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The In-House Counsel’s Perspective

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ARBITRATION Conference Report

3 Introduction

4 Panel 1 – Forum selection

5 Panel 2 – Alternative fee arrangements

7 Panel 3 – Where mediation and arbitration intersect

9 Panel 4 – Enforcement of awards

11 Tylney session 1 – Clients, counsel and arbitrators

13 Tylney session 2 – Practice and procedure

15 Tylney session 3 – Orders, awards, enforcement and settlement

17 About the organisers

18 Speaker profiles

Contents

3

Introduction

On 18 March 2016, arbitration experts from around the globe gathered for the 2nd Annual Arbitration Conference: The In-house Counsel’s Perspective, co-organised by ACC Europe, the Swiss Arbitration Association, the Corporate Counsel International Arbitration Group, International Institute for Conflict Prevention and Resolution and sponsored by CMS.

In this report, we summarise the day’s key discussions and examine the opportunities and challenges associated with modern arbitration from the perspective of in-house counsel and industry experts, seeking to identify and assess the tools available to maximise efficiency.

4 | Arbitration conference report

Panel 1Forum selection: How to manage arbitration when your preferred forums are not available given the preferences of the counterparty.

The seat of arbitration is an important factor in any case. Every practitioner will have their preferred seat, but as the Rolling Stones once said ‘You can’t always get what you want.’

One of the big questions of the day was ‘where do you arbitrate?’ The panellists gave their insights into the most popular seats. London, Paris and Singapore were clear frontrunners, with Geneva, Stockholm, Hong Kong, New York, Houston and Zurich also favourable. The Middle East was viewed by some as an unfavourable seat.

The panel looked at the issues that arise when your preferred seat is unavailable, and the ramifications of arbitrating in an unfavourable one.

It was unanimously agreed that the seat of arbitration is critical. Even with favourable governing law, the wrong seat can have disastrous effects on the enforcement of an award. For this reason many companies will turn down transactions where they can’t get fair arbitration provisions.

One of the panellists Richard Hill, General Counsel for Global Litigation at Shell, said: ‘When I started at Shell there were no structured rules as to preferential seats of arbitration. We were arbitrating before 52 institutions in 47 seats.’

Hill highlighted that this wasn’t necessarily a negative point, but it indicated a lack of clear policy direction. He added: ‘Shell now has clear sets of principles and preferences on things like ad-hoc versus institutional arbitration, seats and which preferred institutions and rules.’

The other panellists concurred, indicating that companies are starting to see the importance of guidelines for arbitration.

Northrop Grumman, a leading global security company, take this even further, as Roger Wiltshire, EMEA General Counsel, explained: ‘We have a set of guidelines that

allows us to choose the arbitrator; we don’t want situations where one is thrust upon us.’ Tim Williams, Area Counsel, Middle East and Asia, for Wärtsilä Energy Solutions, a power plant solutions company, said his firm is going down a similar route: ‘We are moving from a less structured approach to firm guidelines that are almost completely binding.’

Finding the right institutionThe trusted institutions were as expected, and include LCIA, ICC, CPR, SIAC, and the ICDR, with local institutions being utilised as needed. Cost structure plays a significant role in the decision. Hill explained: ‘LCIA works well with bigger cases, and the ICC in smaller cases due to their charging structures.’ There was a sense that the ICC expects companies that don’t use hourly rates to prefer their cost structure. However, it was pointed out that charging by a percentage of the value of the case is not necessarily appropriate either. The light touch of institutions like CPR was noted as attractive.

Even if you are in the preferred seat, a smooth transition is not guaranteed. One panellist recalled 17 rounds of pleadings during a German arbitration, demonstrating that tribunals must be robust even in countries with a firm rule of law. The same can be said for countries with less robust legal systems; in China, for example, they prefer short hearings. Although the process may not be as robust, Hill explained that ‘you do not always need a perfect process. One that’s short on bells and whistles might be something you accept quite happily on a commercial basis.’

Williams added: ‘We have seen tribunals which seem well composed, with reasonable nationalities, but have a stray lazy member which skews the proceedings. An imperfect process can be fine, as we are more interested in speed. We don’t need everything in English or to be perfectly documented, but it does have to be fair and effective and closed quickly.’

The ‘midnight clause’Andrew Clarke, General Counsel for oil and gas giant ExxonMobil, when asked about the ‘midnight clause’ nature of arbitration in a contract, pointed out that it is usually added after the commercial team believe they have added all they need to the contract. Given how

An imperfect process can be fine, as we are more interested in speed.

5

Panel 2Alternative fee arrangements for arbitration proceedings.

One of the leading concerns in the arbitration world over the last ten years has been expense, followed closely by speed. Tim Hardy, Partner at CMS, brought these concerns to the forum’s attention from the Queen Mary Studies into Corporate Attitudes and Practices; Corporate Choices in International Arbitration and Improvements and Innovations in International Arbitration. Over the last decade, they have surveyed the arbitration community to discern the ongoing trends in the industry. The surveys indicate that expense and speed are major concerns, which have not been addressed adequately.

Time limits for arbitratorsDespite no ultimate solution to these issues being presented to date, the institutions have certainly made attempts to increase cost and time efficiency. The various bodies have implemented time limits for arbitrators. In 2006 ICSID Rule 46 said that arbitrators should draw up and sign awards within 120 days of closing. Last year the ICC then introduced a new policy which states that awards should be produced within three months in a three man tribunal, and within two months in a one man tribunal. There are also provisions for total fee reduction if arbitrators fail to meet those and further deadlines:

— 3-7 months late incurs a penalty of 5-7%

— 7-10 months late incurs a penalty of 10-20%

— 10 or more months incurs a penalty of 20% or more

Some of the institutions have published statistics on the average time it has taken to produce awards, and Tim Hardy expects that ‘more institutions will publish these statistics as parties want to know how long it’s going to take’.

Hardy said: ‘Parties could manage costs much better if they discussed attitudes and estimates before the arbitration. During the arbitration they will be looking at the behaviour of the opposing party, and lawyers, conduct during the case which will have an impact on costs, especially if said behaviour is deemed to cause a delay.’

Interestingly ICC found that in many arbitrations, where the seat had nothing to do with English law, the arbitrators were following the English rule of cost following the case, even if held in the US.

