Welcome to the Australian Disputes Centre’s Blog on Australian Arbitration Week 2021
ADC’s Associates and Interns covered events throughout Australian Arbitration Week 2021 on this blog. The Blog is full of insights and references from the myriad of speakers presenting throughout the week. We have also added a few links for additional reading.
We have tried to keep acronyms to a minimum, but for those new to the topic: International Commercial Arbitration “ICA”, and Australia Arbitration Week “AAW”.
Please enjoy the Australian Disputes Centre’s AAW2021 blog…
DAY 5 – 22 October 2021
Good morning early birds! Time is running out for you to catch AAW 2021 live. It is the 5th and final day of a mammoth week of events. AAW has covered an enormous breadth of topics over the past 4 days, and given todays programme, AAW2021 still has much more to offer. We’ll be here on the Australian Disputes Centre’s blog all day to keep you updated.
The first session this morning is kicking of at 9.00am AEDT. For now, check out what has been happening over the past 4 days in the blog below…
Level Twenty Seven Chambers in Brisbane (2 time winners of Australian ADR Awards ‘ADR Chambers of the Year’) will be a hive of activity this morning in preparation for their event, and a fount of knowledge from 9.00am. ADC will be reporting on the event around morning tea time. We are excited to get started!
9:00 – 10:00am – Functus Officio in Arbitration – Presented by Level Twenty Seven Chambers
Level Twenty Seven Chambers, explored the situations where an arbitrator might be said to have performed the office so as to be (wholly or as to particular aspects of the referred dispute) functus officio. Whether an arbitrator is functus officio is important for determining the question of the continuing arbitrator’s jurisdiction, which is fundamental to the validity and enforceability of a subsequent arbitral award.
The speakers traversed a range of issues on this topic including:
- When an arbitrator is functus officio
- The weight that courts give to an arbitral tribunal’s reasons for determining its jurisdiction
- Whether courts can remit a matter to an arbitral tribunal after an award has been set aside
Shane Doyle QC began the session by examining the application of functus officio to interim awards through the discussion of two cases: Fidelitas Shipping Co Ltd v V/O Exportchleb  1 QB 630 at - and Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd  QSC 306 at . He outlined that there may be ambiguity as to the “issues to which the interim award relates” in certain cases as it raises the question that does it apply to all issues pleaded or does it extend to issues unthought-of in liability. Under Article 34(2)(a)(iii) of the UNCITRAL Model Law, the court has jurisdiction to set aside an arbitral award if “the party making the application furnishes proof that the award deals with a dispute not contemplated by or not falling within the terms of the submission, or contains decisions on matters beyond the scope of the submission to arbitration”.
The recent case of Chevron Australia Pty Ltd v CBI Constructors Pty Ltd  WASC 323 was discussed at length, whereby CBI sought to raise new contractual construction issues after the first interim award on “all issues of liability”. Chevron argued that that the Tribunal was functus officio.
At , Justice Kenneth Martin of the Supreme Court of Western Australia outlined that a “set aside application seeking to have a court address an authority or jurisdiction obstacle arising out of an asserted condition of functus officio, does engage… s 34(2)(a)(iii) statutory parameters”.
Sarah Spottiswood further examined the distinction between arbitral assessment by an arbitrator and an arbitral assessment by the Court. An assessment by an arbitrator is founded on the competence-competence rule, as evidenced in Art 16(1) of the Model Law, where “the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement”. When discussing how much weight should a Court give to a Tribunal’s decision on jurisdiction, Sarah explained that the Court would make its own objective assessment of the arbitrator’s jurisdiction.
Chiann Bao further explored the exceptions to the principle of functus officio, with reference to the Slip Rule’ as under Art 33(1)(a) of the Model Law and where parties request additional award interpreting the award under subsection (b). Art 34(4) of the Model Law further provides a court’s jurisdiction to remit to the tribunal before the court sets an arbitral award aside. Additional interim measures and arrangements between Hong Kong and Mainland China were also discussed at length.
Thank you Level Twenty Seven for your thorough review of the issues, Turning now from the Queensland Bar to the NSW Bar.
10:30 – 12:00pm – Banco Chambers Panel Session – Presented by Banco Chambers
Jonathon Redwood SC, Kate Lindeman, Danielle Forrester, Tim Breakspear, Harriet Lenigas, Katie Sutton and Boxun Yin of Banco Chambers traversed three topics:
Thank you to the Banco Chambers International Arbitration Group for delivering an entertaining and informative panel session. Banco Chambers hosted a lively discussion whereby the speakers traversed three main topics in arbitration:
- Independence issues for Australian Tribunals post Chubb
On 27 November 2020, the UK Supreme Court handed down an important final judgement for the international arbitration community in Halliburton v Chubb  UKSC 48. In summary, the Court held that arbitrators have a duty to disclose appointments in overlapping arbitrations, that the arbitrator in the relevant arbitration breached this duty, and that an appearance of bias may have existed at a point in time. Although this decision may be successful in hindering parties’ from mounting tactical challenges to arbitrators on the grounds of impartiality, the judgment may also make clients who select arbitration as their mode of dispute resolution for its opportunity to resolve disputes on terms of their own choosing second guess their judgement.
Most arbitration users who uniformly desire efficient proceedings with as few avenues for obstruction and lack of clarity will likely welcome the UK Supreme Court’s decision. Hindering obstruction and promoting clarity in enforcement is valuable in light of the significant costs that parties may incur if they wish to challenge either the arbitrator or the award, where arbitrators fail to abide by requisite standards.
2. Possible legislative improvements to Australia’s arbitral framework
The speakers shared their perspectives on how Australia’s arbitral framework may be improved in general and in light of Chubb. Other scholars have proposed filling gaps in the Commercial Arbitration Act 2017. Some of these suggestions include providing judicial review where there is a negative finding of jurisdiction by a tribunal, adding provisions explicitly providing for the enforcement of an emergency arbitrator’s award, and adding a default costs rule applicable when parties challenge an award or resist enforcement. What are your thoughts on what can be improved in Australia’s arbitral framework?
3. Practical issues in new energy/renewables arbitrations
Government climate-change policies are reshaping the global energy industry. As companies adapt to this new regime, they confront increasingly complex international disputes. Much like other energy and infrastructure projects, renewable energy projects typically involve many cross-border dispute related issues due to their significant upfront investment, valuable intellectual property, and complex regulatory issues. The disputes realizsed in the energy/renewables sector of arbitration vary greatly from joint venture, M&A and financing deals to regulatory disputes and further to licensing, intellectual property and technology.
Thank you to the Banco Chambers International Arbitration Group for delivering this informative panel session!
12:30 – 1:30pm – What’s the bottom line? Management of Costs in International Arbitration – Presented by ACICA
Special Rapporteur – Helen Lin
Another session full of practical insights! We heard from a diverse panel of experienced practitioners on their approaches to the achievement of efficiencies. They explored opportunities and strategies for the effective management of costs at all stages in the lifecycle of an arbitration.
This event provided invaluable insights for corporate counsel, arbitration practitioners and arbitrators keen to understand the active role they can play in costs management and where the opportunities for ‘value add’ can be promoted.
Deborah Tomkinson, Jo Delaney, Matthew Lee, Cameron Hassall, Jonathan Redwood
The session started with a brief introduction into the administered arbitration process conducted by ACICA, which assists parties and the tribunal with the expedient progression of the arbitration in a timely manner and in accordance with the ACICA Arbitration Rules. The advantages of using a specialised institution like ACICA were discussed at length, including its ability to confirm the nominations and suitability of arbitrators, its effective management and monitoring of cases, and its capacity to provide cost and time efficiencies through resources such as the publicly accessible Practices and Procedures Toolkit on its website.
The speakers then delved into effective strategies for parties to fund or manage their arbitration costs and suggested that it is imperative for clients to work closely with their lawyers to assess what their legal representatives can provide when investigating a potential costs claim. Matthew Lee from Litigation Finance examined the need to source appropriate providers of capital for corporates, who will provide financing resources such as asset recovery and identification skills, data about corporates who are repeat claimants and create a portfolio of such corporates. This allows the client to bundle cases together in a form of ‘portfolio funding’ such that they are able to minimise the overall risk of litigation.
