, raise awareness and drive actions that promote and protect everyone’s mental health as a universal human right. Together as an arbitration community we aim to promote the importance of each others’ wellbeing.

To that aim, we look forward to our Talk for wellbeing this afternoon, with Amanda Lee FCIArb, Desi Vlahos and Professor Sam Harvey.

22^nd Annual Clayton Utz and University of Sydney International Arbitration Lecture

Hosted by Clayton Utz and the University of Sydney

Speaker: The Hon Justice Michael Buss, President of the Court of Appeal

As was noted by Professor Vivienne Bath in her vote of thanks after the lecture, it is difficult to imagine a more comprehensive treatment of so much of Australia’s international and domestic arbitration regime than that in tonight’s 22^nd Annual International Arbitration Lecture, organised by Clayton Utz and the University of Sydney and hosted at the Federal Court of Australia.

The lecture was delivered by the Hon Justice Michael Buss, President of the Court of Appeal, who spoke on “The Role of Court Assistance in Commercial Arbitration”. As President Buss outlined at the beginning of the lecture, court involvement in arbitration is typically conceived of as “interference”, and is often automatically associated with such judicial approaches to arbitration as tend to vitiate parties’ agreement to dispose of their disputes in an extracurial setting by way of arbitration. In fact, this was the view of the authors of the Explanatory Note to the UNCITRAL Model Law, who explained that the clear trend in international commercial arbitration was to limit the jurisdiction of courts in these contexts. However, court “assistance” is a wholly different species of court involvement in arbitration, and is a valuable, indeed necessary, means of facilitating and legitimising the resolution of disputes via arbitration. The President suggested that the provisions of the Model Law pertaining to court involvement be considered in two categories: first, those provisions whereby the court expressly imposes itself on arbitral proceedings, including in the appointment of arbitrators, review of the tribunal’s jurisdiction and recourse against the award; secondly, those provisions whereby the court’s role in supporting arbitration is “adjacent” to the arbitral proceedings, such as by staying curial proceedings, ordering interim measures, or facilitating (or, where appropriate, refusing) the enforcement of an award.

The President began with the provision of the Model Law that expressly defines the “extent of court intervention” (Article 5), namely by prescribing that “[i]n matters governed by this Law, no court shall intervene except where so provided in this Law”. Whereas the meaning of this concise provision may seem clear at first blush, the President dissected its constituent components to reveal a complex history of judicial treatment of the subject. For example, the words, “matters” and “intervene”, are left undefined in the Model Law, and the qualification that the provision applies only to “matters governed by this Law” leaves open the possibility of other means by which a court can intervene in arbitral proceedings.

A large portion of the body of the President’s lecture concerned the interesting topic of interim measures. In the original 1985 UNCITRAL Model Law, court-ordered interim measures were the subject of Article 9, which consisted only in permissive language to the effect that court-ordered interim measures would not necessarily constitute a violation of the parties’ agreement to eschew litigation before the courts in favour of arbitration. Relevantly, Article 9 did not positively confer jurisdiction on the courts to order interim measures in respect of arbitrations, nor did it delineate what interim measures might be ordered, nor did it provide criteria for a court to take into account in assessing whether or how to order such measures. While further instruction was provided for in Article 17J, inserted in the 2006 amendments to the Model Law, it suffices, by way of summary of the President’s lecture, to say that this insertion by no means finally resolved these ambiguities.

In the final half of the lecture, the President considered a variety of provisions under the UNCITRAL Model Law, including those pertaining to the appointment, challenge and replacement of arbitrators, the jurisdiction of the tribunal, and the collection of evidence, and the role of the court in respect of all of the foregoing. The most substantial discussion was, however, in reference to the award, including the standard of reasons upon which a court is permitted to insist in an arbitral award, and the grounds upon which a court may set aside or refuse to enforce an award. In light of a series of judicial decisions on these topics, the President concluded that Australian courts understand and respect the particular role carved out for them in the legislation, and the distinction between support and interference in arbitral proceedings. Courts “get it”.

Rapporteurs: Edward Wu & Peter Taurian

Ciarb YMG: From Down Under to Up Above

Hosted by Ciarb Young Members Group

Speakers:

• Julia Dreosti (Clifford Chance)
• Rodolphe Ruffie-Farrugia (Clifford Chance)
• Ruth Stackpool-Moore (Omni Bridgeway)
• Steven Davis (Descartes Labs)
• Steven Freeland (Western Sydney University/Bond University
• Ash Richter (BHP)

This seminar was co-supported by Clifford Chance and Omni Bridgeway with the focus being ‘Space Resource Exploration and Exploitation: Opportunities and Risks in the New Frontier’. To begin with, three key probing questions were outlined that the panel would take us through being as follows:

• What are the opportunities in space particularly with the benefit of the resources sector we have here in Western Australia?
• What is the legal framework for exploiting resources in space?
• If there are disputes, what is the best resolution?

Steven Davis gave us an interesting overview from the private sector space industry. He provided a number of ways in which the space industry is currently adding commercial value to society including:

• Utilising existing information signals that solve customers’ problems and commercialising this data.
• Utilising AI to identify geological anomalies in assisting mining exploration.
• Utilisation of satellite data to identify signals in commodities markets (for example, monitoring competitor factories to witness trends in market outputs).

Notably, Steven brought attention to the fact that any special interest group, such as regulators, can look at the activities a company is undertaking from space, which raises a question of privacy as well as liability for inaction by regulators should they fail to monitor undertakings.

Ash Richter from BHP furthered this discussion by drawing attention to activities and challenges that BHP is facing in the sector. She noted that mining companies are taking a more active approach towards the space industry in forming JV arrangements in order to harness new technologies such as geospatial mapping. Ash noted that we are a long way off space mining but is optimistic on developing comprehensive international space regulations that are beneficial to society.

Clifford Chance lawyer Rodolphe also provided a comprehensive discussion on space treaties noting that space should be used for scientific and peaceful endeavours which was an idea formulated in the 1960’s and prior. He did however note that there is currently no international law on resources in space and whether they can be appropriated for private use, also mentioning the 2015 US legislation that allowed companies who gathered resources in space, ownership of those resources back on earth.

Rodolphe also discussed disputes in space, including the common current day disputes involving satellites, noting that more disputes will arise over resources and national interests. The panel noted that this was similar to the nature of private and state disputes that currently exist between mining companies.  The point was also made that state-to-state disputes will likely arise in relation to space exploration. Rodolphe also mentioned that investor-state disputes are very similar to today’s (and future) space problems, suggesting it as a possible model for the international law on space.

Steven Freeland also provided notable discussion topics, especially as someone with a high level of expertise on the subject matter. He noted that we need to learn from terrestrial mining activities when allocating resources in space and consider the environmental impact on mining in space. Steven also noted that the current treaty framework, while 60 years old, has meant that space has worked and also mentioned that we are largely regulating an unknown in which balance has to be found between maximising the benefits or resources in space in a way that also minimises risk.

The entire panel noted that arbitration was likely a primary form of dispute resolution in relation to the sector going forward and the panel provided a very unique and interesting conversation on the topic.