Kai-Uwe Karl, Global Chief Litigation Counsel – GE Renewable Energy, highlighted that quality is not the main concern in most developed jurisdictions, because as long as ‘you are in a good location you will get a great arbitration.’ The main issue is time and cost. One of the major considerations that will affect both time and cost is the ‘type’ or ‘style’ of arbitration.

critical the clause is to the contract’s life, how do you get your clients to realise the importance of having an enforceable arbitration clause?

According to Wiltshire the most effective methods are to tell them war stories, using real life examples and to get

them involved in mock arbitrations so they understand what they are signing up to. The more clients get involved, the more engaged they will be in ensuring a good clause.

Speakers

Richard Hill - General Counsel, Global Litigation, Shell

Tim Williams - Area Counsel, Middle East and Asia, Wartsila Energy Solutions

Roger Wiltshire - EMEA General Counsel, Northrop Grumman

Parties could manage costs much better if they discussed attitudes and estimates before the arbitration.


Karl explained that when in the planning phase for arbitration, he looks at the different styles and distinguishes between two – civil law type arbitration and common law type arbitration. There are a number of questions to ask when deciding, for example: whether discovery is necessary and what its scope should be; whether to focus on documents or witnesses; and how long you are prepared to take?The suggestion being that a civil law case would typically take less time and cost less. Another consideration from an in-house perspective is whether you could unbundle and in-source a number of the steps in the arbitral process, such as, for example, handling the discussions with the arbitral institution and opposing counsel. The slide on the left illustrates both points.

Hardy further suggested that parties should include time limits for deliberations in the arbitration agreement, and should encourage arbitrators to proactively discuss costs at the CMC. Arbitrators should then require both parties to state their estimates for costs at the outset.

FeesKarl further discussed fee arrangements. The industry still appears to be in its infancy when it comes to developing alternative fee arrangements, including fixed or capped fees, in arbitral proceedings or litigation. From a corporate perspective, it often appears as if you have to re-invent the wheel each time you discuss fee arrangements with law firms. While law firms refer to the same concerns – uncertainty on how proceedings may evolve – there is limited innovation in developing fee arrangements which determine the scope of work and the risk each side should carry. Interestingly, in Karl’s experience law firms in, for example, the Middle East, Pakistan and Sub-Saharan Africa seem less reluctant in agreeing on a fixed fee arrangement for litigation or arbitration than elsewhere. Karl discussed the pictured system for preparing a FFA.

By structuring the scope of work in a form and clearly stating the cost of each task, one can effectively create a fair FFA.

Financing arbitration and litigationThe panel also looked at the trend of litigation financing for arbitration. Michael Redman, Director of Burford Capital, a company that provides financing for litigation and arbitration, explained that the rising popularity of litigation financing has arisen in part due to the cost inconsistencies highlighted by Karl. He said that ‘litigation financing is now part of the conversation, it’s no longer a novelty.’

The reception to litigation financing in an arbitration context appears to be more muted than in other arms of ADR. Redman attributed this to the conservatism of arbitrators, some resorting to labels such as mercantile adventurers. The perception was not based on widespread

Litigation financing is now part of the conversation, it’s no longer a novelty.

7

Panel 3Where mediation and arbitration intersect

The third panel looked at the intersection between mediation and arbitration. The panellists discussed the benefits of mediation, as well as at situations where it may not be the most favourable approach.

Noah Hanft, President & CEO of the CPR Institute, said the organisation has implemented a number of innovative systems to make the arbitration process easier for each party. The first is CPR’s innovative screened selection process, which allows the selection of an arbitrator that is not aware of which side they have been appointed by, thus removing any conflict of interest and helping to ensure an impartial decision.

Following years of big class action lawsuits during his time at MasterCard, Noah became a passionate ADR advocate upon realising how mediation could create win-win situations. He assured the forum that they should not be concerned with mediation being a sign of weakness but, rather a sign of willingness to cooperate with the other side to find the best solution possible.

The panel considered changing corporate views around the ethicality of mediation. Hanft explained that there has been an evolutionary change in culture leading to an overall feeling that disputes are no longer about winning or losing, but about moving the business forward, identifying conflicts early in the process and dealing with them in a more thoughtful manner. In this vein Ulrich Hagel, Head of Claim Governance, Litigation & Procurement Support at Bombardier a leading train manufacturer, quoted Edward A. Dauer: ‘Winning lawsuits is not the goal. Maximising profit and minimising risk is the goal.’

In response to this approach, the panel discussed what it takes to initiate a successful mediation. Gaby Dosanjh-Pahil, Head of Dispute Resolution at utility supplier SSE, said: ‘A good mediation is one that settles, to the point that it will not even enter mediation if there is not a settlement in sight.’ Other panellists noted that, in order to ensure that a mediation is successful, you must have an open minded mediator. Noah Hanft commented: ‘Everyone thinks they’re open minded, but in reality they’ve a fixed view of events. A good mediator should drive both parties to be open minded.’

use however. The Queen Mary study pointed out that 51% of respondents had not used finance, and a further 9% were not even aware that it was available. On the other hand, 71% of respondents thought that financing should be further regulated. Of those that had used it, 51% viewed it positively.

The controversy surrounding litigation funding seems to arise from costs, liability for adverse costs and whether the funding party should be disclosed in the course of the proceedings. The concern surrounding disclosure is often a conflict of interest issue. However, Redman said: ‘While a nuanced difference, we don’t have an economic interest in the outcome, we have a direct

financial interest in the award of damages.’He further pointed out, that the average cost of an ICSID case is $5.5m, which sets a high bar for the entry of smaller firms to the market. Litigation financing allows these players to enter the market, fuelling competition and diversity.

Speakers

Tim Hardy - CMS

Michael Redman - Director, Burford Capital

Kai-Uwe Karl - Global Chief Litigation Counsel GE Renewable Energy


Roland Schroeder, Conference Chair, CCIAG Chair and Global Executive Litigation Counsel, Corporate at energy conglomerate General Electric, shared an example of a successful mediation with the forum. He said: ‘During a $20m claim, and an acrimonious relationship with the supplier, we began the mediation process with a skilled mediator. The process went smoothly, and the mediator managed to broker a deal that restructured the business relationship into something that was beneficial to both sides. This was an outcome that could never have been achieved with litigation or arbitration.’

Maintaining flexibilityThe panel then discussed situations when mediation reaches a breaking point, explaining that in that case a good mediator should do everything in their power to ensure that a dialogue is kept open.