Jo Delaney from HFW also discussed the ‘need-to-knows’ when engaging skilled representation in international arbitrations and highlighted the importance for legal practitioners to remember they are in arbitration, not litigation. There is a tendency for lawyers to follow what they know best, and this often results in the mimicking of court procedures and the litigation process when lawyers approach an arbitration. She advised parties to adopt a memorial approach to their statement of claim or statement of defence in the initial stages of arbitration, as this helps parties prepare from the start and also helps the tribunal with clarity of legal issues in court.
Cameron Hassall from Clifford Chance Hong Kong emphasised on the usability of Tribunal Secretariats in helping to bring arbitration costs down and highlighted the need for arbitrators to have confidence to be robust when it came to issues surrounding time limits. These strategies include rejecting challenges that arise outside the designated timeline and limiting document production in favour of time efficiency as it can be an expensive procedure.
Overall, some very useful strategies and considerations were raised in discussion of costs management in the arbitration process.
1:30 – 2:30pm – Arbitration and Dispute Resolution in the Space Sector – LK
Special Rapporteur – Stephano Salani
Hurtling towards the end of AAW2021, the panellists from LLK took their guests intergalactic with a discussion of Australia’s emerging space industry and its interaction with the law.
Kirsty Zander from LK moderated a distinguished panel of space law specialists consisting of Brooke Hall-Carney, Nick Gallus, and Mark Giddings from LK. The ground covered by these panellists included industry developments, the frequency and types of disputes that arise in the sector, the range of issues space-related contracts should contemplate, and the role of investment treaty arbitration in resolving disputes.
The developments that are being seen in the space sector are not as related to massive objects, such as space shuttles and space stations, as they are to communication satellites that are rather small. Now that Australia has a space agency, it has opened its doors to collaborations and commercial endeavors with other countries’ agencies.
Some of the common types of disputes that have arisen within the space sector include those that occur within the supply chain of the space industry. For example, many disputes that arise are in regard to the supply of components, preparation for launch, and maintenance of key components in space. All of these issues arise from contractual obligations and are often based on assumption of risk and/or liability of failure.
Now that the space sector has both public and private parties taking part, the disputes have become much more complex because they now also include interplay between public actors, such as space agencies and defence sectors, and private commercial actors. Moreover, to further the complexity of issues, many of the issues hinge on geopolitical relations between countries. As such, international treaties have a more direct impact on private matters in space than in many other regimes.
Several international conventions provide provisions that aid in the resolution of disputes by allocating the liability and responsibility of damages arising from interspace collisions as well as collisions on Earth. Arbitrations have been more prevalent for addressing space sector disputes and most of the arbitration proceedings have been conducted under institutional rules. Notably, the Permanent Court of Arbitration (PCA) recently published optional rules for space disputes. The optional PCA rules include special provisions that account for unique confidentiality and technical complexity concerns that may arise in such disputes.
The space sector is relevant in Australians’ day to day lives because the satellites provide crucial communications and data transfer services that are increasingly demanded as data-hungry technologies, such as the internet of things (IoT) and autonomous vehicles, evolve and become more prevalent.
This was an invaluable opportunity for attendees to broaden their horizons (quite literally) and gain insight into the different applications of arbitration across a unique area of law! A big thanks to the panel for enlightening us with such an interesting topic.
We are now moving at warp speed in wrapping up AAW2021.
Still to come… ACICA is hosting an in-person event at Ashursts in Perth (because they Covid-can). We are hoping to see some photos from WA of people with drinks in hand and without a video screen around them. This is the 2nd year that Australian Arbitration Week has gone virtual. It has been amazing, but fingers crossed that in 2022 we can all boldly go where all those in Perth are going today!
DAY 4 – 21 October 2021
Good morning AAW speakers and blog guests. We have two more big days ahead of us and the team at the Australian Disputes Centre is excited to take off into Day-4’s insights and new ideas! We will be with you throughout the day to report on events. For now, if you missed any events earlier in the week, catch up on each day in the blog below…
9:00 – 10:30am – Investor-State Disputes, Infrastructure and Construction Arbitration, and New Technology in Arbitral Disputes – Presented by 7 Wentworth Selborne
Special Rapporteur – James Ahn
The topics of discussion were Investor-State Disputes, Infrastructure and Construction Arbitration, and New Technology in Arbitral Disputes. The session dealt with the global enforcement of Investor-State arbitral awards in Australia, continuing reform in Investor-State dispute settlement in 2021, recent abolishment of the Dubai International Financial Centre-London Court of International Arbitration (DIFC -LCIA) Arbitration Centre and its implications. The session was moderated by Mark Dempsey.
Justin Hogan-Doran SC presented for the global enforcement of Investor-State arbitral awards in Australia. Justin is a Barrister at 7 Wentworth Selborne Chambers and was appointed Senior Counsel in 2020 after 16 years at the NSW and Australian Bar. He regularly appears in Australia and sits as an arbitrator in transport and construction disputes, and also acts as a mediator on request in specialist and commercial disputes.
Justin highlighted a recent rise of enforcement proceedings for Investor-State’s arbitral awards in Australia highlighting energy disputes. There are three key reasons that are driving the growth of enforcement issues. First is the increase of bilateral investor-state arbitration treaties and arbitral proceedings leading to the need for enforcement. Second is the growth of the secondary market, where financial investors and institutions are successful in investing and financing in the market. Third is the nation-state globalisation led by investment by foreign States, particularly in the telecommunication and defence industry. He stressed that Australia is a very attractive place for arbitrating investment and financial matters and has a comparatively efficient system as the United States.
Justin introduced one of the cases in which he acted for international investors seeking to enforce over US$6 Billion in ICSID Awards against the Kingdom of Spain, Eiser Infrastructure v Kingdom of Spain and briefly explained the legal reasoning of the case relating to Articles 54 and 55 of the Convention.
Chester Brown presented for the continuing reform in Investor-State dispute settlement in 2021. Chester is a Barrister at 7 Wentworth Selborne Chambers and a Professor of International Law and International Arbitration teaching and researching in fields such as public international law, international dispute settlement, international arbitration at the University of Sydney.
Chester Brown shed light on the recent, so-called legitimacy crisis of Investor-State arbitration by an expansion of investor-state disputes. He explained that in practice, international investment law had become a more dynamic public international area where a host of disputes is arising across the world and arbitral tribunals are dealing with these treaties. He also highlighted that particularly in developing countries, such as Argentina and Spain, the number of cases was significantly increasing and ranked as the first and second countries of having the ICSID cases in the world, respectively.
As the Investor-State disputes are global issues like other arbitration cases, Chester explained that the interpretation of the treaties relies on the Ad-hoc arbitral rules or institutional rules, such as the UNCITRAL Rules and ICC Rules. He also stressed that the problem of increasing Investor-State disputes is the lack of consistency in interpretation of the treaties, lack of impartiality and transparency of arbitrators as the decision-maker, and concerns about the sustainability of Ad-hoc arbitral proceedings and tribunals. Therefore, he said that the continuing reform needs to reflect these concerns and problems.
William Marshall presented the recent abolishment of the DIFC -LCIA Arbitration Centre, its implications and new role of the Dubai International Arbitration Centre (DIAC). William is a Barrister at 7 Wentworth Selborne Chambers and was a Partner in the Construction Advisory and Disputes team at Pinsent Masons. He regularly provides strategic advice on major infrastructure and construction projects and disputes and has appeared in NSW courts in expert determinations, arbitrations, and mediation. He also worked as a solicitor and advocate in the Middle East and registered lawyer with the Dubai Legal Affairs Department.
William spoke on the Shifting sands in Dubai – New Opportunities and introduced the recent abolishment of the DIFC-LCIA Arbitration Centre by Decree 34 of 2021 on 14 September 2021 and reinforcement of the role of the Dubai International Arbitration Centre (DIAC). He explained the historical background; DIAC being established in 2004 by the government as a branch of the Dubai Chamber of Commerce, and a leading arbitration institution during the construction boom between 2016 and 2018. During this period, significant construction disputes between international contractors and government. were handed to the DIAC before the DIFC-LCIA, a joint venture of the arbitral institution, was established in 2008. The DIAC had some significant problems, such as concerns about applying the law, slow communication, and arbitrators’ high fee. Therefore, the DIFC-LCIA tried to supplement these drawbacks by applying English commercial and contract law.