 Rapporteur: Edward Hamersley

Australian Insights: Update on the UNCITRAL Working Group III and the future of ISDS reform

Hosted by UNCAA

Speakers:

• Boxun Yin (Barrister, Banco Chambers) (moderator)
• Dr Sam Luttrell (Partner, Clifford Chance)
• Jo Feldman (Partner, Norton Rose Fullbright)
• Lucy Martinez (Independent Arbitrator, Martinez Arbitration)
• Rodolphe Ruffie-Farrugia (Senior Associate, Clifford Chance)

The topic of investor-state dispute settlement (ISDS) took centre stage as the panel discussion focused upon the prospective changes flowing from the recent sessions of the UNCITRAL Working Group III and the implications for Australia. The panel featured Dr Sam Luttrell (Partner, Clifford Chance), Jo Feldman (Partner, Norton Rose Fullbright), Lucy Martinez (Independent Arbitrator, Martinez Arbitration) & Rodolphe Ruffie-Farrugia (Senior Associate, Clifford Chance), whilst expertly moderated by Boxun Yin (Barrister, Banco Chambers).

The panel first addressed the multilateral character of the UNCITRAL Working Group. The Working Group is regarded as the sole forum on ISDS reform in the global arena, indicating the critical role played by this body. The Group meets three times a year to discuss key topics of ISDS reform with both countries and NGOs, with sessions predominantly featuring academics, private practitioners and government representatives. The panel further elaborated upon the sessions continuing to bear political undertones given the discussions primarily focus upon the domestic policies of nation states.

Lucy subsequently provided an in-depth analysis of the overarching context of ISDS reform, highlighting the relative infancy of the ISDS framework. The   establishment of the first bilateral investment treaty (BIT) in 1959 and ISDS claim in 2000 showcases the rapid development of treaty drafting and ISDS reform over the past two decades. Lucy further elaborated upon the Draft Provisions on Procedural and Cross-Cutting Issues, drafted by UNCITRAL Secretariat, as possible reform of the existing ISDS framework after multiple sessions convened by the Working Group.

The panel turned to Draft Provisions 6 & 7, on Recourse to Local Remedies & the Waiver of Rights respectively, to contrast avenues of ISDS to local remedies available within national jurisdictions. In particular, Rodolphe spoke towards the irony of recent ISDS reform in redirecting parties to local remedies from courts prior to seeking ISDS mechanisms, when the concept of ISDS was born from the need to separate disputes from possibly biased national courts. Sam further reinforced the concerns associated with overreliance upon national courts, with local remedy clauses threatening to stall the resolution of disputes given the significant case loads of local courts.

Draft Provision 10 on Shareholder Claims became the next focal point, with Sam providing further elaboration to the use of these clauses by private parties and tribunals. Sam additionally underlined the denial of benefits based upon third-party funding under 2(a) of the Draft Provision may restrict access to justice for small to medium-sized enterprises, which are often reliant on third party funding for investor-state arbitration.

The discussion then shifted towards the Right to Regulate enshrined within Draft Provision 12. Rodolphe deftly encapsulated the current contentious issue between countries on this Draft Provision as whether a state attracts liability for passing a law regulating issues of public interest. Whilst Jo indicated this right may be expressly included in agreements, Lucy advocated for greater flexibility within international law by relying less upon codification and prescription in international law, facilitating a genuine and accurate assessment of each case on its merits.

The panel concluded with a discussion on the implications of the suggested substantive reforms contained within the Draft Provisions on Australia broadly. Sam provided a unique analysis of Australia’s inherent balanced perspective to ISDS given Australia’s role reversibility. Sam further added the benefits of preserving the ISDS framework for Australia’s mining industry, which often relies upon the treaty programs of other countries as destinations of mining investment. Jo then contrasted the geographical advantages and disadvantages of Australian investors in the Europe region in comparison to the Asia-Pacific, with Rodolphe expanding upon the European lenses by characterising ISDS as a matter of key public scrutiny within the region.

Rapporteur: Sami Shamsi

Competence-Competence or Incompetence-Incompetence? Court Intervention in Tribunal Jurisdiction

Hosted by King & Wood Mallesons

Speakers:

• Kanaga Dharmananda SC (Barrister, Quayside Chambers) (Chair)
• James Wang (Partner, King & Wood Mallesons)
• Cathryn Joyce (Senior Associate, King & Wood Mallesons)
• Long Pham (Barrister, Quayside Chambers)

Competence-competence (or kompetenz-kompetenz) was the topic of this afternoon’s panel discussion hosted by King & Wood Mallesons and chaired by Kanaga Dharmananda SC, who stood in for the Hon Justice Michael Lundberg. Suitably for a principle that is fundamentally built on paradox and doctrinal complexity, the speakers of today’s event commented on the intricate tapestry of nuances and subtleties that undergird it. As was outlined at the outset, the question that arises from the principle of competence-competence in practice is the extent to which court intervention should be permitted in evaluating the jurisdiction of arbitral tribunals. Whereas the courts are under an obligation to hear parties with legitimate disputes who may not have submitted to the jurisdiction of a tribunal, that obligation is to be balanced with the serious public policy consideration of protecting innocent parties against the frivolous litigation of disputes for which arbitration was the agreed form of dispute resolution. In light of this legitimate balancing exercise of public policies, it was suggested that regarding jurisdictions as simply “pro-“ or “anti-arbitration” elides the importance of this balancing exercise.

James Wang began the discussion by providing an overview of the legal issues that arise in relation to competence-competence, beginning with a definition of the concept, an exposition of its ancient and modern origins, and an evaluation of proper and improper ways of construing it and its bases. The concept was contrasted with the doctrine of separability, which was submitted to be a distinct concept that, nonetheless, may complement competence-competence in certain circumstances. Particularly relevant for the discussion that ensued was the idea that competence-competence is not (and cannot be) a product of any arbitration agreement; rather, it arises from statute, which may be the lex arbitri or the law of the court in which enforcement of an award is sought, whichever the case may be. The former (the lex arbitri) governs applications for stay of proceedings and for setting aside, which would be the theme of the following two speakers, respectively.

Long Pham described two alternate approaches to the judicial assessment of stay applications: the so-called “prima facie approach”, whereby a court grants a stay of proceedings when there appears, prima facie, to be an arbitration agreement validly conferring jurisdiction on an arbitral tribunal; and the “full merits approach”, whereby the court grants a stay of proceedings only after fully assessing the merits of the parties’ contentions on jurisdiction, and deciding definitively that the tribunal does in fact have jurisdiction. The approaches of various jurisdictions around the world were compared and contrasted, with the Australian example being offered finally as a jurisdiction with no such clear dichotomy of approach, which relies instead on contextual indicators to inform its approach in each instance. The overarching question, therefore, for arbitral tribunals is to be considered in light of the fact that courts will always be the final arbiter of a tribunal’s jurisdiction: should the tribunal decide on jurisdiction in the first instance, or should it refer the decision automatically to the court?

Finally, Cathryn Joyce considered the position in respect of setting aside applications. The main topic for discussion was whether a court hearing an application to set aside an award on jurisdictional grounds should hear the evidence pertinent to the tribunal’s jurisdiction de novo, by way of rehearing, or as an appeal. It was suggested that the language of Australia’s arbitration legislation precludes the latter approach, as there is no requirement to expose error in the tribunal’s approach. As such, the question turns on the amount of deference to be given by the court to the tribunal’s reasoning and findings. The case study provided for this question was the controversial decision of the Supreme Court of Western Australia, affirmed by the Court of Appeal, in Chevron Australia Pty Ltd v CBI Constructors Pty Ltd [2021] WASC 323, which considered the exhaustion of a tribunal’s jurisdiction through the doctrine of functus officio.

