TheChallengesoftheContemporaryArbitrationLandscape

Arbitrationandnon-judicialformsofdisputeresolutionexisttoprovidepartieswithflexiblemeansofsettlingtheirconflicts.Thisisparticularlysignificantininternationalbusiness,wheredifferences in legalculturesandother factorsmayrenderdomesticlitigation unattractive. Yet the hallmarks of efficiency traditionally associated witharbitration havewaned as the practice has been commandeeredby large law firmsand repurposed in the shape of litigation. As such, business-oriented users ofinternationaldisputeresolutiontodayareadvisedtoproactivelyensuretheefficiencyofarbitrationatboththecontractingandadversarialstages,whilealsoexploringthevalueofamicable formsofdispute resolution.This simplebutcriticaladvicecanbesuccessfullyadaptedacrosssectors, regions,andactors, including to the investmenttreatypracticeofsovereignStates.

OurCentreforInternationalArbitrationandDisputeResolution

TheCentreforInternationalArbitrationandDisputeResolution(CIADR)isoneofthemaincentresofexpertiseoftheLondonCentreofInternationalLawPractice(LCILP).Through its worldwide network of experts and counsel, CIADR is able to providespecialized training and technical assistance, legal and policy advice, andrepresentation on a wide range of international arbitration and dispute resolutionmatters.CIADRcombines in-depthunderstandingof international lawandprocedurewith practical experiencein all major sectors and fields of international disputeresolution.

InternationalArbitrationandDisputeResolutionImage:JannesLinders

ExpertiseandActivities

SpecialisedTraining

CIADRproposesspecialisedtrainingprogrammes,seminars,andconferences encompassing the full range of legal issues relatedto international arbitration and dispute resolution, withparticular emphasis on practical and technical aspects throughmock case participation and analysis. Matters covered by suchcoursesinclude:

InternationalCommercialArbitration

A comprehensive or bespoke review of the legal fundamentals or advanced procedural aspects of every stage of international commercial arbitration: • Critical aspects of boilerplate language in

commercial contract arbitration clauses

• The selection of the seat of arbitration, including common principles and instruments for the application of domestic arbitration law, such as the UNCITRAL Model Law

• Key distinctions among arbitration rules with

global or regional prevalence, including CIArb, CIETAC, CRCICA, DIAC, HKIAC, ICC, ICDR, KLRCA, LCIA, NAI, OHADA, PCA, SIAC, UNCITRAL, and SCC Rules

• The commencement of the arbitration, including

the constitution of the tribunal, scope of the tribunal’s jurisdiction and powers, and drafting of cost-effective and strategically advantageous terms of reference

• The challenge of arbitrators, including grounds for disqualification under the IBA Guidelines and analysis of appointing authorities who decide upon the challenge

• Common practices and pitfalls regarding

preliminary objections to the tribunal’s jurisdiction ratione personae, rationemateriae, and rationetemporis

• Joinder of claims and third-parties arising from corporate relationships and identical or materially similar arbitration clauses in a chain of contracts

• Interlocutory matters, including requests for

interim relief, petitions for court intervention, and emergency arbitration proceedings

• Redfern Schedules and other matters which commonly arise in evidentiary battles over the disclosure of documents

• Tailoring written and oral advocacy to the legal cultures and professional dynamics of an international group of arbitrators and counsel

• Maximising relief through a range of cost allocation and interest calculation models

• The procedural framework and legal standards for enforcing arbitral awards at the seat (i.e., in set-aside proceedings before domestic courts) and in foreign jurisdictions where the respondent has stored its assets (i.e., under the widely adopted provisions of the New York Convention)

InvestmentTreatyArbitration

In addition to procedural elements of international commercial arbitration that are common to investment treaty arbitration, we offer foundational and high-level support for representatives of both States and foreign investors:

• Investment treaty arbitration in relation to

strategic alternatives such as domestic court proceedings and inter-State diplomatic protection claims

• The negotiation and drafting of bilateral investment treaties providing for ad hoc arbitration, with reference to model treaty

practice and major bilateral treaties on the horizon (e.g., US-China)

• The application and interpretation of regional trade and free trade agreements providing for ad hoc arbitration, with reference to established practice (e.g., NAFTA, CAFTA-DR) and new major pacts such as the Trans-Pacific Partnership

• The initiation of investor-State arbitrations pursuant to national investment laws

• All aspects of the ICSID arbitration framework, including jurisdictional requirements concerning the definition of an ‘investment’, unique aspects of the conduct of the proceedings, and the self-contained nature of award annulment and execution

• Distinctions between jurisdiction and admissibility of disputes and their strategic relevance to time-barred claims and ‘cooling-off’ clauses in investment treaties

• Analysis of other common procedural clauses in investment treaties, such as fork-in-the-road provisions

• The incorporation of contract claims in investment arbitrations through umbrella clauses

• Key distinctions in the drafting of substantive provisions in investment treaties, such as fair and equitable treatment, most-favoured-nation treatment, and protections against expropriation

• The application of customary international law in investment arbitrations, and its relation to the foregoing treaty protections

• The potential application of most-favoured-nation treatment to dispute settlement provisions in alternative treaties