However, the Dubai government has been pursuing a modernising agenda, reviewing laws and regulations, and they want DIAC to coordinate with all concerned entities. The Decree also seeks to deal with the civil and common law together rather than operate the English law-centric arbitral institution as with the DIFC-LCIA. The Dubai government does not intend to interfere in commercial relationships or increase the risk of expropriation of foreign assets.
William thought that reconstruction and rebuilding of the DIAC may deliver excellent results by being supported by the government and other arbitral institutions. Australian-based arbitrators and lawyers have an opportunity to actively support the DIAC and their new rules and seek more opportunities to be nominated as an arbitrator working in the Middle East market.
Mark Dempsey is a Barrister at 7 Wentworth Selborne Chambers and has been acclaimed as one of Australia’s leading Senior Counsel in the areas of major construction, engineering and infrastructure litigation and international arbitration. He regularly briefs in technically challenging and highly complex disputes across Australia and the Asia-Pacific, and also represents a broad range of government and leading corporate clients in large scale disputes.
Mark Chaired the panel and raised a range of questions presented including matters arising from early or prior determinations in the arbitral process e.g. Chevron v CBI Constructors.
A great range of topics from Level 7, now we pivoting to the Battleground of Disclosure!
10:30-11:00am – Flexibility vs. Efficacy in the Battleground of Disclosure – Presented by FTI Consulting
Special Rapporteur – Cheryl Au
Disclosure of documents in international arbitration matters can be complex as parties are often resolving the dispute online. The use of e-documents creates new issues that the parties should turn their heads to when navigating a dispute. The benefit of arbitration over litigation, that is, flexibility and efficacy should not be forgotten when disclosing these documents.
Scott Foster, Senior Managing Director of FTI Consulting, moderated a panel of Jesse Kennedy, Barrister at New Chambers, Lewis Whitehurst, Associate at Allen & Overy and Chris Russell, Managing Director at FTI Consulting, to explore these issues.
In particular, the panel discussed the loose definition of disclosure protocols in International Arbitrations, and whether greater guidance and baseline expectations should be more firmly established. The panel also weighed these considerations against the need to maintain the flexibility of arbitration. Led by moderator, Scott Foster, the documentary process was explored from three perspectives: the Arbitrator, the Lawyer and the Service Provider.
Jesse Kennedy noted the importance for counsel to be involved in the process at an early stage to allow for familiarisation.
From a law firm perspective, Lewis Whitehurst spoke about the need for firms to have a robust internal document management system to avoid common pitfalls such as insufficient record keeping of large datasets. In this regard, consideration must be given for the longer term structuring, organising and storing of data to help streamline processes.
Chris Russell suggested that the data collection phase is integral but oft overlooked part of the process. Chris noted that collecting from a broader scope of documents may be beneficial even where they may not be relied upon. This avoids the need for ‘double dipping’ especially where missing data is later identified.
In the area of international arbitration, all three panelists noted that immense challenges persists in ensuring the effective management of documents. Flexibility is essential especially to ensure the data is captured in a way that adheres to various regulations and rules (whether from the region or the client). Special attention and processes may be necessary for ISDS matters where the data is sourced from the State Sovereign and concerns arise about the protection and security of sensitive matters.
An underlying thread of the presentation is the need for the robust recording of data by all stakeholders including the source of the documents and how the data has been used.
Finally, our panelists identified that technology will play an increasingly important role for international arbitration as more disputes move online in the wake of Covid-19. A variety of technological platforms and services are already being utilised. Practitioners must be skilled across these platforms. Demonstratives have become increasingly common in hearings in the USA and UK. Our panelists agree that this will be a growing area in coming years.
Thank you to FTI Consulting for hosting and moderating this event!
There is one last day to Arbitration Week so don’t miss out on what’s left! If you’re interested in learning how our changing world is impacting arbitration, take a look at The COVID 19 Pandemic and International Arbitration: where do we stand, 18 months in? (Thurs 1:30 – 3:30 pm) and Trends, statistics and updates from the ICC (Thurs 3:00 – 5:00 pm).
12:30 – 1:30pm – ACICA Rules 2021 Roadshow – Presented by ACICA
Special Rapporteur – Stephano Salana
This event was an amazing opportunity to learn about the new ACICA Rules by watching them be applied. ACICA45, ArbitralWomen, and CIArb held an animated enactment of an arbitration proceeding using the newly published ACICA Rules 2021, which came into effect on 1 April 2021.
This event provided an interactive way to explain the key amendments to the rules which reflect developments in international best practice, including with reference to improved online practices developed during COVID-19, expanded scope for consolidation and multi-contract arbitrations, disclosure of third-party funding arrangements and many other features which aim to further enhance the arbitration experience for all users.
The 2021 rules were tested against a hypothetical dispute arising between Coca-Coal and SinoSteel, in the coal and steel industries, respectively. Damian Sturzaker,Mark Dempsey, Tom McDonald, Gitanjali Bajaj, and the Hon. Kevin Lindgren each played a part in the hypothetical dispute while Erika Williams from ACICA regularly stepped in to explain the interplay of the rules with the issues that arose.
The 2021 edition of the ACICA Arbitration Rules introduces amendments relevant to virtual hearings, paperless filing and electronic execution, multi-party and multi-contract arbitrations, effective case management, third party funding, enhanced oversight of costs, the early determination of disputes, alternative means of dispute resolution and time limits for the delivery of awards.
Many of the changes to the rules facilitate clarity and efficiency in the arbitration process in general but are especially useful in a virtual setting. For example, rules regarding consolidation of proceedings and joinder include the establishment of an ACICA Council comprising senior international arbitration practitioners with significant expertise in international commercial arbitration. Moreover, the ACICA website includes a plethora of forms and sample responses that are designed to give parties a model format and structure on which to base their arbitration documents.
Rules regarding confirmation of the arbitrator allow for better assurances of the impartiality of the arbitrator. Impartiality is an important factor in arbitration as it not only affects the legitimacy of of process, but also affects the subsequent enforceability of the award.
With respect to the form and transmission of the award, electronic means are now available thereby assisting in rapidity and efficiency of the arbitral process.
Thank you ACICA for your informative roadshow. Our wheels are spinning!
It’s lunchtime! We will be back soon with the afternoon’s events.
1:30 – 3:00pm – The COVID 19 Pandemic and International Arbitration: where do we stand, 18 months in? – Presented by Resolution Institute
Special Rapporteur – Helen Lin
COVID-19 is THE topic on everyone’s mind. We all know where we have been in the past 18 months, but what can we expect for the next year and half? An experienced panel of Arbitration experts Donna Ross, Amber Williams, Chester Brown and Joshua Paffey, provided their insights in the discussion on “The COVID-19 Pandemic and International Arbitration: where do we stand, 18 months in?”. The session was moderated by Independent Arbitrator and Counsel Lucy Martinez.
The panellists offered various perspectives from the lenses of an institution, private practice/counsel, government, academia, and independent arbitrator, and covered topics such as ensuring gender and geographic diversity and key jurisprudence together with practical tips on:
- virtual hearings and due process challenges
- force majeure and economic hardship defences
- damages/quantum calculations
- opportunities and obstacles for Asia-Pacific-based IA practitioners and arbitrators
3:00 – 5:00pm – Trends, Statistics and Updates from the ICC – Presented by the ICC
Special Rapporteur – Helen Lin
ICC Australia provided an update on the workings of the ICC International Court of Arbitration (“ICC Court”) and the ICC Commission on Arbitration and ADR, for arbitration practitioners in Australia and the Asia-Pacific region.There were two panel discussions:
The session commenced with outlining the responsibilities of the ICC, including its function to scrutinise and approve all arbitral awards, appointment of arbitrators, monitoring procedural fairness and the enforceability of arbitration awards. She also spoke about the current composition of the ICC Court and the election process of the ICC. Interestingly there is now a new term limit for ICC Members which consists of two terms of 3 years each. This is to ensure the court is constantly ‘refreshed’ with rotational members and perspectives.
The panel also delved into the workings of the court, including the focus on transparency and flexibility of arbitration procedures. There is an emphasis on the diversity of members of members and arbitrators, including mention of Claudia Salomon, who became the first female President of the ICC Court on 1 July 2021. The ICC also has 119 different countries represented on the Court itself, with diversity on ethnicity, culture and across generations.