As was evidenced in particular by the thorough engagement by the audience with the panellists after the presentation proper, this area of arbitration law continues to be the site of scholarly interest and controversy. The panellists were surely correct to suggest that members of the arbitration community watch the progression of the law in this area closely, in light of a series of anticipated forthcoming judicial and legislative developments.

Rapporteur: Peter Taurian

Blood Sweat and T…ribunals: Australian Sports Tribunals and Lessons Learnt from International Sports Arbitration

Hosted by Clifford Chance

Speakers:

• Jamie Calvy, Senior Associate, Clifford Chance (moderator)
• Stephen Meade, General Counsel, Australian Football League
• John Boutlbee AM, Inaugural CEO, National Sports Tribunal
• Venetia Bennett, Barrister and NST Member, Francis Burt Chambers

Moderated by Jamie Calvy, this session brought together an experienced panel who each work directly at the intersection of sports and law, to discuss the use of tribunals as the primary method of dispute resolution for sporting bodies in Australia.

The panel gave insight into three levels of sporting tribunals: league-specific, national and international.

Many familiar leagues including Rugby Australia, the Premier League and the AFL all have rules which refer disputes to arbitration. Stephen Meade explained that the benefits of a league-specific arbitration process for the AFL, particularly for on-field disciplinary matters, is that the tribunals can be constituted of people who are deeply familiar with the sport and the issues specific to it.

In 2019, the National Sports Tribunal was created as an independent tribunal to resolve sporting disputes. Its inaugural CEO, John Boultbee AM, explained that the NST’s jurisdiction is wide, with the CEO having power to designate bodies as sporting bodies and disputes as sporting disputes such that they fall within the Act – he clarified that carriage driving disputes, however, fall under neither. The NST does not have jurisdiction over on-field disputes nor the power to award damages. The biggest users of the NST are Paddle Australia and Triathlon Australia (which John Boultbee AM attributed to selection/eligibility disputes particularly for Olympic teams) as well as Equestrian Australia and Gymnastics Australia who were involved in bullying, harassment and discrimination disputes as well as safeguarding disputes surrounding protections for young athletes. John Boultbee AM considered that these types of disputes will increase given society’s focus on the role and behaviour of coaches after documentaries like Athlete A.

As the NST is new, many larger professional sports bodies, like the AFL already have established dispute resolution mechanisms and are reluctant to use the NST. While Stephen Meade noted this reluctance from the AFL, he considered that cases concerning the participation of non-binary and transgender athletes in sport, as well as allegations of racially motivated misconduct, might be better referred to an independent, external tribunal as participants may have a distrust of the sporting organisation and discomfort with using its internal mechanisms.

Venetia Bennett was asked to consider some of the difficulties with this process including consent. She emphasised that although the process of going to arbitration at the NST is by agreement, in her experience people tend to agree to have the matter referred to the NST because of its position as a neutral, independent body. She also discussed the significant issue of funding, particularly in relation to anti-doping cases where the costs of obtaining important evidence are high. She mentioned that while some sports might support athletes through a tribunal process, it often depends on the goodwill of the legal profession. In this regard, John Boultbee AM described a legal assistance panel that is set up to do just this through the NST and mentioned that the NST also has the option to waive fees for impecunious litigants.

The panel then turned to consider the Court of Arbitration for Sport, an international body that decides, amongst other things, all disputes referred by the Olympic Charter. The main Australian cases decided by the CAS have been doping appeals, as well as selection disputes. However, John Boultbee AM explained that since the creation of the NST all Australian Olympic Committee selection disputes go to the NST which is quicker, and less expensive.

The panel considered that a significant issue with CAS is that it does not publish all its decisions, and it is difficult to access the decisions on its database. On this issue of transparency and precedent, Venetia Bennett spoke on the point that although there is no formal system of precedent in arbitration, consistent decisions around the world for the same sport are very useful. There will of course be justifiable differences where laws and customs of a jurisdiction may be influential on a sport’s rules but for contexts like anti-doping where there is a World Anti-Doping Code, there can be a lot of useful reference to previous cases. The NST can publish reasons if a decision sets a precedent, which John explains, many do given that it is new body.

The panel agreed that confidentiality throughout the investigation and fact-finding process is important, especially in doping cases which can be invasive and impact an athlete’s career before a finding is made. However, the panel agreed with John Boultbee AM that when clear and carefully worded reasons are given, it is in the public interest that these are published, albeit sometimes with anonymity measures in place, rather than relying on media speculation about the outcome.

There are developments in the procedures by which sports disputes are determined, and with the relatively new creation of the NST and its interactions with other sporting bodies and sports tribunals, this will be a space to watch.

Rapporteur: Alisha Mathias

Kill the Technical Dispute

Hosted by Resolution Institute

Speakers:

• Doug Johnson (Barrister, Francis Burt Chambers, Perth) (moderator)
• Nick Longley (Partner, HFW, Melbourne)
• Russell Thirgood (Independent Arbitrator, Brisbane)
• Michael Hollingdale (Principal, Hollingdales, Perth)

As projects become larger and incorporate increasingly complex technology at all levels, technical issues frequently arise resulting in complex technical disputes. This was the sentiment expressed in the opening remarks of session moderator, Doug Johnson, who set the stage for the distinguished panel, before they explored three different dispute resolution processes and how they might best be utilised to ‘kill’ the technical dispute (or at least deal with it efficiently).

Each member of the panel provided a brief overview of their nominated dispute resolution process, along with a high level assessment of the advantages and disadvantages that method brings to the table when tackling technical disputes.

Med-Arb – Michael Hollingdale

Michael Hollingdale kick-started the discussion with an overview of the Med-Arb process, a unique blend of mediation and arbitration. He highlighted how the hybrid method offers parties flexibility in dealing with multiple disputes. He distinguished the process of the arbitrator acting as mediator from the alternative process of a mediator and arbitrator as separate neutrals working in the same dispute resolution process. In the latter process, the mediator could be aligned with the arbitration process sequentially or in parallel or on standby. Giving insight on the strengths of this process in resolving technical disputes, Hollingdale suggested that Med-Arb could be used to segment intricate technical disputes to be settled via arbitration, whilst allowing other, less difficult issues to be resolved at the mediation stage. As for the weaknesses of the process, where the arbitrator also acts as mediator there would be confidentiality concerns and scepticism of the dual role of the mediator and arbitrator can lead to parties being unwilling to ‘put all their cards on the table’. These factors were acknowledged as likely contributing to the underutilisation of this process in the Australian jurisdiction.

Expedited Arbitration – Russell Thirgood

Next in line was Russell Thirgood, whose focus was on expedited arbitration, a timely and efficient alternative dispute resolution processes, with the time limits imposed helping to reign in the process. He referred to the Resolution Institute Arbitration Rules 2023. It was noted that under those rules, cases involving less than $2m must fall within the expedited process in those rules (a hearing within 4 months and an award within 1 month subject to some exceptions). He advocated that the best outcome was achieved by parties first reaching their own resolution on as many points to a dispute as possible before the final points are referred to expedited arbitration for swift resolution. In emphasising the benefits of arbitration generally, Thirgood noted confidentiality as being one of the most important factors which attacts parties to this method. Additionally, he noted that the binding and ‘final’ nature of an arbitration award means that it really can ‘kill’ the technical dispute, with only a few narrow ways for an award to be set aside by the courts.