The breaking point comes when one party is no longer willing to negotiate. This is most common when a party has no intention of settling, and is only there due to contractual obligations.

However, with the growth of mediation as a mutually beneficial solution, the panel raised concern over a culture in which people no longer believe that a contract must be adhered to. If two parties reach a disagreement, they can take it to mediation and pay less than the contract demands.

Hagel explained that for this reason Bombardier advocate the use of different ADR processes where appropriate. ‘There isn’t a single answer to whether mediation is better or not; you must look at the interest of the parties and then judge the best option,’ he said.

He went on to explain: ‘In Germany we have a B2B roundtable of 50-60 companies that are building a matrix of 17 processes that are used around Europe. With this matrix we can compare the options and see which process is best for each situation. We are building a better tool for deciding which ADR process to use.’

On the topic of mixing processes, there was agreement that the mediation process could and should be allowed to be started at any time during proceedings. The opposite was also true; Dosanjh-Pahil said that SSE allows a move to litigation or arbitration if the parties are too far apart, but it doesn’t stop them from circling back to mediation.

Speakers

Roland Schroeder - Chair, CCIAG and Global Executive Litigation Counsel, Corporate, GE

Gaby Dosanjh-Pahil - Head of Dispute Resolution, SSE

Noah Hanft - President and CEO, International Institute for Conflict Prevention and Resolution (ex GC Mastercard)

Ulrich Hagel - Head of Claim Governance, Litigation & Procurement Support, Bombardier

There isn’t a single answer to whether mediation is better or not; you must look at the interest of the parties and then judge the best option.

Winning lawsuits is not the goal. Maximising profit and minimising risk is the goal.

9

Panel 4Enforcement of awards

Guy Pendell, Head of International Arbitration at CMS UK, kicked off the panel on ‘Enforcement of awards’. He brought up the key considerations in deciding where to enforce. Firstly, one must look at where the assets are held and establish whether the jurisdiction is a signatory to the New York Convention (NYC). Second, one must establish whether they have a reciprocity reservation, albeit increasingly less of a concern as so many are signatories to the NYC. Third, it must be ascertained whether they have a commercial reservation, as 25-50% of signatories have made it part of their contract. Finally, the length of time that the jurisdiction has been a member of the NYC will make a difference to the extent to which there is an imbedded set of laws and principles, and the practice and experience of judges to deal with applications to enforce awards.

Difficulties of enforcementThese considerations are only part of the process. There is also the issue of limitation periods that are relevant to the enforcement of awards, which ranges between two and 12 years. In addition, challenges arise where a party is determined to avoid the enforcement of an award. It is likely that while one party is trying to enforce an award in one or more states, the debtor will try to set aside assets in the seat of arbitration and bring attempts to resist.

Most awards are complied with voluntarily, but the challenge is not whether you succeed, but how long it takes to enforce it and how much can be done by the debtor in that period. Natalia Petrik, Legal Counsel, Arbitration Institute of the Stockholm Chamber of Commerce, explained: ‘According to the Queen Mary Enforcement Study of 2008 only 11% of awards result in recognition and enforcement proceedings, and in most cases enforcement is achieved within one year.’

The majority of difficulties in enforcement hinge on the lack of assets and unfriendliness of courts in the place of enforcement, rather than irregularities in the award.

There are various legal grounds for resisting enforcement of an arbitral award under the NYC, as expressed below:

The five grounds on the left can only be invoked by the award debtor seeking to avoid. The two on the right can be invoked on the courts own initiative.

One exception to the grounds for refusal is public policy, described by Pendell as a ‘nebulous concept’. Public policy definitions change according to jurisdiction; in Austria it is described as ‘fundamental values of the Austrian legal system’ whereas Australia describes it as ‘fundamental norms of justice and fairness’. In essence, public policy may be acting against the jurisdiction’s economic interests, or may affect business in said jurisdiction.

According to an IBA Report on Public Policy in 2015, public policy is often invoked but rarely successful and is not normally defined by a statute - it is up to the judge to decide.

The IBA committee were able to reach some findings from the various country representatives of successful grounds upon which public policy exceptions are invoked. The diagram below illustrates the grounds and whether they are universally accepted, or generally accepted:

According to the Queen Mary Enforcement Study of 2008 only 11% of awards result in recognition and enforcement proceedings, and in most cases enforcement is achieved within one year.


When it then comes to enforcing awards, China, India and Russia in particular, are perceived as difficult jurisdictions. Parties must be aware of local statutory restrictions. In China, for example, there is a time limit for enforcement applications of two years from the date of the performance period, or from the date of the award. In Russia there is a limited scope of arbitrability; certain corporate disputes with Russian entities can only be arbitrated in Russia, and only by the licensed arbitral institutions in accordance with the new law in force from 1 September 2016.

David Roney, Partner at law firm Sidley Austin, next took the forum through various strategies for enforcing arbitral awards that have been wrongfully set aside or refused enforcement. Most often, this occurs when the losing party is a state, a state-owned enterprise or other party likely to benefit unfairly from a home court advantage.

StrategiesWhere an arbitral award has been wrongfully set aside at the place of arbitration, it may still be possible to enforce the award in other jurisdictions. Some enforcement courts focus on whether the judgment setting aside the award should be recognised based on the rules applicable to recognition and enforcement of foreign judgments. This approach was taken by the Dutch and English courts in Yukos Capital SARL v OJSC Rosneft Oil Company. The Dutch courts were willing to enforce a series of arbitral awards set aside in Russia

because the Russian set aside judgements were likely ‘partial and subjective.’ In considering whether to enforce interest owing on the same awards, the English High Court found that it was not bound to recognise the Russian set-aside judgments if they offended against ‘basic principles of honesty, natural justice and domestic concepts of public policy.’ A similar approach has been taken in US decisions such as Chromalloy and PEMEX. By contrast, French and Belgian courts do not even consider the set-aside judgments, and focus solely on whether the award violates French or Belgian arbitration law. If not, these courts will enforce a set-aside award. From a practical perspective, it is therefore necessary to consider where the award debtor has assets and determine whether any of those countries is open to enforcing an award that has been set aside.