When asked about the standout features of the ICC, the panel members outlined that it is the wealth and knowledge, as well as the global reach of the court that allows it to deliver its goals to ameliorating transparency, efficiency, diversity and inclusion in the arbitration process.
In the second session Jo Delaney discussed the working of the ICC secretariat with ICC South Asia Director Tejus Chauhan, the work of the ICC Commission on Arbitration with arbitrator and mediator Chiann Bao, and the work of Australia’s Nomination Committee with Matthew Secomb, Head of International Arbitration in the Asia-Pacific at White & Case.
Tejus Chauhan spoke about the general tasks of the ICC Secretariat, such as reviewing correspondence and submissions, supervision of the work of the Tribunal, financial monitoring of the case and scrutinising arbitration awards. He also discussed the division of responsibility across different regions for ICC members. Whilst the ICC is headquartered in France, each global region has its own ICC branch headed by Regional Directors, and these branches act as a bridge between the ICC Court and users, engage with Governments and develop strategic growth plans in the region.
Chiann Bao discussed the ICC Commission and its functions as the think tank and rule-making body of the ICC. Interestingly, Asia Pacific continues to account for over 25% of all ICC Arbitration Cases whilst the top nationalities in 2020 concerning the origin of parties were from the USA, Canada and Spain.
Matthew Secomb elabrated on Australia’s ICC Nominations, including the ways an ICC Arbitrator can be selected through parties nominations, court appointments and by commission proposal process.
Notably ICC Australia has recently opened its nominations for new ICC Arbitrators and interested parties can now apply!
That is a wrap for Day-4 of AAW2021. Congratulations to all speakers and thank you to all guests for attending the broad range of illuminating sessions today, we hope that you picked up plenty of new ideas! We will be back tomorrow for the grand finale and Day-5 of AAW.
DAY 3 – 20 October 2021
We are excited to get started with many more ideas germinating on Day 3 of AAW2021!
10:00 am -12:00 pm – Practicalities of Procedure – Presented ACICA 45
Special Rapporteur – Stefano Salani
We are off and racing on Day -3 of AAW2021, starting with a presentation hosted by ACICA45 on practical tips for negotiating Procedural Orders. Procedural Orders are an important part of practicing in arbitration and have become even more prevalent as disputes have been dealt with online due to the unusual circumstances created by Covid-19. Procedural Orders ensure that disputes are dealt with in a manner that is fair and convenient to the parties.
The panel, comprising Erika Williams: Counsel, ACICA, Lucy Zimdahl: Senior Overseas Practitioner, Allens, Imogen Kenney: Solicitor, Herbert Smith Freehills, Imogen Kenney: Solicitor, Herbert Smith Freehills, Guillermo Garcia-Perrote: Senior Associate, Herbert Smith Freehills and Graham Topp: Quantum Expert and Head of Diales Oceania, and Quantity Surveyor. They gave a comprehensive and instructive overview of how practitioners can negotiate a Procedural Order, spanning topics such as:
- The anatomy of a Procedural Order – Amongst other issues, the Procedural Order should identify the technology which has been agreed to be used (if conducted virtually), the question of costs, any additional confidentiality obligations.
- The debate between pleadings vs memorials – Although the memorials approach is widespread in international arbitration today, in some common law jurisdictions (including Australia), there is debate regarding whether it is better to adopt the pleadings approach or the memorials approach in arbitration. However, in the eyes of some common law practitioners (particularly practitioners with backgrounds in litigation), there are certain potential attractions to the pleadings approach. The choice is not binary: it is open to the parties to agree to use whatever hybrid of the two approaches they consider most appropriate for their dispute.
- When to bifurcate – In deciding whether or not to bifurcate proceedings, the arbitral tribunal has a wide margin of discretion. The arbitral tribunal should follow an approach which identifies and balances all the different effects such as the disputed matter on which a separate decision is sought, the form the early decision will have under the applicable laws or arbitration rules, and the different interests affected by bifurcating.
- Discovery dilemmas – Without the right approach, discovery projects in arbitration can be over-engineered, expensive, and may not extract the most crucial insights from the information being considered. The eDiscovery process should be viewed as an opportunity to facilitate the process and not one that should be minimised in an attempt to save money.
- Forms of expert evidence – expert evidence comes in several forms such as strictly technical expertise, legal expertise, and expertise related to delay, disruption and quantum.
- Common pitfalls when negotiating a Procedural Order – A Procedural Order will affect the availability and form of hearings, venues, witnesses and representation. Thus, making sure that each aspect is properly addressed and negotiated is crucial because a deficiency in any of these aspects may affect the strength of a parties’ position.
- How to tailor procedure to your client and objectives – International arbitration is a cross-cultural process and it is important that parties and their lawyers be aware of the potential for legal cultures to clash on matters of procedure.
The panel provided practical recommendations as to how to approach Procedural Orders to achieve the best outcomes for the client. Moreover, we had the opportunity to listen to arbitrators and tribunal secretaries share their ‘war stories’ in the field of international arbitration. One of the main takeaways from the workshop was that practitioners should not underestimate the importance of the Procedural Order, which can have unexpected and far-reaching implications.
The ACICA45 session was a great start to AAW Day 3!
If you’re interested in more workshops that provide insight into practicing in international arbitration then check out CIArb YMG event: Career pathways in international arbitration (Wed 4:00 – 5:30pm) and ACICA Rules 2021 Roadshow (Thurs 12:30 – 1:30 pm).
2:00pm – 3:00pm – Developments in the Australian Energy Sector and International Arbitration – Presented by Jones Day
Special Rapporteur – Stephano Salani
Jones Day’s discussion on energy sector contracts in Australia and arbitration of disputes that arise from those contracts is another hot topic. Darren Murphy, Simon Bellas and Prudence J. Smith from Jones Day shared their experiences working in the sector, while Michael Lundberg from Quinn Emanuel Urquhart & Sullivan LLP and Toby Brown from The Brattle Group discussed common issues which arise in energy-related disputes. The experienced panel was moderated by Leah Ratcliff of Jones Day.
The discussion delved into recent developments in the Australian energy sector, and the intersection of the legal issues and international arbitration. Some of these issues involve related contracts to energy sector agreements such as General Security Agreements (GSA) and Liquified Natural Gas (LNG) contracts.
Oil Pricing disputes generally arise from long-term business relationships. In order to get ahead of the potential disputes that can arise under these business relationships, the panel recommended reviewing the GSA, understanding the underlying source of the dispute, and attempt to retain your experts in the market as early as possible.
An important aspect to consider in commercial negotiations is to consider the range of results parties may achieve in arbitration. Sometimes contention between the parties is amplified by ‘information asymmetry,’ which fuels distrust between them because one party may wish to continue with proceedings as a means to learn more of the other side’s position.
Australia is in the midst of an energy transition from hydrocarbons to renewable energy sources. As governments and companies navigate shifting international energy market disputes will arise. Changing domestic legislation can make previous contractual agreements unviable. As climate change becomes a politically salient issue, energy markets will be subject to more stringent regulation. Arbitration will be critical to responding to these changes as many parties will need to reconsider their contractual arrangements.
New operators and owners generally have less experience, less knowledge, and less at stake with respect to renewables, so more disputes are to be expected in LNG contracts. Embarking on a project with insufficient engineering planning, can be costly in time and costs. The panel commented that it may be beneficial to invest more in your engineering framework on the front end of a project. Snowballing claims prove to be another cause of concern. In general, dispute resolution mechanisms should be used in solving the problems, to keep the project moving forward rather than being a platform for bringing claims against the other side.
The energy sector’s radical shift towards renewables means businesses that fail to proactively respond to changing policy conditions may find themselves unable to fulfil their contractual obligations.
If you are interested in seeing how our changing world is impacting arbitration practice, consider joining us in tomorrow’s sessions: Investor-State Disputes, Infrastructure and Construction Arbitration, and new technology in arbitral disputes (Thurs 9:00 – 10:30 am) and The COVID 19 Pandemic and International Arbitration: where do we stand, 18 months in? (Thurs 1:30 – 3:00 pm).