• Evolving grounds for disqualifying tribunal members in investor-State arbitration, such as issue conflict

• The recent emergence of transparency, civil society submissions, and other public values in investor-State arbitration, including through the UNCITRAL Mauritius Convention

SectoralConcentrations

• Energyarbitration in the fields of oil & gas,

mining, and other natural resources(including dispute settlement issues arising at the negotiation, procurement, exploration, extraction, refinement, and distribution stages of complex energy projects), with analysis of major treaty frameworks such as the Energy Charter Treaty

• Utilities arbitrationinvolving PPAs with public

authorities, including forms of contract, industry

terms, and regulatory issues subject to dispute settlement proceedings

• Construction arbitration essentials, including the negotiation, structuring, and implementation of EPC contracts in large-scale infrastructure projects

• Maritime arbitration pursuant to chain contracts among charter parties, with reference to procedural rules in London and abroad and recourse to judicial enforcement mechanisms.

• Civil aviationdispute settlement in light of the Chicago, Warsaw, and Montreal Conventions, open skies agreements, and State and regional regulatory frameworks

• Financial services arbitration, with reference to

model clauses and procedural rules under P.R.I.M.E. Finance and ISDA Master Agreements.

• Online dispute resolution providing for

efficient and cost-effective settlement of commercial and consumer-based disputes, including UNCITRAL innovations and the role of online adjudication in emerging U.S., EU, and China cyber-programmes.

• Domain name dispute settlement, including application of the ICANN Uniform Domain Name Dispute Resolution Policy and recourse to WIPO arbitrators and neutrals

• Sports arbitration proceedings, including

expedited cases under CAS procedural rules and grounds for appeal before the Federal Supreme Court of Switzerland

• Human rights in arbitration proceedings, such

as the intersection of indigenous rights and investment arbitration, and the potential for dispute settlement application of UN and other instruments on business and human rights

Regional & TerritorialConcentrations

• Arbitration in the Middle East & Africa.

These courses examine aspects of arbitration unique to the States and regions of this area. For example, the practice has had a complex history in the MENA region, from its promotion in the Qur’an to the demonstration of colonial power differentials in early investor-State cases. The strong status of arbitration in the Arab world today is reflected in the emergence of regional arbitration centres such as DIAC and CRCICA and the broad adoption of the New York Convention. Yet the very limited application of the UNCITRAL Model Law in this region requires parties to understand a range of legal distinctions at both the contracting and dispute resolution stages. The MENAregion course thus reviews on a State-by-State basis key practical

aspects including requirements for use of local counsel, community limitations on appointment of arbitrators (and enforcement abroad based on foreign law and jurisprudence such as Jivraj v. Hashwani), the awarding of interest in light of usury prohibitions, and territorial restrictions regarding the hearing and signing of awards.

• Arbitration and dispute resolution in China. This course surveys China’s principal dispute resolution institutions: mediation/conciliation, arbitration, and litigation in the People’s Courts. This course will explain the rules, process, issues, cases, and controversies currently surrounding such institutions as well as China’s efforts at harmonisation with international practices. Practical as well as distinctive features of mediation/conciliation, including MED-ARB, will be discussed. The course will then consider the drafting of arbitration clauses in the Chinese context. Chinese commercial arbitration, before CIETAC and local arbitration commissions in Beijing, Shanghai, and Shenzhen, will feature prominently. Chinese online dispute resolution will be treated. Selected aspects of foreign-related litigation in the People’s Courts and judicial review of Chinese domestic and foreign-related arbitral awards will be covered. The course will conclude with an examination of Chinese recognition and enforcement of foreign and Hong Kong judgments and arbitral awards.

• Commercial arbitration in Hong Kong. This course will examine the institution of international commercial arbitration in Hong Kong primarily by reference to the Hong Kong Arbitration Ordinance, decided Hong Kong cases, and the HKIAC Administered Arbitration Rules and Procedures for the Administration of Arbitration under the UNCITRAL Arbitration Rules. There will also be discussion of ICC and CIETAC arbitration in Hong Kong. Issues to be covered include: arbitration clauses and arbitral agreements, the seat of arbitration, applicable law, appointment and powers of arbitrators, jurisdictional challenges, arbitral hearings, interim and final remedies, evidentiary matters, arbitral awards, grounds for challenge and appeal, and recognition and enforcement of arbitral awards, including Hong Kong awards in Mainland China and vice-versa.

Inter-StateConflict&Cooperation

• Public international law aspects. This course

covers the range of dispute settlement options available to States under Article 33 of the UN Charter. The course reviews these amicable and contentious options by examining their use in prior practice, from successful mediations to ICJ cases and inter-State arbitrations. As such, it also distinguishes the role of UN and regional bodies in facilities and enforcing the peaceful resolution of sovereign disputes.

• International economic law aspects. This

course addresses inter-State relations within the framework of economic treaties. This includes dispute settlement proceedings before the WTO Dispute Settlement Body, as well as options for initiating investment treaty cases through inter-State dispute settlement clauses. The course also refers to negotiation principles within global economic fora (e.g., the WTO) and relevant regional treaty-making processes.