Another strategy for enforcing awards wrongfully set aside or refused enforcement is to use investment treaties. Under bilateral or multilateral investment treaties, an award creditor may be able to bring a claim directly against the state whose courts interfered with the award. In cases such as Saipem v Bangladesh and White Industries v India, tribunals have found that, while arbitral awards are not investments in and of themselves, they are the ‘crystallization’ of the underlying contractual rights which resulted in the award and thus qualify for protection. Investment treaty awards have been secured against states whose courts have wrongfully set aside or refused enforcement of awards based on claims for indirect expropriation in Saipem, breach of fair and equitable treatment in ATA v Jordan and breach of an ‘effective means’ clause in White Industries, among others.

Public policy definitions change according to jurisdiction; in Austria it is described as ‘fundamental values of the Austrian legal system’ whereas Australia describes it as ‘fundamental norms of justice and fairness.

Where an arbitral award has been wrongfully set aside at the place of arbitration, it may still be possible to enforce the award in other jurisdictions.

Another strategy for enforcing awards wrongfully set aside or refused enforcement is to use investment treaties.

11

Tylney session 1Clients, counsel and arbitrators

Choosing arbitratorsThe traditional method of choosing arbitrators involves the claimant and the defendant each appointing one and then the arbitrators appoint the president of the tribunal. There is a debate as to whether the parties should make the appointments, or whether it should be left to the institutional bodies.

The room was asked whether they preferred to appoint their own arbitrator, with the advantages it entails – perceived or real – or should it be left to the arbitral institution?

The general consensus was that institutions should not choose the arbitrator. One respondent made the point that by choosing the arbitrator it gives them a factor of control over the situation. By appointing a trusted arbitrator you ensure that other arbitrators will act appropriately. A second respondent said the exercise of appointment lets the business feel drawn into the process.

Those in favour of institutions picking an arbitrator pointed to the benefit of speed. By choosing the arbitrator for the parties, institutions can expedite the checking of conflicts, disclosure procedure, availability, rates, and other steps that need to be taken – to within three weeks.

The room was concerned at institutions’ lack of transparency and the issue of client trust. One respondent raised concerns that you may happily appoint an institution to choose an arbitrator today, but the case may not come to light for 7-10 years by which time you may not know who is in charge. The same respondent raised the question: what are the internal processes by which an institution makes their decision?

Speakers

Natalia Petrik - Senior Legal Counsel, The Arbitration Institute of the Stockholm Guy Pendell - Partner, CMS

David Roney - Partner, Sidley Austin

Roney concluded by highlighting practical steps that can be taken to maximise the prospects for enforcing your award. First, these problem cases reinforce the importance of choosing a neutral and well-established place of arbitration at the outset. Second, in view of decisions such Chromalloy, it can be important to agree in the arbitration clause that any award is final and binding, and not subject to court review. Third, consider from the outset where setting aside and enforcement proceedings are likely to take place, and structure your investment to obtain investment treaty protection. Finally, once you obtain a favourable award, consider again whether to restructure your investment to obtain such protection.

Arbitration is getting slower, more complicated and more costly. While new rules are created to combat this trend, they often make things more uncertain, undermining the good intentions.


One answer would be to refrain from making the decision a clause, but instead to approach an institution when the case arises. The institution can then find the appropriate, qualified arbitrator for the case. By leaving the process to the institutions you can not only ensure a swift appointment, but also give young arbitrators on their roster a chance when smaller cases arise.Another issue with institutionally appointed arbitrators is when the other party self-appoints, it is possible that they could appoint an arbitrator that will slow down proceedings, such as an ex-judge. The answer would be for everyone to give up the right to appointment – but that is unlikely to happen in the foreseeable future.

On efficiency in arbitrationModerator Andrew Clarke, General Counsel for ExxonMobil UK, asked attendees to consider who is responsible for the current state of arbitration. What can clients and their in-house advisers, and arbitrators do to reduce costs, improve efficiency and prevent delay? Arbitration is getting slower, more complicated and more costly. While new rules are created to combat this trend, they often make things more uncertain, undermining the good intentions. In-house counsel should be actively engaging with the arbitration world to try and change the system. In-house lawyers should manage the process more effectively rather than just turning over the dispute to external counsel, with the result that the issues, time and documentation expand exponentially, with a commensurate increase in the overall cost.

One respondent mentioned the lack of transparency regarding time taken by arbitrators to issue awards. The inability to give time estimates for producing awards harks back to the days when law firms were unable to give fixed fees for litigation. It may be difficult, and there may be unforeseen circumstances, but surely arbitrators can give some estimates so the parties know where they stand? One potential solution during the first procedural hearing might be for parties to ask arbitrators to set aside three weeks after the final hearing to write the award – committing to pay for this if the time couldn’t be used elsewhere, even if the case settles.

It was suggested that during the appointment a party could agree to pay an arbitrator for three weeks after the final hearing to ensure that they write the award. The payment could be promised, even if the case settles.

On summary judgmentsThe question of whether in-house counsel would like to have summary judgments in their procedure was raised by one respondent. Several years ago there was a review of 50 ICC procedural orders, of which only two took the plunge of introducing a summary judgment type procedure.

One member of the forum hoped for a dispositive motion procedure, as it allows an invaluable insight into the thinking of the arbitrators and informs you of how they are approaching your case.

Another respondent agreed and said they push for panels to provide summaries on disposition as there is sometimes one key issue that may halt the parties coming to a resolution, and if it takes two years to reach that issue then the entire proceeding may be wasted. They acknowledged that introducing such options may lead to the US style of procedure filing, but suggested that parties use a two page document to try and convince arbitrators rather than making it a rule.

On resistance to arbitrationIn continental Europe, universities only teach the law, classic law, rules and exceptions. There is hardly a mention of arbitration, and never mediation. A respondent encouraged all those in the room to register for a class on mediation, citing the lack of education on the subject as the reason for resistance. ‘It is the duty of every in-house counsel, arbitrator and private practitioner to learn how to use those tools to resolve disputes.’

It is the duty of every in-house counsel, arbitrator and private practitioner to learn how to use those tools to resolve disputes.

13

Tylney session 2Practice and procedure

On arbitral secretariesThe topic of arbitral secretaries is certainly divisive. In light of recent proliferation of institutional guidelines on the topic, the question was raised as to whether they should still be used.

One arbitrator mentioned that secretaries are very useful and that the use of secretaries contributes to the widely recognised need to minimise the costs and duration of arbitral proceedings. Activities such as drafting the first pages of the award listing the parties and arbitrators and their contact details, copying the arbitration clause, summarising the procedure, creating the canvat of the award, can all be delegated to young lawyers without affecting the analysis of the evidence or of the merits of the case, which is and must remain the duty and sole responsibility of the arbitrators.