The Australian Disputes Centre takes a closer look at the topic of PPE’s in its Australia-Latin America Business Forum on 23 November.
Our panel of experts includes, Gonzalo Vial will be speaking on ‘Lessons for Drafting Power Purchase Agreements Arising From Energy Disputes’. Gonzalo is a dispute resolution practitioner and arbitrator from Chile. He holds a law degree from Universidad Católica (Chile) and a LLM from Stanford University (US). Since October he has been pursuing a PhD in Law at Cambridge University (UK). Before he was partner of Bulnes, Urrutia & Bustamante, a dispute resolution boutique based in Chile. He is an Adjunct Instructor Professor of Civil Procedure at Universidad Católica (Chile) and holds several publications regarding dispute resolution.
More details on this event to come. Please register early, particularly if you would like to join the conversation ‘in person’ in Sydney!
3:00 – 4:00 pm – The Great Debate – The Best Forum for Resolving Corporate Disputes: To Arbitrate or Litigate? It’s Not Rocket Science – Presented by Corrs Chambers Westgarth
Special Rapporteur – Stephano Salani
The Great Debate – The Best Forum for Resolving Corporate Disputes: To Arbitrate or Litigate? It’s Not Rocket Science saw ‘Team Arbitration’ and ‘Team Litigation’ go head-to-head to debate which forum was superior for corporate dispute resolution.
Team Arbitration consisted of Joshua Paffey, Belinda McRae, Cameron Sim and Kimberly Reeder. In the case for arbitration, it is usually contended that arbitration offers a customized approach to dispute resolution that can result with the following benefits:
Less cost: In general, arbitration has often been seen as a cheaper way to resolve disputes than litigating in court. However, this is not always the case.
Award Turnaround: Arbitrations tend to follow more specific and defined timelines toward resolving a dispute, resulting in quicker final decisions.
Finality: It is very difficult to appeal arbitration rulings, even if glaring mistakes have been made by an arbitrator. The finality of an arbitral award can be beneficial with respect to ending a dispute and allowing the parties to move on.
Simplified procedures: Litigation can involve mounds of paperwork, multiple hearings, depositions, subpoenas, and similar processes. An arbitration may eliminate some or many of those time-consuming and expensive tools of litigation depending on how the arbitration is tailored.
Confidentiality: Arbitration hearings do not take place in open court and transcripts are not part of the public record. This can be very valuable for parties that value confidentiality of the dispute or its resolution.
Team Litigation consisted of Mark Wilks, James Hutton, Kate Lindeman and Jessie Moodley. In the case for litigation over arbitration, it is usually contended that arbitration inherently has some practical limitations and perceived deficiencies:
Arbitrariness of Arbitration: Although generally the arbitrator should follow the law and related legal principles, the standards used are not always clear because case law and previous decisions are not binding on the tribunal. Arbitrators may consider the ‘apparent fairness’ of respective parties’ positions and employ a subjective level of equity instead of strictly following the law where a judge may be restricted from doing so. Also, an arbitrator’s decision may be based on evidence that a judge or jury would not be able to consider at trial, which could be damaging to a side.
Litigation can include a jury: In some disputes, a jury is an important fact-finding body separate from the judge that helps prevent biases and unfairness in the process. Arbitration eliminates juries, thereby leaving matters in the hands of an arbitrator or arbitral tribunal, which assumes the roles of both judge and jury.
A court decision can be appealed: Litigation offers the ability to appeal a decision of the court, whereas arbitration traditionally does not. By giving up the right to an appeal on the merits, parties cannot have an arbitral award reviewed on the merits by a superior court.
Arbitration can be more expensive than litigation: There are many cases in which arbitration can become more expensive than court proceedings, especially if quality arbitrators demand substantial fees.
Go team Corrs and all Panellists. Thank you to our speakers for delivering such a lively and informative debate.
It’s time to take off to our last sessions for Day-3, AAW2021. Coming up next is all about your young ICA careers taking off. Woohoo!!
4:00 – 5:30pm – CIArb YMG event: Career Pathways in International Arbitration – Presented by CIArb
Special Rapporteur – Caroline Xu
This afternoon we heard from an exciting panel of arbitration practitioners, academics and students below the age of 40, as part of the discussion hosted by CIArb’s Young Members Group (YMG) on Career Pathways in International Arbitration.
Kristian Maley: CIArb Councillor and YMG Chair; Counsel, Clifford Chance; specialises in resolving construction disputes.
Chester Brown: Barrister at 7 Wentworth Selborne Chambers; teaches and researches in fields such as public international law, international dispute settlement, international arbitration.
Judith Levine: Independent arbitrator with experience in public international law, investment treaty and commercial contract dispute
Imogen Kenny: Solicitor, Herbert Smith Freehills and experienced Tribunal Secretary; specialises in international arbitration and complex cross-border litigation.
Our panellists shared their personal journeys, from enjoying arbitration at university, to practicing and promoting it as practitioners and academics. Their experience ranges from private practice and institutional roles, to academia and acting as counsel and arbitrators in proceedings. They also provided insights into the incredibly broad array of possible careers in arbitration and advice for students and young lawyers who aspire to enter the field.
Imogen shed light into the role of Tribunal Secretary, sharing with us that the role is similar to that of a Judge’s Associate or Tipstaff, in assisting the Tribunal with complex matters. There are typically two components to the role: administrative, involving document management and liaising with parties, and substantive, which could include research, drafting procedural orders and summarising parties’ submissions.
How can you get started as a Secretary? According to Imogen, the best pathway is to establish a pre-existing relationship with an arbitrator, or a barrister or law firm partner wearing an arbitrator hat. Show your interest naturally with your enthusiasm about arbitration and your positive relationships with individuals in the profession will help get you there!
Judith spoke from the perspective of an independent arbitrator. She shared that your first appointment as an arbitrator will likely come from an arbitration institution for a relatively small case. However, as you become more experienced and well-known for high quality work, you will start being appointed or approached by parties directly, or appointed by other arbitrators! Her tips included making yourself known to the ICC National Committee, as well as other institutions, and being active in, and contributing to, their young professional bodies. Judith also indicated that you should have several years’ experience working at a law firm as counsel, at an arbitration institution, or as a Tribunal Secretary, before you jump into an arbitrator role.
Chester spoke on the opportunities that a career in arbitration provides for new experiences. First, in terms of interacting with individuals from different countries and business cultures, Chester especially touched on the value in participating in the Vis Moot, and how competitors are required to adjust to different expectations and methods of persuasion to communicate with arbitrators from different jurisdictions. Second, Chester spoke on the diversity of experience and flexibility he has been able to maintain in his career, in that free to pursue his passions in international and investment law and arbitration, while working as a barrister and interacting with bright young legal minds.
Finally, Julia shed insight into the advantages of working in private practice with a car sales pitch, indicating that you can do everything and more! She spoke on the opportunities to gain insights into all sorts of industries, work side by side with clients in her capacity as a risk management advisor and peacemaker, as well as the opportunities to be inspired by your surrounding team, and inspire your juniors and help them grow. She also indicated her appreciation for working across different cultures, and that her career provides flexibility to put on the hat of an academic and publish papers!
We hope that their encouraging stories and insights will help budding legal minds build their careers in international arbitration. Thank you panellists!
For the final event for Wednesday: the Clayton Utz / University of Sydney International Arbitration Lecture, is happening now. Learn all about parallel proceedings in international arbitration!
5:30 – 6:40pm – Parallel proceedings in international arbitration: theoretical analysis and search for practical solutions – Clayton Utz International Arbitration Lecture
Special Rapporteur – Caroline Xu
Wrapping up a packed day of arbitration seminars and panels, Salim Moollan QC presented the 20th Annual Clayton Utz/University of Sydney Lecture. Mr Moollan delved into the problems arising from parallel proceedings in international arbitration and examined the substantial development of investment arbitration and its implications for all actors in the space.
Mr Moollan started by discussing a working definition of parallel proceedings, noting that there is no official or formal definition for the term, being:
“Two or more proceedings submitted to different adjudicating bodies, at least one of which is an international arbitral tribunal, where at a minimum:
- One of the parties is the same and the core facts are the same; and
- The proceedings are further related in the following sense:
- Both parties are the same, substantially the same, or are closely related; or
- The causes of action are the same or substantially the same; or
- The object of the actions are the same or substantially the same.”