Expert Determination – Nick Longley

Lastly, Nick Longley championed expert determination as being, in his experience, the most frequently used method of binding ADR in Australia. Noting that expert determination is increasingly used as the final dispute resolution method in tiered dispute resolution clauses, Longley attributed this to the attractiveness of allowing parties to select their expert, determine how quickly a dispute is resolved (by imposing a time limit on the process and the expert’s determination) and flexibility in deciding whether the determination would be binding, non-binding or binding up to a limited quantum (although his clear preference was for a binding determination).

Throughout the presentations, common threads emerged. Each speaker highlighting the benefits of allowing parties to tailor the process to best address the particular dispute as being paramount. Being able to utilise multiple processes, with the easier parts of the dispute being addressed in a separate process to the more complex points (which might require a third party’s determination) was also raised by speakers. It was recognised that complex technical disputes were prime candidates for issues which should be isolated and dealt with separately where practicable.

The interactive session allowed participants to pose questions to the panel, resulting in a lively exchange of ideas on the prevalence of each dispute resolution process in Australia and the reasons why some processes are preferred over others.

In the ever-evolving world of technology, where the rise of technical disputes is inevitable, today’s session provided a useful reminder of the virtues and limitations of these dispute resolution processes and how they might best be used when we want to ‘kill’ a technical dispute.

Rapporteur: Harrison Kerr

The History and Evolution of Australian Arbitration: Past, Present and Future

Hosted by ICC Australia

Speakers:

• Mark Mangan – Partner, Dechert, Singapore
• Simon Davis – Barrister, Francis Burt Chambers, Perth
• Judith Levine – Independent Arbitrator, Levine Arbitration, Sydney
• Daisy Mallett – Independent Arbitrator, Sydney
• Ben Olbourne – Barrister, 39 Essex Chambers, Singapore

On the occasion of the Centenary of the ICC Court and the 190^th Anniversary of the Australian Chamber of Commerce and Industry which houses ICC Australia, this panel addressed the past, present, and future trajectories of the arbitration landscape in Australia.

A lot of discussions at Arbitration Week tend to focus on the “present” and “future” of arbitration in Australia, but Simon Davis took the audience back 65,000 years with an insightful speech beginning with the dispute resolution processes used by Aboriginal and Torres Strait Islander peoples akin to arbitration before colonisation. In making his comments, he drew on the work of Distinguished Professor Larissa Behrendt of the University of Technology. He referred to how Elders within communities acted like arbitrators in “meetings” that took place during ceremonies, and women playing a prominent role in these meeting by using their influence to prevent violence between the aggrieved people. Simon then moved onto discussing the use of arbitration after colonisation, in particular, the legislative developments that established Australia’s international and domestic arbitration regimes.

Judith Levine furthered the discussion with her comments regarding the post-2013 developments that have strengthened the practice of arbitration in Australia. She split her speech into three parts: legislative, institutional and judicial. First, she discussed the legislative amendments to the International Arbitration Act 1974 (Cth) in 2010 and 2018. It was noted, for example, that in the 2018 amendments the code regulating confidentiality in international arbitration does not apply in relation to certain investor-state disputes. Judith then discussed three key institutional documents that highlight the developments made, and achievements that have been accomplished, in Australian arbitration:

• ACICA Australian Arbitration Report (2020)
• ACICA Rules (2021)
• ACICA Reflections Report (2022).

Finally, she considered some recent court cases that are significant to arbitration practice in Australia. This included Rinehart v Hancock Prospecting Pty Ltd, Kingdom of Spain v. Infrastructure Services Luxembourg S.à.r.l. & Anor, Tesseract International Pty Ltd v. Pascale Construction Pty Ltd and Zeph Investments v Australia.

Next up was Daisy Mallett, who was tasked with identifying new frontiers for arbitration related work in Australia. She began by discussing how the energy transition and the physical impacts of climate change will result in an uncertain regulatory landscape and new arbitration related worked. She then considered the new Power Purchase Agreement entered into by Fortescue Metal Groups Ltd with a wholly owned subsidiary of Genex Power Limited for 335.5 megawatts of new solar energy (see: https://cdn.fortescue.com/docs/default-source/announcements-and-reports/02722440.pdf?sfvrsn=77fed7b0_6). She identified the problems that can arise with the supply of renewable energy, such as connection to the grid, uncertain regulatory approval and intermittency of the renewable energy.

The final part of this panel was a discussion on the ways in which Australian arbitration can be further developed. Ben Olbourne took the lead on this issue. He first noted that arbitration practice in Australia was already in good form with a robust legislative framework, an efficient court system and modern arbitral rules. He posited that it is difficult to further develop Australian arbitration internationally because it is not a first mover in international arbitration and due to its geographical location. Despite these difficulties, he argued that Australia arbitration could be developed further by clearly demonstrated its “comparative advantage”. Ben applied this economic theory to propose that Australia should not try to do the same thing as other countries, but rather, should focus on specialisation in particular areas of arbitral practice. One such example of an area of specialisation that Australia could become a leading centre was deep sea mining disputes. Furthermore, it was suggested that greater demand for Australian arbitration needs to be created internationally. This could be done, for example, by impressing upon other institutional bodies the benefits of including Australian seated arbitration clauses.

Within a one-hour session these formidable panellists treated its audience to an engaging discussion on the “Past, Present and Future” of arbitration in Australia. The key takeaways from the panel were that the history of arbitration in Australia is unique, the present developments have been effective and robust, and the future looks bright.

Rapporteur: Tasnim Ahsan

Memorials – the Good, the Bad and the Ugly

Hosted by ACICA45

Memorials – the Good, the Bad and the Ugly featured a panel of six experts who conducted a two-part workshop on how to improve memorial writing for arbitrations. Key takeaways from the first part of the following are as follows.

1. Memorial Basics
   • A memorial is the first fully developed submission and serves as a roadmap for the proceedings.
   • It sets out legal arguments, lay evidence, expert evidence, and documents in a narrative style.
   • It may not be necessary in jurisdictional matters, where traditional pleading is more advantageous due to the cost constraints.
   • Both memorial and traditional pleading have their place in arbitration.
2. Traditional Structure
   • A memorial follows a structured approach, including an executive summary, factual background, legal arguments, and the application of law to facts.
   • Low-value items can be dealt with in annexures or schedules.
   • Issues need to remain clear and distinct as to not confuse the presiding arbitrator(s).
3. How to Structure a Claim in a Memorial
   • Ensure that the narrative doesn’t overshadow the elements you need to prove the claim. Remember the law and the facts take priority.

In the second part of the workshop, we were presented with a fictional memorial involving a scenario where a respondent is alleged to have performed defective design services at a container terminal. This memorial focused on a duty of care claim and as such the various elements were considered in relation to effectively structuring, key points made are as follows.