AmicableDisputeResolution • Mediation and related forms of third-party

dispute resolution (such as conciliation). CIADR designs its courses to emphasise practical value in role-play situations, covering fundamental mediator skills, mediation models, and procedural structure.

• Negotiation in intercultural environments. CIADR tailors its courses to clients’ geopolitical or industry-specific needs, using hands-on exercises to enable participants to better identify interests, evaluate strategic alternatives, and open and close negotiations.

ClientConsultationandRepresentation

In addition to its specialised training, CIADRoffers advisory services andrepresentationalsupport on a case-by-case basis in each of the foregoingareas of expertise. In such instances, CIADR selects the most relevantexperts from its highly qualified team toensurethe development anddelivery of dispute settlement services and policy consultationssuited totheneedsofindividualclientsinthepublicandprivatesectors.

TheExpertTeamofCIADR

CIADR gathers recognised specialists from across the full range ofinternationaldisputesettlementlawandpolicy.CIADRexpertshaveactedas arbitrators, counsel, experts, and secretaries in dispute settlementproceedingsspanning• Judicial/arbitralfora: ICJ, WTO, ICSID, PCA, State courts across sixcontinents

• Investmenttreaties: NAFTA, CAFTA-DR, Energy Charter Treaty,High-useBITs

• Proceduralrules: CIArb, CIETAC, CRCICA,DIAC, HKIAC, ICC, ICDR,KLRCA, LCIA,NAI,OHADA,SIAC,UNCITRAL,SCC

Theadhocnatureofourexperts’participationenablesCIADRtotailoritstrainingandadvisoryservicestoflexiblysuittheneedsandpreferencesofour clients. To discuss our experts’ credentials in greater detail, pleasecontactustoarrangeforaconfidentialdiscussion.

Partners

CIADRmaintains institutional links with a number of IGOs, NGOs,andacademic, strategic, and professional bodies involved in the developmentandpracticeofinternationaldisputeresolution.

AdditionalExpertise

The Centre for International Economic Law, Trade and Development (CIELTD) at LCILPprovides specialised training, capacity-building, technical assistance, project management,andadvisoryservicesacrossabroadspectrumofinternationalandregionaleconomic,tradeanddevelopmentlawandpolicyareas.TheseareasincludeWTOlawandpolicy,tradeandindustrialpolicyreviewsandassessments,tradefacilitation,regionalandbilateralfreetradeagreements,investmenttreaties,disputeresolution,competitionlawandpolicy,sustainabledevelopment strategies, and U.S., EU, and China trade regulation. The CIELTD team ofexperts and advisors includes globally recognized legal practitioners, trade economists,formerdiplomats,jurists,andprofessorswhohaveadvisedgovernments,IGOs,andprivatesector clients.CIELTDmaintains relationshipswith theWTO,UnitedNationsagencies, theWorldBank,aswellasregionaldevelopmentbanks.TheCentrepossessesspecialregionaltrade-andinvestment-relatedexpertisewithrespecttoChinaandEastAsia,theMiddleEast,andAfrica.

The Centre for International Water Lawand Security (WLS) at LCILP is dedicated tothe exploration of new legal and politicalmeanstoassistandresolvethemostpressinginternational and national water issues. TheCentreworksdirectlywithhigh-level expertsandconsultantsonallaspectsofinternationalwater law and security,with awide range oftraining and consulting capabilities. Acrossboth water law and security, we offer anextensive network of multilingual,interdisciplinary team of highly-trained andexperiencedexperts.Ourparticular strengthsinclude training, strategic consultations andinnovative policy development advising withforeign affairs ministries; water affairsministries; legislators; water regulatory andmanagement authorities with a role innegotiating,draftingorreformingtreatiesandlegislation; those with roles in planning,influencing and decision-making ontransboundarywaters;andnon-governmentalorganisations and civil societyrepresentatives.

The LCILP’s Centre for InternationalEnergy and Natural Resources Law &Securityoffers technical and policy adviceand training across the entire spectrum ofenergy law and natural resources. Thisincludes investment, finance and economics,contract drafting and negotiations,procurement and construction as well asarbitration and dispute resolution with anemphasis on all aspects of energy securityand a practice-based approach. TheCentre’steam consists of experts with extensiveinternational experience, practicing lawyers,publishedauthorsintheirrespectiveareasofexpertise, arbitrators and technical experts.Their expertise covers mainly the followingareas:Oil and gas; Mining; Nuclear energy;Renewableenergy;Policyaspectsandenergysecurity.

CIADR Main Contacts

BrandonMalone

Pierre-EmmanuelDupont

JonathanLux

ExpertinArbitration&DisputeResolutionb.malone@lcilp.org

Head of Public InternationalLawp.dupont@lcilp.org

ExpertinInternationalArbitration&DisputeResolutionj.lux@lcilp.org

CentreforInternationalArbitration&DisputeResolutionLondonCentreofInternationalLawPracticeSecondFloor,Gray’sInnChambers19-21HighHolbornLondon–WC1R5JAUnitedKingdomT:+44(0)2074045029W:www.lcilp.org