If the respondent in an arbitration has difficulty getting the arbitrators to issue orders, the secretary could prove useful in issuing immediate responses, letting the parties know someone is dealing with the issues and encouraging the arbitrators to get things done.

Several members of the forum had served as tribunal secretaries. One described it as the ‘best experience of their career’. Acting as tribunal secretaries had given these respondents the experience needed to progress as arbitrators.

They also proposed that to remove the need for tribunal secretaries, parties should give young arbitrators, who will not be subject to the same time restraints as experienced arbitrators, a chance to act.

One suggestion was that if an arbitrator is considering using a secretary it should disclose it to each party prior to accepting the appointment. Another suggestion was that parties should consider posing a series of questions to the arbitrators before appointing them, discerning how many cases they were working on, whether they intend to use a secretary, whether they would allow the parties to appoint a secretary, and how long it would take to produce an award.

On multi-tiered clausesA question was raised as to the usefulness of multi-tiered clauses, specifically those calling for a period of negotiation or mediation before commencing arbitration.

It was noted that before commencing arbitration, every lawyer has a duty to the client to explore whether other mechanisms would help resolve the dispute more cost efficiently, regardless of whether they are compelled to do so by the dispute resolution clause in the contract.

Multi-tiered clauses can cause problems of interpretation or application where one method is given as a precondition to a subsequent method, such as adjudication being a prerequisite to arbitration.

The current trend, at least in Europe, is that when drafting a contract, the parties should not precondition the ultimate forum for dispute resolution by another step.

Originally multi-tiered clauses were used as a method of encouraging or forcing ADR, according to moderator Caroline Ming, Executive Director & General Counsel, Swiss Chambers Arbitration Institution. She said however that: ‘currently there seems to be a new consensus that mediation should not be a prerequisite; it should be in the clause as an option that is to be considered at any time and every stage before and during proceedings. It can prove useful to initiate the arbitration proceeding first to avoid time bar issues, losses of time, and to push parties to proceed to a real analysis of the evidence and arguments available and on the merits of their case. Then mediation can be used to negotiate solutions to all or part of the issues and/or to negotiate the way forward efficiently. If a settlement is reached, it can be ratified by the arbitral tribunal in an award on consent which is enforceable in accordance with the New York Convention like any other award. If that does not work the parties can always and any time continue or return to arbitration and wait for the arbitrator’s decision on the merits in the award.’

On case management conferencesModerator Elliott Geisinger, President of the Swiss Arbitration Association and head of the International Arbitration Practice at Schellenberg Wittmer, raised the issue of case management conferences, and argued that they should not be used in the singular – rather there should be multiple CMCs throughout the arbitration. He suggested that the former occurs when the tribunal still knows little about the case. Deeper into proceedings, there should be at least a second point whereby the tribunal discusses their understanding with the

Several members of the forum had served as tribunal secretaries. One described it as the ‘best experience of their career’.


claimants, ensuring that there is no confusion later. He added that these case management conferences should not be confused with meetings at which the arbitral tribunal attempts to foster a settlement by expressing tentative views on the merits of the case – this is a completely different exercise that can be done only with the prior consent of all parties.

There was no opposition to this suggestion, with one participant advocating to have it added to the arbitration rules.

On document-only casesThe benefit of a document-only case is that it can be very time and hence cost efficient. Commodity traders for instance are used to proceeding on a document only basis: transactions with Letters of Credit are document-only and it works very well in the vast majority of the millions of transactions each year. This process may be suitable if you know you are likely to need a very quick decision. Caroline Ming discussed the service provided by the Swiss Chambers’ Arbitration Institution (SCAI) which allows the parties to choose various ways of speeding up proceedings. An automated multiple choice arbitration clause is available on the SCAI’s website, which then produces a clause incorporating these methods, which can be entered into a contract or sent by e-mail.

In B2B disputes with long term contracts, documents-only can be the best option, one participant remarked, but they only work when both parties agree. Another situation in which documents-only is useful is in a default situation, where a claim is made and the respondent doesn’t take part.

There was however a counter point to documents-only. A participant reminded the room that dispute resolution is a human process and in complex, larger cases, being able to see the people involved is the only way to see the real underlying problems between parties, and personalities.

Caroline Ming reminded the audience that parties are always allowed to meet at any time to negotiate or to start mediation proceedings.

On the choice between one arbitrator and threeThe discussion moved to the value at which you would apply for a single arbitrator, rather than a three person tribunal.

In the cases submitted to SCAI and the Swiss Rules, anything below 1million Swiss Francs is as a rule submitted to a single arbitrator to be dealt with in six months (under the so-called ‘expedited procedure’) even if the arbitration clause provided for three arbitrators. Caroline Ming reminded the audience that the Swiss love to create and manufacture watches and that it is in the Swiss people’s DNA that ‘time is of essence’. Contrary to some other institutions, the Swiss Chambers’ Arbitration Institution is thus very strict on deadlines and only grants very short extensions, if any.

There was consensus that there isn’t a magic number attached to the choice of arbitral tribunal, rather you should look at cost and efficiency.

Ultimately it is not a question of who gives the guidelines, who should enforce the time limits, and who is responsible for what. It is the responsibility of everyone to better the procedure and increase efficiency.

In B2B disputes with long term contracts, documents-only can be the best option, one participant remarked, but they only work when both parties agree.

There was consensus that there isn’t a magic number attached to the choice of arbitral tribunal, rather you should look at cost and efficiency.

15

Tylney session 3Orders, awards, enforcement and settlement

On freezing ordersOne participant of the forum asked how frequently parties/counsel commence arbitration without having obtained some form of freezing assets to ensure the award will be capable of enforcement.

A participant commented that in some circumstances they will look at assets before going to a tribunal, but the purpose of commencing arbitration isn’t always to finish the process. Sometimes the objective is to bring about a settlement or renegotiation of a long-term contract.

Another example where it might not be practical to pursue a freezing order, would be counterparty dependent. You may have a commercial claim under a joint operating agreement, in which case the counterparty might understand the commencement of private arbitration, but publicly pursuing a freezing order could be perceived as hostile.

Regarding freezing orders, one participant of the forum suggested that by pursuing arbitration or mediation the counterparty may believe you are backing down, but by freezing assets you let them know you’re serious.