1. Legal Argument
   • Make it easy for the arbitrator to follow.
   • Clearly explain fundamental arguments, defined terms, and back legal points with authority.
   • Present your conclusion at the end for clarity.
2. The Facts
   • Begin with the facts and make them engaging and narrative-like for readability.
3. Witness Statements
   • Explain the importance of witness statements.
   • Encourage specificity to add weight to the evidence.
   • Avoid allowing witnesses to comment on aspects of the law.
4. Expert Evidence
   • Engage experts with high expectations in mind.
   • Assist arbitrators by not assuming they understand expert concepts. Include an annexure with basic concepts.
   • Provide a summary of expert evidence as an annexure.
   • Avoid acronyms and provide a glossary.
   • Include drawings and photographs in the memorial to enhance understanding.
   • Ensure accurate document ID numbers.
5. Conclusion
   • In your conclusion, draw the threads together and summarize the key points of your memorial.

All in all the session was immensely engaging and informative, especially as a young person interested in the field. 

Rapporteur: Edward Hamersley

Local & Global Trends and Developments in Commercial Arbitration

Hosted by Norton Rose Fulbright

Speakers:

• Dylan McKimmie
• David Streatfeild-James KC

Dylan McKimmie and David Streatfeild-James provided an insightful presentation on emerging trends in commercial arbitration at Norton Rose Fulbright’s offices.

The first trend the pair highlighted related to the trend for arbitration in very large project disputes, particularly in the LNG space, in Western Australia and Queensland. The sector has been impacted heavily upon and will likely be amplified by global affairs such as the conflict in Russia and emerging crisis in the Middle East. The overarching point that was made is that commercial disputes arising from price volatility in LNG projects will become increasingly common. In association with the ongoing energy transition, price reviews are becoming more prevalent. These reviews can lead to entrenched disputes, often requiring arbitration for resolution. This price volatility risk also increases the risk of counterparty insolvency as other contractors are impacted via contagion, leading to further examples of an increase in the role of arbitration. This was seen in the early-mid 2010’s regarding Iron ore which directly saw an increase in arbitrations.

The second trend discussed involved discussion of the growing use of Artificial Intelligence (AI) in arbitration which covered six main areas, including:

• case summaries,
• witness statements,
• predicting arbitration outcomes
• the sources of AI learning
• AI’s role in arbitral decision-making
• and virtual arbitration platforms that simulate in-person interactions.

The panellists emphasised the potential role and issues of AI dispute resolution systems making decisions in disputes offering advantages such as speed, cost-effectiveness, high-quality decisions, and increased access to legal processes. However, AI decisions also lack transparency and concerns were raised about negligence arising when AI is not utilised by counsel.

Rapporteur: Edward Hamersley

Investment Arbitration: an evening of conversation

Hosted by Norton Rose Fulbright

Speakers:

• Jo Feldman, Partner at Norton Rose Fulbright
• Daniel Allman, Partner at Norton-Rose Fulbright
• Nathan Landis, Barrister at Francis Burt Chambers
• William Panlilio, Investment Manager and Global Disputes Counsel, LCM

Investment Arbitration, also known as Investor-State Dispute Settlement (ISDS), is a complex aspect of the international business arena aimed at resolving disputes between foreign investors and the governments of ‘host states’ where investment has been made. During a recent evening of conversation, Daniel Allman and the attendees had the opportunity of tapping into the industry expertise offered by Jo Feldman, William Panlilio, and Nathan Landis, who shared their insights across a range of matters encompassed under the umbrella of Investment Arbitration.

Understanding Investor Perspective

The evening begun by shedding light on the mindset of foreign investors and the areas of concern when embarking on an investment. The key takeaway is the necessity for investors to adopt a proactive approach in the early stages of investment to make the most of Treaty Protection.

It’s common for investors to come to the realisation, belatedly, that they’ve failed to organise their investments to take advantage of treaty protection. This oversight can have significant repercussions, relevantly for entities like Australian mining companies, which are susceptible to changes in the regulatory landscape of the host state. Treaties can also be used as a tool for better managing negotiation with governments. Government policy decisions might not be intentionally harmful to investors or in clear violation of treaties, yet frequently, no action is taken until an investor identifies a breach and requests the government to conduct a review. This type of conduct covers a whole tranche of disputes between governments and investors, from negotiation through to arbitration. In these instances, it is far better having treaty protection than not.

The (lost) role of Political Risk Insurance

An attendee turned the conversation to the role of political risk insurance. A decade or two ago, it was widely believed that political risk insurance would replace treaty protection. However, the reality is different. The benefit of treaty protection, as opposed to political risk insurance, is the longevity, no policy limit and and the best part? it comes at no cost!

We were then reminded, “its free until it’s not!” Treaty protections are available to anyone via investment structure. However, when it comes to asserting rights and engaging counsel, the costs indeed increase.  Investment arbitration is incredibly complex, particularly if an investor is operating in high-risk regions or industries. While treaty protection is encouraged, investors need to be aware of these risks – and of a good litigation funder.

Litigation funding

As the event progressed, we listened to unique perspectives within the field of litigation funding, concerning relational expectations. Regardless of funder presence, we were reminded that the lawyer-client relationship lies at the heart of all disputes. It is the client who drives the process.

To illustrate this point, we heard an anecdote of two conglomerates who won a series of arbitrations against their host state. However, the government simply refused to honour the award and even went as far as withholding licence renewals unless the conglomerates waived their rights – a concession which they made to keep operating. In such scenarios, both legal and practical implications need to be considered, and it remains the client’s prerogative to steer the action, irrespective of a litigation funder. Bouncing off this story, it was added that in some instances, just the threat of arbitration can be a powerful tool against governments, as we have seen in Australia. However, via anecdote of a claimant who found themselves arrested upon stepping foot into host state land, we were reminded that if you threaten to pull the trigger – be ready! To this point, an attendee shared the invaluable assistance of on-ground co-counsel to shed insight on local dynamics.

The conversation then considered common disclosure practices of third-party funder relationships. A driving force is the need to protect the integrity of a tribunal and determine any conflicts that exist. Otherwise, disclosure as to the fact of funding and the identity of the funder may be sufficient. Working Group III has otherwise made broad attempts to reform this area.

An attendee asked whether becoming aware of a litigation funder’s involvement can influence strategy. This was addressed this by the sharing of two key messages that are aimed to be conveyed by a litigation funder:

1. There is presence of a relatively objective third party, who has looked at a dispute, undertaken robust due diligence and has still concluded that the case is poised to succeed from a quantum recovery perspective.
2. Financial resources are available! This should discourage the opposing side from engaging in delaying tactics or games, as litigation funding is committed to seeing the dispute through to its resolution.

Challenges of enforcement

A question was put to an enforcement team member in the audience, as to the behaviour of respondent states. “Enforcement is problematic”. Winning the award is just the beginning. Sovereign states have far more power than an ordinary corporate respondent. For example, they can place a claimant in administration in their jurisdiction or another over which they are able to exercise power. Often after an award there can be many coercive acts against people and companies, and to this point, the first treaty arbitration is not always the last!

