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Lessons Learned (US and UK): Key Elements to Encourage Private Sector Participation in Domestic and International Arbitration Proceedings
Cyrus Benson27 March 2014: International Conference on Commercial Arbitration in Mongolia
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The Question: How to get domestic and international disputants to use or at least consider using arbitration
Necessary elements?
Elements to
avoid?
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Top Five Necessary Elements
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•Provide certainty/predictability
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•Protect arbitration’s advantages
3
•Promote awareness
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•Foster comfort level of necessary players
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•Create convenience
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Provide Certainty/Predictability
Judicial Support (free of improper influence)
Uphold agreements to arbitrate Enforce awards Act in aid of arbitration
Legislative Support
Clear framework Reduce potential judicial encroachment
Favorable National Policies
Pro-arbitration Anti-judicial intervention
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Protect Arbitration’s Advantages
Neutrality
Ensure independent/impartial arbitrators Consistent un-biased appointment process for arbitrators
Quality of adjudication
Experienced arbitrators across a range of industry sectors and legal systems
Power to select decision makers knowledgeable of type of dispute/sector
EfficiencyEliminate unnecessary cost and delay
Flexibility
Parties/Arbitrators/Institutions able to fashion method of dispute resolution to fit the needs to the case
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Promote Awareness
UK
London Court of Arbitration (LCIA)
Education
Chartered Institute of Arbitrators
Promotional activities: conferences, seminars, etc.
US
AAA: American Arbitration Association (1926)
ICC (Case Management Team 2013); CDR; etc.
Education
Promotional activities: conferences, seminars, etc.
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Foster Comfort Level of Necessary Players
Judges that are familiar with laws and process
UK: Commercial Court US: Guide on International Commercial Arbitration for US Federal Judges (July 2013) US: New New York specialized court
Arbitrators who are knowledgeable, impartial and neutral
Educate Training programs Gain experience
Legal practitioners who are familiar with the processEducate Promote through conferences, seminars, etc. Awareness of options, help mold them to clients’
needs
Businesses that are familiar with the process
Educate Promote through conferences, seminars, etc.
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Create Convenience
UK
Commercial Courts
Hearing centers (IDRC)
Support services
Infrastructure
Variety of arbitral institutions: LMAA, LCIA, etc.
US
Variety of arbitral institutions: AAA, ISCID, ICC, FINRA, etc.
Hearing centers (NYIAC: 2013)
Support services: translation, transcripts…
Proximity
New York: International Arbitration Judge (2013)
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Top Five Elements To Avoid
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•Judicial hostility/interference
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•Legislative aggression/backlash
3
•Encroachment into arbitral process/party choice
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•[Mis]using public policy or other exceptions
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•National bias/cultural inflexibility
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Judicial Hostility/Interference
UK
Historically: Judges reluctant to surrender jurisdiction
1854: Common Law Procedure Act 1854
1889: Arbitration Act (amended: 1950, 1975, 1979 and 1996)
1975: New York Convention
US
Historically: Vynior doctrine adopted from UK
1925: Federal Arbitration Act
1970: New York Convention incorporated into law
Continuing process of educating judges
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Legislative Aggression/Backlash
Elsewhere
Denouncing Bilateral Investment Treaties (e.g., Indonesia canceling Dutch BIT earlier this month)
US
Proposed Fairness in Arbitration Act; California disclosure requirements
UK
Contract Sanctions Consultation
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Encroachment into Arbitral Process
Elsewhere
Interlocutory appeals on procedural matters
Terminating arbitrations for timeliness
Suits against arbitral institutions, arbitrators
US
“Arbitrability” Supreme Court review in BG v. Argentina
UK
European Law
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[Mis]using Public Policy or Other Exceptions
UK
Illegality (Soleminany)
Appeal questions of English law
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National Bias/Cultural inflexibility
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Conclusion
Moving forwardThere is a wealth of experience around the world that informs and facilitates the drafting of good, pro-arbitration legislation. The UK and US have been important contributors.Today’s challenge lies in implementing such legislation and creating arbitral institutions and practices that gain the confidence of potential users. Meeting that challenge requires a long-term commitment, resources and unwavering political will.
Cyrus Benson
Gibson, Dunn & Crutcher LLPTelephone House 2-4 Temple Avenue, London, EC4Y 0HBTel +44 (0)20 7071 4239 • Fax +44 (0)20 7070 9239
[email protected] [email protected] • www.gibsondunn.com