On voluntary compliance or disregard for arbitral tribunalsWhat does the tribunal do when parties refuse to comply with or ignore orders of the tribunal? What are the consequences?

This raises two points. One is the cost consequences of a party engaging in unethical behaviour, and the second is how to respond to a party who refuses to produce documents.

The tribunal should infer that unproduced documents would be adverse to the interests of that party, and failing to give full disclosure is a defence tactic to avoid the adverse effects disclosure would have. When asked how many people had seen a tribunal make those inferences and reflect them in an award, there was only one response. It was suggested that perhaps tribunals are afraid of using their powers to sanction clear breaches of disclosure, as it may reduce their chances of being selected as an arbitrator in subsequent similar cases.

On the process of scrutiny, or review of awards?Lawyers get caught up in principled matters relating to whether it’s appropriate for arbitrators words to be adjusted or edited or reviewed by an institution. In-house counsel on the other hand would be supportive, if it helped to avoid pathological awards.

In one instance the ICC mistakenly used the wrong denomination on an award. The ICC had to send the award to the court to be changed, but it took weeks to get it updated as the members of the court were on annual leave.

A representative of an institution said they do not have to review awards in accordance with their rules, but they do offer it as a service to the tribunal before they render the awards. This is to avoid tribunals making formal mistakes on figures, or application of VAT in jurisdictions that they are unfamiliar with. When looking at drafts of awards the institution will spend little time, and will not extend the deadline to allow for it.

Another point raised was that in the vast majority of cases the tribunal review should be sufficient. Only in certain institutions, where a large number of sole arbitrator awards are made can the value be justified.

On appellate processesModerator John Lowe, Former President of the Association of Corporate Counsel Europe, explained that an often cited criticism of the arbitration process is the lack of appellate clauses. The ICDR has recently introduced an opt-in to an arbitral appeal structure, the so called ‘Optional Appellate Arbitration Rule’. He questioned whether people found it a favourable change to the rules or whether it is unnecessary and mitigates against the advantages of arbitration.

It was suggested that perhaps tribunals are afraid of using their powers to sanction clear breaches of disclosure, as it may reduce their chances of being selected as an arbitrator in subsequent similar cases.


CPR was the first institution to introduce an appeals process. However it is rarely used due to clients valuing the finality that arbitration brings. The general response being that there are situations where it has worked well, but only as an opt-in – not a default.

On the role of arbitratorsThe forum was asked about the role of arbitrators with respect to raising or promoting settlement. What is acceptable, what is beyond the bounds of being acceptable, and should they even be discussing the idea of settlement with clients?

CPR’s rules encourage arbitrators to be aware of settlements during proceedings. The settlement rate of CPR cases is roughly 50%.

The ICC rules also allow the possibility of an arbitrator raising settlement as a case management technique. This of course changes based on the legal background of the arbitrator. A German practitioner would be more likely to raise the idea than a French or English practitioner.

One participant was initially uncomfortable with the idea of raising settlement as a possibility, but decided that as long as the settlement idea was mentioned at the beginning of the case he wouldn’t feel uncomfortable. Some participants were against the idea of arbitrators raising settlement without first seeking consent from both parties, while others said that if you wish to raise settlement you should only do so without being opinionated.

... an often cited criticism of the arbitration process is the lack of appellate clauses.

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About the organisers

ACC EuropeACC Europe serves in-house attorneys in Europe through networking, knowledge sharing, continuing legal education and advocacy on behalf of the in-house profession. ACC Europe is a chapter of the Association of Corporate Counsel, the premier association for in-house counsel. For more information on ACC Europe’s activities, please contact the chapter administrator at [email protected]. Website: www.acc.com.

ASA – Swiss Arbitration AssociationThe Swiss Arbitration Association (ASA) has over 1200 members, practitioners and academics engaged and/or interested in domestic and international arbitration, from Switzerland and abroad. ASA contributes to the development of arbitration law and practice through regular conferences and workshops, including this Annual Conference; the Arbitration Practice Seminar; ASA Local Group meetings; ASA below 40 events for young practitioners, and the publication of the ASA Bulletin, a renowned arbitration quarterly, and of the ASA Special Series. For more information and membership enquiries, see www.arbitration-ch.org or contact Alexander McLin, Executive Director, at [email protected].

CCIAG – Corporate Counsel International Arbitration GroupThe Corporate Counsel International Arbitration Group (CCIAG) was registered in 2009 in order to provide a focal point for discussion among corporate counsels actively involved in international arbitration and other forms of alternative dispute resolution. The current membership is comprised of corporate counsels from more than 90 multinational companies. The CCIAG is a non-profit organisation and has no connections with any law firm or arbitral institution. Simply put, the CCIAG is the voice of users. Website: www.cciag.com.

CPR – International Institute for Conflict Prevention & ResolutionCPR is an independent non-profit organisation that helps global businesses prevent and resolve commercial disputes effectively and efficiently. Its members include corporations and law firms, academic and government institutions, leading mediators and arbitrators. CPR is: (1) a thought leader, driving a global dispute resolution culture; (2) a developer of cutting-edge tools and resources, powered by the collective innovation of its membership; and (3) an ADR provider offering innovative, practical arbitration rules, mediation and other dispute resolution procedures, and neutrals worldwide. Website: www.cpradr.org/Home.aspx.

CMS CMS provides clients with specialist, business-focused advice in law and tax matters. Our 3,000 legal professionals including 600 disputes lawyers are spread across 19 practice and sector groups and 34 countries. We stand apart through our deep commitment to understanding our clients’ business and the sectors and countries in which we operate. From major multinationals and mid-caps to enterprising start-ups, we provide the technical rigour, strategic excellence and long-term partnership to keep clients ahead whatever their chosen markets. Website: www.cms-cmck.com.


Speaker profiles

Conference chair

Roland Schroeder - Chair, CCIAG and Global Executive Litigation Counsel, Corporate, GERoland is a founding member and Chairman of CCIAG and a member of the Board of Directors of the International Mediation Institute. He has previously served on the ICC Commission on Arbitration, on the Executive Committee of the International Institute for Conflict Prevention & Resolution, as Chair of the Corporate Counsel subcommittee of the USCIB, and as the Corporate Counsel liaison to the IBA mediation committee.

In his role as Global Executive Litigation Counsel, Corporate, GE his responsibilities include the management of US and international litigation and compliance risk, ADR, and the implementation of company-wide legal policy in these and other areas.