The conversation then steered to the difficulties of incentivising claimants to engage in arbitration despite enforcement challenges. It is not as simple as host states having wealth held abroad to be pursued by investors. The situation is further complicated by the general position that judgements cannot be enforced against a sovereign asset. Accordingly, one needs to identify commercial activity to attach by drawing a line between the party on the award and the assets trying to be accessed. We heard a captivating anecdote as to the searching for assets after a party received an award that was not being complied with. Highly creative investigations were undertaken to interrupt a relatively low value, yet important, asset which was used as leverage to secure settlement in accordance with the award.

To conclude,the conversation carried on with more questions from attendees, and then broke into an evening of networking and nibbles!

Rapporteur: Maya Stampfer

ACICA Practice & Procedure Toolkit Cutting-edge tools for timely, cost-effective and fair arbitral proceedings

Hosted by ACICA

Speakers:

• Julia Dreosti and Kristian Maley | Counsel, Clifford Chance (hosts)
• Jo Delaney | Partner, HFW
• Mark Mangan | Partner, Dechert
• Caroline Swartz-Zern | Counsel, ACICA
• Bill Smith | Chair, P&P Board and Partner, Ashurst
• Suzanne Spears | Founder, Paxus LLP

Key Event Notes

Arbitration plays a pivotal role in resolving commercial disputes. In a recent session centred around a hypothetical scenario involving Volta Motors and BuildCo, participants engaged in a captivating discussion, focusing on enhancing their understanding of arbitration practice and procedures. The session, facilitated by experts in the field, Julia Dreosti and Kristian Maley (Counsel at Clifford Chance), emphasized the importance of neutrality, expertise, and adherence to ethical standards while navigating complex contractual landscapes. Moreover, it delved into the intricate details of arbitration procedure, the challenges it poses, and the benefits it offers to businesses worldwide.

Neutrality and Expertise in Multinational Contracts

The significance of neutrality and expertise when handling contracts involving multiple parties from different states was emphasised throughout the session. In such scenarios, such as the one presented, arbitrators must not only be impartial but also possess the technical expertise required to dissect complex contractual disputes. This ensures fairness and the proper application of the law, essential for the arbitrations success. Participants delved into the practice and procedure regarding arbitrator appointments in circumstances were they might be doubts as to their neutrality.

ESG Clauses and Code of Conduct

Panel members brought to light the pressing matter of Environmental, Social, and Governance (ESG) clauses, underscoring their enforceability through arbitration. These clauses have become increasingly important in today’s business landscape, demanding careful consideration during the contract drafting process. Ethical and responsible business conduct is crucial, and arbitration offers a means to enforce ESG-related codes of conduct.

National and State Regimes

The discussion expanded to the complexities associated with national and state regimes. Differences in legal systems, be it common law or civil law, impact the procedures and considerations in potential claims against companies. Participants were encouraged to meticulously evaluate their contractual provisions, considering jurisdiction, applicable rules, and the number of arbitrators.

Procedural Complexities and Interim Orders

Procedural complexities often arise in subcontract disputes, and the session highlighted the need for parties to pay attention to detail. Arbitrators are empowered to make broad and powerful interim orders, which can be equivalent to court orders. This authority allows them to take actions such as restraining parties involved, emphasizing the flexibility and effectiveness of arbitration in resolving disputes.

Memorials and Pleadings

The session concluded with a discussion on the benefits and differences between memorials and pleadings. Participants were reminded of the importance of setting out their case clearly, ensuring that the respondent fully comprehends the dispute. This clarity in presenting cases is crucial for effective arbitration proceedings.

Conclusion

The ACICA Practice and Procedures Toolkit provides valuable insights into arbitration practice and procedures, serving as a guide for practitioners and parties involved in commercial disputes. The session’s emphasis on neutrality, expertise, ethical considerations, and procedural complexities shed light on the nuanced aspects of arbitration. By incorporating these insights, lawyers and members of the international arbitration community can navigate the intricate landscape of international contracts with confidence, ensuring fair and efficient dispute resolution. Arbitration remains a powerful tool for resolving complex disputes in our globalized business world, facilitating equitable solutions for all parties involve

Rapporteur: Charlie Richards

Mitigating Sovereign Risk in International Construction Projects

Hosted by Clifford Chance in partnership with Construction Law Society of Australia

Speakers:

• Sean Marriott (Counsel, Clifford Chance)
• Professor Doug Jones AO (Arbitrator, Sydney Arbitration Chambers / Atkin Chambers London)

The seminar, hosted by Clifford Chance in partnership with Construction Law Society of Australia, focused on how International Investment Treaties, particularly, Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs) may make a key difference in mitigating common risks in international construction projects in circumstances where standard contractual remedies may lack. The common risks addressed in the seminar included but where not limited to:

• early project termination;
• lack of access;
• permit denials; and
• non-payment.

Professor Doug Jones, a distinguished expert in international arbitration law, opened the presentation by providing an insightful overview of the changing landscape of international construction projects. He noted that overtime the commercial and contractual structure of international construction projects had become more akin to traditional construction contracting with similar long-term investment and project finance practices. Consequently, this has generated a greater need for international construction projects to utilise the International Investment Treaty system which was designed to protect these types of investment projects which often involve significant capital, technological contributions and of course assumptions of risk. Thereby protecting contractors who effectively now have more “skin in the game”.

Turning then to the topic of Investment Treaties, the panellist provided a comprehensive overview of what an Investment Treaty is. Professor Jones, noted that there are over 3,300 such agreement in force worldwide today, comprising of BITs, Multilateral investment treaties and FTAs. During the discussion, Clifford Chance Counsel, Sean Marriott drew the audience’s attention to the utility of Investment Treaties, highlighting that they enabled contractors to bring Investor-State Dispute Settlement (ISDS) claims directly against the State in which their investment is made, before an international arbitration tribunal that is outside the control of the host Government.

The panel then turned to consider the substantive legal protections offered under International Treaties. These included:

• No unlawful expropriation: the host state must not expropriate the foreign investor’s investments unless it is done for a public purpose:
  • which is non-discriminatory;
  • is in accordance with the due process of law; and
  • accompanied by prompt, adequate and effective compensation;
• Fair and equitable treatment: the host state must not:
  • breach any legitimate expectations it has created by its representations to the investor;
  • harm the investment by unreasonable, discriminatory, arbitrary, or inconsistent or non-transparent conduct; or
  • fail to maintain a stable legal framework;
• National Treatment: the host state must grant foreign investors the same treatment that it gives to its nationals; and
• Most-favoured-nation treatment (MFN): the host state must grant foreign investors the same treatment that it gives to nationals of third countries. MFN lases can be used to import additional or better substantive protections from other Treaties.
• Full protection and security: the host state must physically (and possibly legally) protect the investment.

The esteemed panel enhanced the seminar by providing both real-life examples and a fictious case study to illustrate the benefits of an Investment Treaty. The seminar concluded with final remarks from both panellist.

This seminar reinforced the significance of proactive risk management in international construction projects and the need for to utilise invaluable systems such as International Treaties in order to safeguard investments in the face of political and regulatory risk.