He noted that the French term connexe (meaning interrelated or connected) best described these types of proceedings, as it does not necessarily import a concurrence in time, and does not cast too broad a net, given the requirement for a connection between the different proceedings.
Mr Moollan indicated that issues relating to parallel proceedings arise in three main scenarios:
- Cases involving national courts and arbitral tribunals;
- Cases before arbitral tribunals with a purely commercial setting (where there is no element of investment arbitration); and
- Cases where there is an element of investment arbitration.
Mr Moollan identified issues with parallel proceedings, pointing to inefficiencies, the wastage of time and resources, the use of parallel proceedings as a tool for harassment, and the risk of inconsistent and contradictory decisions. Ultimately, these problems undermine the legitimacy of arbitration as an international dispute resolution tool.
Mr Moollan noted that the identified issues are particularly acute in relation to cases involving an element of investment arbitration, for three reasons:
- The factual matrices of such scenarios often involves one or more contracts each with their own arbitration or jurisdiction clause;
- The issue of ‘vertical claims’, where multiple investors from the same corporate chain bring their own claims against the State; and
- The same State measures may spawn numerous claims from different investors with no links of ownership.
Mr Moollan then went on to discuss potential solutions, and noted that classical tools such as res judicata and consolidation are often ineffective and difficult to apply due to the fragmented nature of arbitration. He spoke on the proposed Investor-State Dispute Settlement reforms proposed by UNCITRAL, including
- Incremental reform, involving a soft law instrument in the form of a declaration of the UN General Assembly, as well as a cross-institutional consolidation protocol similar to that promoted by the SIAC; and
- Systemic reform, in the creation of a permanent court system.
Overall, Mr Moollan provided invaluable insights into key issues in the modern arbitration space, and we hope that everyone in the audience thoroughly enjoyed this learning experience! Thank you also to Clayton Utz and the University of Sydney, for facilitating the fascinating exploration of these pertinent issues affecting international dispute resolution and international business operations as a whole.
Make sure to join us tomorrow for the next day of Arbitration week, kicking off with a discussion on Investor-State Disputes, Infrastructure and Construction Arbitration!
DAY 2 – 19 October 2021
It’s bumper Tuesday and AAW2021 is in full swing. Let’s look at what has been happening.
8:00 – 9:00am – New and Emerging Norms: Diversity, the New Normal – Presented by Arbitral Women
Day 2 of AAW kicked off early (and chirpy for the early hour) with the Arbitral Women Breakfast, chaired by Erika Williams Director of Arbitral Women and an Independent Arbitration Practitioner. The topic of discussion was New and Emerging Norms: Diversity – The New Normal. The speakers considered these new norms from individual and institutional perspectives, how those norms are experienced by young arbitration practitioners, and how greater diversity can benefit from, and be actioned through virtual proceedings.
Rekha Rangachari, Executive Director of New York International Arbitration Centre spoke on the ‘R.E.A.L’ initiative launched in early 2021. REAL is an organisation focussed on promoting racial equality for arbitration lawyers. Race remains a hot topic in the USA (and globally) and this initiative creates a platform for meaningful discussion and action!
Rekha highlighted some statistics from the ICC that confirm more work is needed to overcome gender bias. The ICC appoints 42% women as arbitrators, but women nominated by their co-arbitrators make up only 18% of appointments. Donna Ross, Director of Arbitral Women, and Alexandra Zhu, Senior Associate at Clifford Chance, picked up on the ‘opportunity’ afforded by the co-appointment figure, by highlighting how technology can contribute to more networking opportunities for women, as they build the relationships needed to support greater diversity in appointments. Donna is an Independent Arbitration and Mediation Practitioner. Alexandra leads the REACH (Race Equality and Celebrating Heritage) Network in Australia.
9:00 – 10:30am – Arbitrating Environmental Disputes in the a World Facing Climate Change – Presented by Corrs Chambers Westgarth
Special Rapporteur – Cheryl Ang
It’s still early on Tuesday and we are taking a deep dive of the role of cross-national arbitration in addressing climate change. There are few mechanisms for addressing transnational environmental disputes and arbitration is emerging as a means of bridging this gap. With the backdrop of an impending zero emissions target from the federal government and the upcoming COP26 Climate Change Summit in Glasgow, the legal community needs to develop a body of environmental law that can quickly adapt to the rapidly changing climate and effectively target the inputs that are disrupting the broader ecosystem.
In this session the panel discussed the challenges of addressing complex environmental disputes. Bronwyn Lincoln and Nastasja Suhadolnik chaired the panel. Dr Louise Camenzuli began discussions by providing an overview of current Australian and International proceedings on climate change. The complexity of the subject matter is further compounded by the myriad of sources from which disputes may arise, including transnational commercial contracts.
Kathryn Khamsi spoke on Emissions Trading Schemes and the role of arbitration in addressing disputes arising from these legal frameworks. Disputes can vary from regulatory disputes where states are involved and private disputes between commercial parties as a result of trading. There will be a proliferation of disputes as more nation states impose these schemes. Already 54% of global GDP is derived from states with Emissions Trading Schemes. The carbon market is estimated to grow to 10 times the crude oil market. Traditionally, regulatory disputes were dealt with through litigation, however, there has been a noticeable increase in the use of arbitration.
Judith Levine noted that there has been no interstate arbitration as yet on climate change but it is anticipated that nations vulnerable to the effects of climate change, like small islands in the Pacific may be the first to take this step. While arbitration is ideal for dealing with climate change issues in that it is highly flexible and adaptable there may be issues relating to technical expertise, expediency and accessibility. Judith Levine suggested that these issues could be addressed by appointing experts to a panel which can be included in agreements. She also called for increased transparency through public participation.
Lisa Sachs explored investor-state dispute settlement in environmental matters. The modernisation of the Energy Charter Treaty will impact this space as parties must adapt to the changing nature of energy disputes and accepted ‘best practice’. Tension between the permissible regulations and state court decisions may lead to arbitrary and disproportionate interference that could impact economic interests. As it stands, investor-state dispute settlement is not designed to assist environmental goals.
Dr Louise Camenzuli highlighted the role of domestic courts in driving policy in this space. Environmental claims have been based in human rights claims, torts, actions against commercial entities giving certain affected individuals or groups of individuals a right of action, challenges to project approvals and appeals that relate to emissions, contractual disputes arising out of energy transition and climate related events, and actions against companies, directors etc. for breach of fiduciary duties. Litigation is becoming more strategic as plaintiffs attempt to prompt legislative action. While arbitration has limited ability to generate law reform, it still plays an important role for seeking financial redress as a result of climate change.
The panel presented some interesting reflections on the nature of environmental law across the world and challenged practitioners to think about how arbitration between private parties can supplement national and international regimes.
This session was an inspiring call to action and will be increasingly relevant in the years to come. Arbitration week isn’t done yet!
If this is an area of law that has peaked your interest then it will be worth sticking around for Arbitrating Renewable Energy Disputes – An Australian Perspective (Tues 10:30 – 11:30am) and Developments in the Australian Energy Sector and International Arbitration (Wed 2:00 – 3:00 pm).
For background resources we refer you to articles by Dr Louise Camenzuli, Head of Environment and Planning, Corrs Chambers Westgarth Current State Member in the NSW Department of Planning, Industry and Environment:
- “Available scientific climate change evidence to provide strong basis for future litigation” https://www.corrs.com.au/insights/available-scientific-climate-change-evidence-to-provide-strong-basis-for-future-litigation
- “From the courtroom to the boardroom: climate change risks and remedies” https://www.corrs.com.au/insights/from-the-courtroom-to-the-boardroom-climate-change-risks-and-remedies
10:30 – 11:30pm – Arbitrating Renewable Energy Disputes – An Australian Perspective – DLA Piper
Special Rapporteur – Stephano Salani
DLA Piper took a critical look at Australia’s renewable energies regulation and what it means for arbitrators. Gitanjali Bajaj and Fleur Gibbons shared their experiences working in various renewable energy and renewable energy-related investor-state disputes, while Peter Mills discussed the most common issues which have been causing disputes in Australia and other Asia-Pacific countries. The distinguished panel was moderated by Tania Saleh of DLA Piper.