Speakers & moderators

Olivier André - Vice-President, International and Dispute Resolution Services, CPR InstituteOlivier is responsible for CPR’s international activities, as well as international arbitration and mediation matters which are brought before CPR pursuant to its rules. He is involved in all aspects of the proceedings, including neutral selection, challenges, clause drafting assistance and procedural questions. Olivier is also responsible for Y-ADR – a program for young international dispute resolution practitioners.

He is a member of CPR’s European Advisory Board and of CRP’s Arbitration Committee, a member of the International Commercial Disputes Committee and an affiliate member of the Arbitration Committee of the New York City Bar Association. He started his career at Shearman & Sterling L.L.P. and at the ICC Court of International Arbitration in Paris.

Andrew Clarke - General Counsel, ExxonMobil UK Andrew is the GC of ExxonMobil International Limited based in the UK where we oversees a legal department with regional support responsibilities for the company and its affiliates. Educated at Magdalen College School in Oxford, Stowe School, Corpus Christi College in Cambridge and the Council of Legal Education in London; Andrew was admitted to Middle Temple in 1981 and practises as an employed barrister. He has been with ExxonMobil since 1987 and has spent 16 years in overseas assignments in Indonesia, Turkey, America, Singapore and Qatar.

Andrew is a bencher of Middle Temple, a member of the Governing Board of the ICCA, Past Chair of the Corporate Counsels’ International Arbitration Group, a member of the Advisory Council to the Centre of Commercial Law Studies at Queen Mary University of London and Chair of the working group for the new Energy and Natural Resources Law Institute. He is also on the International Advisory Board of the Turkish Commercial Law Review.

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Gaby Dosanjh-Pahil - Head of Dispute Resolution, SSEGaby is Head of Dispute Resolution, at SSE PLC, leading the group’s Litigation and Construction teams. As well as managing a busy team of litigators, claims handlers and construction lawyers, she leads sensitive internal investigations and provides strategic advice to executive and other members of the senior management team at SSE. Gaby joined SSE as a legal advisor in 2002 before which she was a tenant at Victoria Chambers after completing her pupillage at 187 Fleet Street. Gaby was called to the Bar in 1998. She studied Law at the University of Central England, during which she worked at the Public Defender’s Office in Miami assisting lawyers with defendants who were facing the death penalty. Gaby is an associate member of the Chartered Institute of Arbitrators and the company secretary for Greater Gabbard Offshore Winds Ltd.

Elliott Geisinger - President, Swiss Arbitration Association Based in Geneva, Elliott heads Schellenberg Wittmer’s International Arbitration Group. He has acted as counsel and arbitrator in complex commercial disputes involving international construction contracts, consortia and joint venture agreements, sponsorship contracts, sales and distribution contracts, and consultancy contracts.

He has represented clients in arbitration related court proceedings, and several of his cases have been reported on in the official collection of Swiss Supreme Court cases and in arbitration journals. A specialist in large-scale contract management construction projects is he has also advised Swiss corporations in investment disputes.

Elliott has authored and co-authored several publications in the fields of international arbitration and private international law.

Alessandro Galtieri, Legal Director - Corporate Law and Data Protection, Colt Technology ServicesAlessandro is Legal Director, Corporate Law and Data Protection at Colt Technology Services. He has extensive experience in the high-tech space, having held roles at Hexagon AB, as well as at the European Space Agency and Interoute Communications. Alessandro started his career in private practice at Studio Legale Tonucci and is an Italian Avvocato, a Solicitor of the Supreme Court of England and Wales and a Chartered Company Secretary (ACIS). He is UK Country Representative for the ACC.

He also serves on the Technology and Law Reference Group of the Law Society of England and Wales, which develops the Society’s policy on electronic law, and provides guidance on the impact of new technologies on the legal profession.


Ulrich Hagel - Head of Claim Governance, Litigation & Procurement Support, Bombardier TransportationUlrich studied Law and Business Administration at the University of Bayreuth. After working as Attorney at Law in Stuttgart, he joined Bombardier Transportation. As Head of Claim Governance, Litigation & Procurement Suport, he works on conflict management processes and tools and leads complex disputes in negotiations, ADR-processes, arbitration and litigation.

He has published articles on Conflict Management, Contract Management and Compliance, and is co-editor of the German Arbitration Journal (SchiedsVZ), founding member of the Round Table Mediation and Conflict Management of the German Industry (RTMKM), a member of several advisory boards (DIS, CLP, Anwalt Spiegel, Dispute Resolution) and Academic Director at the Dresden International University (DIU) for ‘International Commercial & Contract Management’.

Richard Hill - General Counsel, Global Litigation, ShellRichard leads Shell’s large international litigation, arbitration and dispute resolution team. Richard is a Non-Executive Director of the LCIA and of the US Chamber of Commerce Institute for Legal Reform, a member of the ICC Commission on Arbitration and a Fellow of the Australian Centre for International Commercial Arbitration.

He has written several books and articles in the field of international dispute resolution including The Leading Arbitrators’ Guide to International Arbitration.

A Cambridge graduate, Richard practiced first as a Barrister. He later re-qualified as a Solicitor-Advocate and served as arbitrator in Hong Kong and Singapore, in addition to his work as counsel and advocate.

Noah Hanft - President and CEO, International Institute for Conflict Prevention and Resolution (ex GC Mastercard)President and CEO of the International Institute for Conflict Prevention and Resolution (CPR), Noah previously served as General Counsel and Chief Franchise Officer for MasterCard, where he was responsible for overseeing legal and regulatory affairs, public policy and compliance. While at MasterCard, he spearheaded the successful resolution of major litigations through mediated settlements. He currently serves on the boards of the Legal Aid Society and the Network for Teaching Entrepreneurship (NFTE) and is a member of the Council on Foreign Relations. Noah has a LL.M. from NYU School of Law, a J.D. from Brooklyn Law School, and a B.A. from American University.

Tim Hardy - Partner, CMSTim Hardy leads CMS’ Commercial Litigation team in London. His current cases include an investment treaty arbitration under the ICSID Additional Facility and opposing government expropriation of foreign investments in three jurisdictions.

Tim is a Fellow of the Chartered Institute of Arbitrators, a member of the Institute’s Board of Management and Chair of its Practice & Standards Committee, which wrote the Institute’s Arbitration Rules 2015 and is updating its Arbitration Practice Guidelines. Tim also sits on CPR’s European Advisory Board and LexisNexis’ dispute resolution editorial board. He is a member of the LCIA, the ICC and CEDR’s Select Panel of Mediators. He accepts appointments as arbitrator and mediator. He is also a Solicitor-Advocate (Higher Courts Civil).