Rapporteur: Courtney McVeigh

Resolving Disputes on Major Projects – Lessons Learnt from Recent Arbitration Proceedings

Hosted by ACICA and the Australian Bar Association

Speakers:

• Brian Millar, Barrister & Arbitrator, Francis Burt Chambers (Moderator)

• Charis Tan, Partner, Partner, Peter & Kim

• Gavin Denton, Arbitrator & Head of Chambers, Arbitration Chambers

• Ben Luscombe, Barrister, Francis Burt Chambers

• Helen McGahan, Senior Legal Counsel, INPEX

• Dawna Wright, Senior Managing Director, FTI Consulting

• The Honourable Kenneth Martin KC, Francis Burt Chambers

• Nicolas Crouy, APAC Area Contact Manager, Saipem (Provided written insights presented by Ben Luscombe)

Key Event Notes

In a recent seminar, industry experts delved into the intricacies of arbitration, sharing valuable insights and experiences with a focus the lessons learned over decades of experience. The seminar covered three key phases of arbitration: (1) inception of the project and how to best incorporate the best arbitration practices into contracts; (2) dealing with disputes as they arise throughout the delivery projects; and (3) dealing with major disputes arising at the end of projects. Here’s a breakdown of the key takeaways:

Project Inception: Charis Tan’s Insights

The seminar commenced with Charis Tan discussing the critical aspects of protecting projects under treaties. Tan highlighted the importance of investment structuring, emphasizing the need to take advantage of bilateral and multilateral treaties. This strategy serves as an insurance policy in case things go awry. The discussion focused on sectors like Oil and Gas, especially in CIS countries, with investments exceeding 100 million. A case study on Bilateral Treaties was presented, discussing the positioning of treaty shopping and tax benefits. Incorporation, Charis pointed out, was no longer the sole requirement; treaties now demand substantial business activity.

Ben Luscombe’s Five Key Points

Ben Luscombe weighed in with five critical points, advocating for proper investment structuring from the project’s outset. He noted the industry’s aversion to forum shopping and the ability of well-structured investments to secure better borrowing rates. Ben also highlighted the significance of international treaties, especially for Australia. He emphasized the need to check for fraud and irregularities with the assistance of local advisors and to establish robust systems for protecting both people and documents. Lastly, Ben urged participants to leverage the benefits of treaty associations and on the ground, local support, to best manage key interests.

Drafting Effective Arbitration Clauses: Charis Tan and Gavin Denton’s Insights

Charis Tan continued by shedding light on drafting arbitration clauses for the best effect. She stressed the importance of flexibility, discussed the pros and cons, and encouraged the use of model clauses. Charis emphasised the importance of expressly stating the law which is to govern the arbitration agreement. However, Charis cautioned against concluding arbitrations too quickly, as it can lead to issues of fairness and risks burning out legal teams. She advised against insisting on unicorn arbitrators, instead encouraging broad drafting terms which look for arbitrators who carry particular ascertainable characteristics and skill sets that align with the nature of the particular conflict.

Gavin Denton shared his perspective on drafting techniques, highlighting the prevalence of model clauses. He discouraged prescribing arbitrators, emphasizing the importance of flexibility in the contract. Gavin recommended strategies to keep arbitrators and chairs accountable, commenting on the docking of pay for significant delays and the use of closing submissions to trigger the timeframe for awards. Specifying the arbitrator’s skill set and understanding their cultural background was stressed. Effective communication among co-arbitrators and clients was presented as a way to strategically influence the arbitration process to ensure that the best outcomes were reached to the mutual satisfaction of all parties.

In-House Counsel and Dispute Management: Helen McGahan’s Perspective

Helen McGahan addressed the role of in-house counsel in arbitration. She underscored the difficulty in balancing the interests of prospective disputes and agreeing on arbitration clauses while ensuring accountability to management and adhering to the goals of ensuring project get underway. Helen advocated for providing in-house counsel with the tools and feedback needed to succeed and stressed the importance of transparent communication between internal and external counsel.

‘Si vis pacem, para bellum’ – Nicholas Crouys tips and tricks

Nicholas spoke through Ben, encouraging the spending of legal costs during the drafting and project delivery stages to minimise the risk of incurring significant and extensive costs down the road.

1. Spend an extra 50k on contract focusing on limiting liability.
2. Get external honest independent legal advice.
3. Challenge the legal advice.
4. Deal with basics as you go along. Read the entire contract.
5. Focus on the stuff that can bring the contract down.
6. If things so badly, open an effective dialogue between key stakeholders.
7. Once in arbitration work to narrow the dispute. Put it in the procedure orders.
8. No one complains if you win. Spend to win.

Managing Disputes as They Arise: Dawna Wright’s Strategies

Dawna Wright shared four essential strategies for managing disputes as they arise. She emphasized the need to agree on changes and variations throughout the project, rather than deferring them. Dawna also encouraged leveraging alternative dispute resolution mechanisms and seeking independent perspectives to test the merits of claims. She noted the importance of documentation and having a project overseer to ensure issues are documented along the way, and don’t get lost in changing personnel.

The Honourable Kenneth Martin’s Perspective and the Role of Arbitrators

Kenneth Martin underlined the importance of counsel’s intimate knowledge of the matter. He advocated for flexibility and finding arbitrators willing to make decisions while avoiding overloading them. Kenneth Martin shared stories from his experience as a Justice of the Western Australian Supreme Court. This had a particular focus on his experiences sitting on the CMC and Arbitration lists.

Final Thoughts: Key Takeaways

The seminar concluded with key takeaways:

• Effective communication among parties and the tribunal.
• A commitment to innovation and new perspectives.
• The significance of early planning and preparedness.
• An emphasis on efficient communication with experts.
• The efficiency and finality of arbitration.

The seminar provided valuable insights into the complex world of arbitration and dispute resolution, highlighting the importance of proper investment structuring, flexible arbitration clauses, and the advantages of effective communication throughout the process. It also underscored the role of mediation and the need for early identification of key issues in disputes. By following these insights, organizations can navigate the intricate world of arbitration more effectively and achieve quicker, more satisfactory resolutions to their disputes.

Rapporteur: Charlie Richards

Doing Evidence in Arbitration Better: Presenting the 2023 Evidence in International Arbitration Report

Hosted by ACICA

Speakers:

• Brenda Horrigan (Independent Arbitrator) (Chair)
• Minoshi De Silva (KWM)
• Victor Ageev (FTI Consulting)
• Kanaga Dharmananda SC (Quayside Chambers)
• Martin Cairns (Sapere Forensic)
• Georgia Quick (Ashurst)

Evidence forms a significant part of any arbitration; indeed, the International Arbitration Report (September 2023) (Report), indicates that evidence plays a vital role in case outcomes. The final ACICA event of Australian Arbitration Week was held at Dexus Place and featured a mixed panel of esteemed arbitrators, experts and counsel – all tasked with addressing the findings of the Report. The panel reflected persistently that the great strength of arbitration is its flexibility and efficiency in comparison to litigation. The difficulty, however, arises in making the most of those advantages. This notion of ensuring that arbitration is a ”smooth” process for witnesses was acknowledged to generally revolve around giving parties a “fair” amount of time so as to not swamp tribunals in memorials, documents and written or oral evidence.