“Penetration of renewables into energy markets around the world is accelerating” said Peter Mills of Vestas Asia-Pacific, an international renewable energy company specializing in wind-power energy production. The push towards renewable energy around the world is becoming less politically driven and more economically driven, and this is being seen in Australia as well.
In a rush to implement emerging technologies, contracts may sometimes be adapted from other technologies. However, we need to be careful not to use provisions that are not entirely suitable to the new technology as they may prove detrimental should a dispute arise because of ambiguities in the contract.
Issues of modeling and infrastructure vary from country to country and culture to culture. Because the Asia Pacific is so diverse, the issues that arise regarding renewable infrastructure and grid network vary greatly. Stability of the energy grid is typically not a responsibility of the renewable energy company but will certainly affect the output and risk of the renewable systems.
Ensuring the risk profile for a renewable energy company is important because projects are entered into to make profits. Without this financial incentive, the renewable market would not thrive. As such, attention to reducing ambiguities and addressing aspects that may cause uncertainty has been important for renewable companies to properly assess risk versus reward and remain in business.
The technology is evolving very quickly and, as such, protecting intellectual property is increasingly important. Thus, renewable contracts including IP protection provisions are becoming more common as renewable energy companies have been implementing newer technologies.
The intersection of government regulation, infrastructure issues, technology-contracting, and IP issues make renewable energy disputes a complex field to navigate for ADR practitioners and lawyers alike. A big thank you to the panelists for exploring and discussing their experiences regarding renewable energy disputes today.
It’s lunch time now, but we encourage you to join us again after lunch at our next session commencing at 1:00pm (AEDT) – Avoiding Obstacles Along the Pathway to Enforcement.
1:00pm – 2:00pm – Avoiding Obstacles along the Pathway to Enforcement – Presented by AMTAC
Special Rapporteur – Christelle Santos
Getting you in the mood for all things maritime!
This afternoon, we gained fascinating insights into Avoiding Obstacles along the Pathway to Enforcement, a discussion panel steered by the Chair of the Australian Maritime and Transport Arbitration Commission (AMTAC), Mr Gregory Nell SC.
The panel began by diving into the ever-pressing issue of the enforcement of foreign arbitral awards in Energy City v Hub Street – 15-Love, or Advantage Arbitration?, exploring the implications of the decision in Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company  FCAFC 110 for arbitration in Australia. This session was presented by Geoff Farnsworth.
Mr Nell SC noted that the case represents the reigning in of pro-arbitration. The New York Convention provides that there are narrow grounds for setting aside awards. There is no place for courts to allow a higher standard of proof to set aside an award. Mr Nell made a critique that the decision and the outcome of this case as being uncommercial. Another take away was that there was no obligation for Hub Street to speak up and that their conduct to remain silent was not relevant.
Hazel Brasington and Michael Weatherley then moved to a riveting discussion on upholding the fundamental value of natural justice. We note their article on the issue – ‘Witness Gating’: Pitfalls and Possible Solutions Concerning Oral Testimony at the Hearing – explores the implications and methods to address ‘witness gating’, the shutting out of witnesses in arbitration proceedings.
In particular, they cited CBS v CBP  SGCA 4 which raises the question of whether the Buyer was granted full opportunity to present its case and whether witness gating is within the arbitrator’s general powers in the arbitral proceedings.
There were 3 crucial elements that came out of this case:
- Rule 28.1 of SCMA Rules had to be read holistically. Rule 28.1 did not give the arbitrator the right to gate witnesses or condition their appearance or choose the type of hearing in the absence of party agreement
- Case management powers of Rule 25 of the SCMA Rules – these kinds of powers limit the oral examination of witnesses but they said they do not grant arbitrators unfettered powers that would override the rules of natural justice. There must be a balance between the procedural discretion to ensure efficiency with natural justice considerations
- Determining whether that balance was properly struck would turn on the precise facts and circumstances of each case – It was found that the arbitrator fell outside of the range of what a reasonable and fair minded arbitrator would do
Michael Weatherley noted that an updated set of rules by the Singapore Chamber of Maritime Arbitration will be published in December. It will now no longer make a witness hearing mandatory. Mr Weatherley thought that the lesson here for counsel is to err on the side of caution, particularly if you are confident in the merits of your case, the short term win of excluding certain evidence may come at a high price.
The Panel session wrapped-up with an in-depth examination of Corporate Attribution in Admiralty, or the attribution of liability of individual actors to corporations, within the context of maritime law. Our panellists provided invaluable insights into the impact of corporate attribution on the operation of shipping companies, and its intersection with key maritime law principles. Sam Walpole delivered this section of the panel discussion.
Mr Walpole concluded that :
- Corporate attribution is not foreign to matters maritime
- With the growth in maritime regulatory law, statutory attribution methods will continue to grow in significance for maritime lawyers – a regulatory prosecution can rise and fall on principles of attribution
- In the broader admiralty and maritime context, an understanding of the Meridian approach to attribution is critical
- A case may well be scuttled on the rocks if corporate attribution principles need to be applied and yet one cannot link the conduct and states of mind of the relevant corporate actors to the corporate shipowner or operator
Next up, we are jumping straight into The NRF Hypothetical: Perspectives on Current Issues in International Commercial Arbitration, presented by Norton Rose Fulbright – don’t miss out on this insightful discussion!
2:00 – 3:30pm – The NRF Hypothetical: Perspectives on Current Issues in International Commercial Arbitration – Norton Rose Fulbright
Special Rapporteur – Helen Lim
Our panellists drew from their wide-ranging international expertise as practitioners and academics to offer different perspectives on these issues and how to tackle them.
The NRF Hypothetical concerned a dispute arising from Blueprint LLC (Blueprint), a pulp and paper company incorporated and existing under a hypothetical country with laws similar to that of France, and Vellum Forestry Limited (VFL), a state-owned company specialising in forestry activities and incorporated in a country with laws similar of that of the US.
Blueprint initially approached a VFL in 2016 about a joint venture to develop remote forests in Vellum. The joint venture agreement was governed by the laws of Vellum and provided for disputes to be resolved through ICC arbitration seated in Sydney. Over the course of the joint venture, the companies encountered several obstacles and delays, and the relationship between the parties had deteriorated to the point where Blueprint has now commenced ICC arbitration against VFL.
The panel delved into the most pressing, topical issues facing modern international commercial arbitration today, by discussing a practical ‘NRF Hypothetical’. Examples of topics explored by our panellists included the promotion of efficient, cost-effective proceedings, achieving fairness and commerciality in outcomes, and most interestingly, how arbitration practice has adapted to the COVID-19 pandemic. These hot topics are definitely at the forefront of everyone’s minds as we continue arbitrating through this pandemic!
The panel explored many of the potential obstacles that have arisen through a role-play of the parties involved, such that we are able to gain insight into the thinking and actions by each party in how to approach the international arbitration process from beginning to end.
Aaron Rofkahr, roleplaying as Blueprint’s in-house attorney, spoke about the potential factors to consider when an arbitrator has a considerably closer connection to one party than the other. He outlined that the “select[ion] of the arbitrator was the most important thing to consider in an arbitration” and the parties needed to consider what circumstances under the applicable laws create risks or conflicts of interests, and whether there was a necessity to place ‘Chinese walls’ to safeguard exchanges of information.
Tamlyn Mills, speaking on the behalf of VFL, discussed the implications of weighing up substantive issues and tactical issues when selecting an arbitrator. She expressed the need for an arbitrator to remain ‘independent and impartial’ pursuant to Article 11 of the ICC Rules and looking to Guideline Notes for disclosure requirements. In considering the current case where Blueprint forms a subsidiary of Blueprint LCC (parent company), the need to look at the corporate structure arrangement was important. Tactical plays of using objections is also a consideration in the process of the arbitration.
Abhinav Bhushan considered the difference between an objection and a challenge in the arbitration process and suggested the need to look at the timeline of when a challenge is confirmed. He proposed strategies as to what one should say and what one should not say in the appointment of an arbitrator and spoke lengthily on the procedural issues involved if the arbitration was to take place in different institutional contexts.
Judith Levine, roleplaying as the chairperson, also discussed the benefits and disadvantages if a Request to Joinder was submitted part way through the arbitration proceedings, and what this would mean for each party on privilege grounds during the discovery process.