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Caroline Ming - Executive Director & General Counsel, Swiss Chambers Arbitration InstitutionBased in Zurich, Caroline is a Swiss and New York qualified lawyer. She first worked in major Swiss business law firms in Geneva and Zurich as an associate, then held various positions at the SGS Group world headquarters before joining the Swiss Chambers Arbitration Institution (SCAI) as Executive Director & General Counsel. She has spoken at conferences and academic programmes on the role of the in-house counsel in dispute resolution processes and on the efficient use of arbitration and mediation as complementary tools. Caroline is a member of the board of a hotel management group, acts as co-President of the Association of International Business Lawyers in Geneva and is the Country Representative for Switzerland of the ACC Europe.

Kai-Uwe Karl – Global Chief Litigation Council - GE Renewable EnergyKai-Uwe joined General Electric’s Oil & Gas business in 2008. He represents his division in disputes world-wide, including in negotiations, mediation, arbitration and litigation. He also leads policy initiatives aimed at managing and reducing the risks of disputes.

He spent 6 years with Cleary, Gottlieb, Steen & Hamilton in Brussels, where he represented clients in disputes before the European Courts, the European Commission and national regulators. His practice included advising multinational companies and sovereign clients in European competition, state aid law and general EC law.

Kai-Uwe graduated the University of Tübingen with a J.D. degree in 1997 following which he lectured in civil, commercial and corporate law at the University of Tübingen, and clerked at the regional court of Stuttgart. He is a member of the Frankfurt bar and holds a PhD in commercial law.

John Lowe - Former President ACC Europe, Arbitrator and MediatorJohn Lowe has over 20 years’ experience in-house and has recently opened an arbitration and mediation practice. While practicing in-house he was active with the Association of Corporate Counsel Europe, serving as President and Treasurer.

John was General Counsel and Director of Communications at Qioptic, a privately-owned Luxembourg company involved in the development and manufacture of precision photonic products. He previously acted as Of Counsel at Orrick, Herrington and Sutcliffe in the Paris corporate department and Assistant General Counsel at Alcatel (now Nokia). He is experienced in a variety of specialties including dispute resolution, mergers and acquisitions, compliance programs, security regulation and complex commercial transactions.

Guy Pendell - Partner, CMSGuy Pendell is head of CMS’ UK International Arbitration practice and a solicitor advocate who regularly appears for clients in international arbitration. He sits as an arbitrator in ICC and LCIA arbitrations. His focus is complex contractual disputes for major corporates.

Guy has handled numerous disputes involving foreign legal systems and substantive laws. Guy is a member of, the LCIA, ICC, IBA and the Commercial Litigators Forum. He was appointed to the faculty teaching at the Foundation for International Arbitration Advocacy workshop in Washington DC in 2015. He has been recognized in the directories as a Leading Individual for both international arbitration and litigation. He is also listed in Who’s Who Legal – International Arbitration.


David Roney - Partner, Sidley AustinDavid is a partner in Sidley Austin’s international arbitration practice has more than 20 years of experience as an advocate in a broad range of complex disputes around the world. He has acted as counsel before international arbitral tribunals in commercial and investment disputes relating to many different sectors and activities, including construction, infrastructure, energy, engineering, technology, intellectual property, licensing, manufacturing, distribution, M&A transactions and joint ventures. These arbitrations have involved many major international arbitral institutions, a host of different applicable laws, and places ranging from London to Singapore.

David has served as chairman, sole arbitrator and co-arbitrator in numerous international arbitrations. He features prominently in the international arbitration rankings of the leading bar publications.

Natalia Petrik - Senior Legal Counsel, The Arbitration Institute of the Stockholm Natalia has been legal counsel at the Stockholm Chamber of Commerce Arbitration Institute (SCC) since 2005. She was Secretary at the SCC Mediation Institute and the Swedish Arbitration Association for Young Lawyers at the SCC Institute between 2006-2007. From 2001-2004 Natalia was an associate at Gernandt & Danielsson Advokatbyrå and Vinge Advokatbyrå, working in the litigation and arbitration department, Stockholm.

She obtained her law degree from the Russian Academy of Foreign Trade and was further educated at the University of Stockholm, becoming a Swedish qualified lawyer and a Master of Law. Natalia also has a Masters in Philology summa cum laude from the Lomonosov State University in Moscow.

Michael Redman - Director, Burford Capital Michael is a Director and co-head of Burford’s global corporate intelligence, asset tracing, and enforcement business.

Michael began his career in the Lloyd’s of London insurance market and later worked in West Africa in the diamond industry. He has worked in the investigations sector for well over a decade and has held senior positions in both Moscow and London at leading global commercial intelligence companies. Michael has advised on many high value disputes in the natural resources, financial services and pharmaceuticals sectors.

Michael has degrees from University College, London and Cambridge and went on to qualify for the English Bar. He is fluent in Russian.

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Tim Williams - Area Counsel, Middle East and Asia, Wärtsilä Energy SolutionsAs Area Counsel, Middle East and Asia for Wärtsilä Energy Solutions, Tim is responsible for legal support in project development, equipment sales, project execution, and after sales support with a small team of three; he is also part of the Area Management Team. Tim has managed various disputes (litigation, arbitration, mediation, determination), and sits on the Claims & Dispute Working Group.

Tim was admitted as an English solicitor in 1993, he is an accredited mediator (with CEDR London), and he holds an LLB from the University of Southampton (1990) and an MBA from the Helsinki School of Economics (1998).

Roger Wiltshire - EMEA General Counsel, Northrop Grumman Roger and his team are responsible for providing primary legal coverage to the Regional Management Team and Northrop Grumman’s European operating entities. This includes European legal and regulatory matters particularly with respect to Compliance, tax, intellectual property, real property, transactions and litigation.

Roger joined Northrop Grumman in September 2013 from BAE Systems where he worked for 16 years in a number of roles, including latterly Chief Counsel UK where he oversaw legal matters in the UK defence and security businesses.

Prior to BAE Systems Roger trained and qualified as a solicitor in 1994 with Richards Butle (now Reed Smith).

What’s Different About International Arbitration? Practical Tips for Lawyers and Arbitrators

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