In relation to witnesses, experts or otherwise, perhaps the most significant topic discussed was one regarding the ever-important requirement of empathy. All panel members acknowledged the difficulties associated with providing either oral or written evidence. Minoshi De Silva noted that barriers can include understanding of language, unconscious bias and cultural differences; notwithstanding the stresses of appearing to give oral evidence. This led to a highly interesting discussion pertaining to the honest misinformation that can arise from fallible memory and employing questioning techniques such as leading questions. Victor Ageev concurred, providing anecdotes on the ways in which poor translations can prejudice evidence. As Kanaga Dharmananda expressed, there is no “one size fits all” approach to giving evidence. He went on to discuss document production, and stressed that the three most vital considerations of the necessity, timing and approach to documentary evidence are rarely met unanimously. The panel agreed – particularly with the proposition of panel moderator, Brenda Horrigan, that it is somewhat rare to receive a “useful” document. Sustainability was the final topic of discussion, with panel members all acknowledging that the evidence element of arbitration could be conducted in less wasteful ways. Georgia Quick stated that, fundamentally, this required discipline in questioning whether “x” document needs to be printed, or if “y” person needs to fly overseas to provide oral evidence.

In hearing questions from the audience, the panel also agreed unanimously that diversity in the expert witness field was an area for improvement; however the trends in this space are promising. One suggested method of improving the representation of female expert witnesses was to provide lists of female experts to be considered more strongly by parties.

ACICA would like to thank DEXUS for hosting the event in their beautiful space.

Rapporteur: Charlie Hurst

The Neutral Path: The Past, Present & Future Role of Arbitration in East-West Dispute Settlement

Hosted by Clifford Chance & SCC

Speakers:

• Sam Luttrell, Clifford Chance
• Jake Lowther, Stockholm Chamber of Commerce
• Kate Apostolova, Mayer Brown

The final seminar of Arbitration week focused largely on East-West disputes which have seen a renewal of the dichotomy as a consequence of the Russian invasion of Ukraine. Sam Luttrell, partner at Clifford Chance, preceded the session by highlighting that global politics is currently in a similar dynamic to the cold war, in which arbitration played a critical role in east-west disputes, thus foregrounding the importance of arbitration in years to come.

The discussion then moved on to Jake Lowther from the Stockholm Chamber of Commerce who talked through the SCC Arbitration Institute. He mentioned the Institute was originally established for intra-member pricing disputes, but focus shifted to international disputes due to Sweden’s advantage as a neutral country for East-West arbitrations during the Cold War. Characteristics that make Sweden such a good jurisdiction for international arbitration include:

• The rule of law.
• Independent judiciary,
• Neutral and not corrupt.
• Quick
• Cost efficient.
• Competent local law firms.

However, Jake also noted that challenges for Sweden as the seat for arbitration do exist. Such challenges included over compliance, long proceedings in courts of appeal. The biggest challenge in relation to East-West disputes comes with Sweden abandoning its long tradition of non-military alignment by commencing proceedings to join the NATO Alliance, which may turn away Russian entities or potentially other Eastern aligned countries such as China. The panel noted that the question of neutrality in Sweden is not a problem from a rule of law perspective as well as other aligned countries are also centres for dispute resolution, potentially mitigating any impact to Sweden’s status.

This led to the discussion shifting to how International Arbitration largely arose during the Cold War era via treaties that were method based rather than substance based as they were negotiated through differing political and philosophical persuasions. These treaties largely proved successful based on the method they provided particularly as for the first-time parties such as companies could be the subject of an international dispute.

Kate Apostolova then moved on to discuss current geopolitical tensions and discussing the SCC’s role in future negotiations between NATO Bloc members and Russia. Kate suggested it will likely remain involved in arbitrations because of the history and the successful outcomes of past negotiations particularly during the 1970’s, however noting that joining NATO could be problematic as was seen with the decline in the relationship between Bulgaria and Russia after the former joined NATO. Kate mentioned that competitors such as Singapore could be seen as alternative for East-West disputes, but this has not materialised as of yet, with the panel mentioning that this was expected when Crimea was annexed by Russia but did not materialise.

Moreover, the panel considered the role of arbitration in ending the war in Ukraine. The main role that the panel formulated would be in allowing investors to seek compensation. It was discussed that currently tribunals are seeing Ukrainian investors bringing damages claims against Russian as well as Russian companies who had assets appropriated by Western governments. There will be challenges in enforcing these awards against Russia, however comparison was drawn to that of the enforcement of awards against Argentina which was eventually successful after some years.

Overall the panel brought an interesting perspective on the future of arbitration in relation to current and emerging geo-political trends.

Rapporteur: Edward Hamersley

ACICA Arbitrator Workshop: Enhancing your ACICA Experience

Hosted by ACICA

Speakers:

• Peter Sadler, HFW
• Deborah Tomkinson, ACICA
• Amanda Lees, King & Wood Mallesons
• Erika Williams, ACICA

The ACICA Arbitrator Workshop provided Arbitrators with a workshop style discussion platform to analyse the 2021 edition of the ACICA Rules 2021. The rules revision process featured a primary focus on autonomy and lower administration costs as well as e-arbitration and the integration of technology in the process. The methodology of the rules committee was discussed within the workshop, followed by a discussion of some of the new rules.

Methodology of the Rules Committee:

• Diverse rules committee:
  • There were fresh perspectives, considering international best practice as the committee was made up of practitioners with experience in a multitude of different jurisdictions.
• Examination of other arbitration rules was a heavy focus.
• Consideration was made to third-party funding that was not addressed in the previous iteration.
• Drivers of Change included the following:
  • Time and cost were the driving factor considered by the committee.
  • Old rules underutilized the Secretariat.
    • How the experience of the Secretariat can be drawn on was considered extensively.
    • It was decided that ACICA should remain a light touch institution, but with high oversight. As such, the Executive now has greater powers to move cases along and more oversight of cases.
  • Review of arbitrator fees by ACICA was a large consideration.
  • Parties can still nominate Arbitrators, however ACICA now confirms them, making it easier to handle conflicts of interest.
  • There was a rigorous public consultation process undertaken with arbitration practitioners.

New Rules and Key Amendments:

• Virtual hearings, paperless filing, and electronic execution.
• Expanded scope for consolidation and multi contract arbitrations.
  • The single arbitration under multiple contracts rule was modified. It allows a party to file a single notice, and then file for consolidation at the beginning of the procedure (technically separate arbitrations).
• Effective case management.
• Third-party funding disclosures.
  • Proactive disclosure requirements to manage conflicts of interest (identity of the funders).
  • It is arguable whether this includes insurers, however noticeably a lot of parties are disclosing the involvement of insurers.
• Enhanced oversight of costs.
• Early dismissal procedure.
• Alternative means of dispute resolution.
  • Requires discussion of mediation or other alterative means of resolution. This is often dealt with in the preliminary conference but may be dealt with at various stages of the arbitration.
  • Specific provision about suspending the arbitration to allow ADR.
• Time limits for the delivery of awards.

In addition to these in-depth discussions particular attention was made to constitution of the tribunal and file transfer. This is important because the final award shall be made no later than nine months from the date the file was submitted or no later than three months from the date the arbitral tribunal declares the arbitration proceedings closed, whichever is earlier. It was noted that parties can agree to an extension, but ACICA will not always grant the extension that is asked for if the request for an extension has no reasonable basis.

Some final practical considerations were covered to provide guidance to tribunal in terms of invoicing and payments.

Overall, the session was immensely informative for arbitrators, allowing practitioners get up to date guidance on the application of ACICA’s latest rendition of arbitration rules.

Rapporteur: Edward Hamersley