Finally, a discussion of the preference for virtual/hybrid hearings in the current context took place and several factors including the costs, strategic considerations were examined to ensure there was an appropriate balance between procedural efficiency and the parties’ right to be heard.
Ultimately this session facilitated a dynamic discussion raising unique insights into arbitration practice and procedure, which all audience members will surely reflect on and possibly apply in their future practice!
The fun isn’t over, tune into the next event at 3:30pm on Insolvency and Arbitration!
3:30 – 5:00pm – Insolvency and Arbitration – ACICA Victorian Committee
Special Rapporteur – Elizabeth Cox
ACICA’s Victorian Committee presented this afternoon’s session on Insolvency & Arbitration. As government support begins to wane in the wake of the Covid-19 induced financial crisis, it is anticipated that many businesses will struggle to recover. Pre-pandemic profit margins will be a pipedream for many and it is likely that there will be a sharp rise in insolvency disputes. Due to the increasing interconnectedness of a globalised world it is highly unlikely that these disputes will be the domain of any one jurisdiction.
The panel sought to provide an overview and practical demonstration of current legal frameworks and practice in respect of the conduct of international arbitrations and enforcement of international arbitral awards. While matters pertaining to insolvency have long been considered non-arbitral and a matter for local domestic courts, the Committee noted that the intersection between arbitration and insolvency can no longer be ignored. It is difficult to separate insolvency matters from the issues that make up a dispute. Practitioners need to be able to understand and navigate these matters so as to inform their strategy and ensure their clients interests are protected.
The discussion provided valuable insights into the complex legal and procedural issues which are raised when involving local domestic courts, tribunals, counsels, the parties themselves, with the pending or actual insolvency of a party, potential party or award debtor within arbitration proceedings.
Practitioners need to consider the impact of insolvency before, during and in the enforcement of arbitration proceedings. To protect companies from a multiplicity of actions the courts would order a stay on an arbitration if a winding up order has been made. Although Francisco Malaga noted that in Spain this is not the case.
In different jurisdictions there may also be uncertainties in the period of time between the application and actual winding up of the company. If an insolvency proceeding begins before arbitration things are further complicated. There are also pre-insolvency periods that may complicate matters such as moratorium periods where the company is given a chance to rectify their financials.
Courts cannot generally bind foreign seated arbitration. However, there may be issues when parties attempt to enforce their award. In most jurisdictions, on application to the court, the awardee will be considered as a creditor. They are afforded no special treatment and are not entitled to the insolvent company’s assets as if they were not insolvent.
The panel presented an interesting discussion on how arbitration can address the insolvency of parties without creeping into the jurisdiction of domestic courts. As the global economy attempts to recover from the economic downturn caused by the pandemic, financial institutions, governments and private parties will need to be able to recover losses or risk their own operations. Arbitration can be a cost-effective means of resolving these disputes, especially when time is of the essence.
But don’t go yet! There are still three more days of Arbitration Week. If If you’re interested in how international arbitration has been impacted by the global pandemic, check out The COVID 19 Pandemic and International Arbitration: where do we stand, 18 months in? (Thurs 1:30 – 3:00pm). Or if you want further insights on the intersection of arbitration and government, you might be interested in Investor-State Disputes, Infrastructure and Construction Arbitration, and new technology in arbitral disputes (Thurs 9:00 – 10:30am).
5:00 – 6:00pm – Privacy or Secrecy? Open Justice Values as a Challenge to Arbitral Procedure – CIArb Annual Lecture 2021
The principle of open justice is an important aspect of a fair trial. Public scrutiny of proceedings ensures that the law is carried out according to the expectations of the legal community and the broader population. Alternative dispute resolution presents a challenge to this assumption as the process is often confidential and the outcome does not contribute to case law. Mr Bret Walker AO SC sought to reconcile these issues in the CIArb Annual Lecture hosted by the Chartered Institute of Arbitrators Australia, leading contributors to global arbitration scholarship. John Arthur President of CIArb introduced the eminent speaker.
In his lecture, Mr Walker challenged the established norms.The lecture provided unique insight into the various implications of two cardinal features of arbitration, privacy and expedition, which are often referred to as ‘unequivocal virtues’.
The tension between the public interest in maintaining procedural transparency and the need for confidentiality has long been a feature of the legal discipline. Arbitration seems to contradict the concept of open justice, however, as in other areas of law, there are times when public interest is overridden by other considerations. It is important that in judging dispute resolution procedures that the guiding aims of justice and fairness are maintained.
Mr Walker fielded a range of questions from his hosts and the guests attending the lecture. Questions ranged from Mr Walker’s views on the relative merits of secrecy and openness in judicial and arbitral proceedings, the potential impact on arbitrators of their decisions being open to public scrutiny and whether he was indeed disdainful of a transnational tendency or school of thought in arbitral circles and institutions that may represent a potential threat to traditional Court jurisdictions.
Damian Sturzacker, Partner at Marque Lawyers, thanked Mr Walker for his challenging and thought provoking lecture.
And that is a wrap for bumper Tuesday. We look forward to sharing more with you on Day 3 of AAW2021!
DAY 1 – 18 October 2021
9.00am – 6.00pm – New and Emerging Norms in International Commercial Arbitration – Presented by AACICA and CIArb
Australia Arbitration Week 2021 opened today with the International Arbitration Conference – New and Emerging Norms in International Commercial Arbitration – hosted by the Australian Centre of International Commercial Arbitration (ACICA) and the Chartered Institute of Arbitrators Australia (CIArb Australia).
The Conference began with a Welcome Address from the New South Wales Governor, Her Excellency the Honourable Margaret Beazley AC QC.
Climate Change is currently THE global hot topic with climate change talks coming up in Glasgow. The conference dived straight into this big issue with the plenary session – International Arbitration’s Role in Climate Change – chaired by Judith Levine (Australia ADR Awards, Arbitrator of the Year 2020). The climate panel comprised The Honourable Bob Carr, Stuart Bruce, Ilona Millar and Nicola Swan.
Technology has increasingly been at the forefront of practitioner and client thinking (for all ADR processes) throughout the pandemic, this morning’s conference session tackled the issues around The Use of Technology in International Arbitration – Challenges and Due Process. Chaired by the Honourable Justice Frances Williams, the panel comprised Erig Ng, Owain Stone and James Hoskin
The construction sector remains a big user of Arbitration, and MC Jo Delaney turned the focus from climate to Arbitration of International Construction Disputes with Duncan Miller, Jonathan Humphrey, Beth Cubitt and Victoria Hawkins as the Panellists.
What is The Case for Australia? This has been a central topic in Australia’s arbitration circle for many years. Australia continues to carve out its place and global profile in the practice of world-class International Commercial Arbitration. Australia’s practitioners and institutions shine in this highly competitive market. This session,Chaired by Iain Anderson delved into where Australia is at with its ICA ambitions. Deborah Tomkinson, Brenda Horrigan and Victor Ageev spoke on the Panel.
It’s lunch time, but we will be back later in the afternoon. We encourage you to tune into the Keynote Address by The Honourable James Spigelman AC QC.
Georgia Quick, President of ACICA introduced the Keynote Address delivered by The Honourable James Spigelman AC QC. The Honourable Justice Peter Riordan then picked up baton to Chair the session on Developments in Energy, Resources and Major Projects Disputes with Joshua Paffey, Leah Ratcliff, Rob Palmer and Byeongik (Ben) Kim.
Chaired by the Honourable Justice John Eric Middleton the next panel of The Honourable Wayne Martin AC QC, Dr Vicky Priskich, Smitha Menon and Cameron Hassall spoke on Writing Enforceable Arbitral Awards and Enforcement of Awards .
The Conference then took off ‘Around the World in 60 Minutes’ chaired by Dr. Nayla Comair-Obeid and Tom French, Swee Yen Koh, Bernard Hanotiau and Edwina Kwan contributing to a lively discussion on international initiatives. The following session tapped into the ideas of the next gen with Arbitration Incubation: Ideas from the Next Generation chaired by Kristian Maley, and Daniel Allman, Eden Jardine, James Morrison and Umika Sharma contributing their insights on what are doing and would like to do differently.
Thank you to all involved for delivering a wonderful start to Australian Arbitration Week 2021!