On this blog, I have previously (here and here) questioned existing practices for how arbitrators are selected and argued that a new approach is both necessary and long overdue. To briefly recap those previous posts, the selection of arbitrators is one of the most sensitive and critical moments in an arbitration. Arbitrators not only decide substantive outcomes of disputes, but also are vested with extraordinary discretion to determine a range of issues that affect how the arbitration will proceed—from the scope of arbitral jurisdiction, to how the applicable law is selected, to the procedures for adducing evidence, to the availability of interim relief, to how costs and fees are awarded. [...]
The most quintessential element of international arbitration is an impartial, independent and neutral tribunal. Where impartiality and independence of the arbitrators is equated with direct relation to or bias towards one of the parties, neutrality is related to the nationality of the arbitrator. In international sphere, the “appearance of neutrality” is considered equally important, meaning an arbitrator is neutral if his nationality is different from that of the parties. Nationality generally, is not an issue if the parties have agreed to appoint an arbitrator of the same nationality as that of one of the parties but it has a different impact when national courts acts as the appointing [...]
The Danish Institute of Arbitration (“DIA”) revised its rules effective May 1, 2013, an overhaul from the prior 2008 iteration of its rules that brings the DIA rules into line with those of leading arbitral institutions. As part of these revisions, the DIA has both reorganized the structure of its rules and updated various key provisions. Among other changes, notable amendments include new provisions for the consolidation of cases and joinder of parties, new guidelines for arbitrator independence, and new provisions for the appointment of interim and emergency arbitrators.
Overall, the DIA has clearly made an effort to make its arbitral rules friendlier to international disputes. Th [...]
Improving the search for information about arbitrators
Last week I received an invite to a summer gathering organized by English mediator, David Richbell. One of the events is “Speed dating: Senior mediators including, amongst others, Michel Kallipetis, Liz Birch, Nicholas Pryor available for ten-minute personal interview.”
Imagine how such an innovative method for choosing an arbitrator might work: How long do you think an arbitration should last? Do think it is appropriate for a tribunal to decide dispositive issues at the outset of a proceeding? Ding!
Would parties say you manage proceedings with a firm hand?
[Announcer] “Time’s up! Please move to your next candidate.”
How long do you think an arbitration should last?
Do think it is appropriate for a tribunal to decide dispositive issues at the outset of a proceeding?
A new study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration less often and relying more on mediated negotiation and other approaches aimed at resolving disputes informally, quickly and inexpensively. The 2011 survey of corporate counsel developed by researchers at Cornell University’s Scheinman Institute on Conflict Resolution, the Straus Institute for Dispute Resolution at Pepperdine University School of Law, and the International Institute for Conflict Prevention & Resolution (CPR) produced results that appear to be strongly reflective of U.S. practices and trends, but thoughtful practitioners and scholars will [...]
by Kah Cheong Lye (Partner) and Chuan Tat Yeo (Associate), Norton Rose (Asia) LLP
Like computer programs, the length of time between updates for institutional rules seems to get shorter and shorter. New editions of institutional arbitral rules were introduced by the SIAC in 2010, the ICC in 2012, and the HKIAC’s revised Administered Arbitration Rules (Draft HKIAC Rules) are expected in the first quarter of 2013. A general theme in recent revisions is the desire of institutions to “brand” their arbitrations, and to move away from institutions being a mere postbox and appointing authority. Institutions now want the power to shape the arbitral process.
An expression of this them [...]