Despite the novelty and best intentions of the U.K. initiative, the Code has been strongly criticized both for its non-binding character and its lack of detail. Both the U.S. Chamber of Commerce’s Institute for Legal Reform (“ILR”) and the European Justice Forum (“EJF”) have expressed concern that the Code is not a sufficient replacement for the development of binding, official regulation of third-party funders in litigation. While these critiques focus mostly on ramifications of the Code for litigation funding, the concerns they raise also have implications for international arbitration, where third-party funding increasingly is in use.

In a report issued on 22 December 2011, just one month after the Code was released (available at http://www.instituteforlegalreform.com/doc/ilr-comments-on-the-code-of-conduct-for-litigation-funders), the ILR expressed concerns about (1) the voluntary and self-regulatory nature of the Code; (2) the potential conflicts of interest for counsel raised by funding, including the degree of control a Funder may directly or indirectly exert over the litigation; and (3) the lack of protection for potential defendants. The ILR enunciated a preference that “litigation funding should be discouraged in all circumstances,” but urged that if allowed to occur at all, funding should be strictly regulated through official channels (ILR Comments at 9).

The ILR criticism of the Code centers on the belief that its self-regulating nature undercuts its efficacy. In particular, the ILR points to the lack of any disciplinary mechanism in the Code as a barrier to its effectiveness as a regulatory tool (ILR Comments at 2). Additionally, the ILR argues that the Code’s definition of “Funder” is under-inclusive and creates the potential for abuse (ILR Comments at 2-3). At the least, the ILR urges a cap on the fees that a third-party funder may charge and a requirement that all litigation funding agreements (“LFAs”) be in writing to protect litigants who use third-party funding (ILR Comments at 4, 8).

The European Justice Forum issued comments on 26 February 2010, before the final version of the U.K. Code of Conduct was released (see http://europeanjusticeforum.org/faq/current-issues/costs-of-litigation.html). Nonetheless, the EJF Comments reflect some of the same discomfort with the voluntary nature of effort at self-regulation voiced by the ILR. In their criticisms of the Code, the ILR and EJF both emphasize the potential for conflict of interest created when legal counsel develops close relationships with third-party funders. Thus, while the Code requires the “Funder” to ensure that the “Litigant” receives outside legal advice regarding the terms of an LFA, its critics note that such a legal advisor also may have a pecuniary interest in the funding of the claim. This is particularly problematic if the same advisor is also counsel to the Litigant in the underlying dispute and thus dependent on funding to be arranged in order to earn prospective legal fees from the representation (ILR Comments at 4, 8; EJF Comments at 11).

The ILR also notes that the Code does not address the issue of referral fees between Funders and attorneys and strongly urges a ban on such fees. In fact, both the ILR and EJF argue that the Funder should have no contractual relationship with the Litigant’s counsel and that all LFAs should be strictly between the Funder and the Litigant in order to reduce the risk that the Funder and counsel would collude to “maximize their own profits” (ILR Comments at 8; see also EJF Comments at 11). Along this same line, the ILR would prohibit Funders from owning or being owned by law firms, a practice which apparently already is occurring in England (see, e.g., http://www.cdr-news.com/litigation/109-articles/1132-barristers-join-third-party-litigation-funding-bandwagon). These proposed measures seek to delineate guidelines that are not expressly contemplated by the Code for interactions between Litigants, Funders, and outside counsel.

The ILR also expresses concern over the lack of protection for defendants in the Code (ILR Comments at 5-6). While the Code ensures that the funded Litigant is informed about the terms of the agreement and is funded by a party with adequate financial resources, it does little to protect the potential defendant from frivolous or unsubstantiated litigation brought in order to increase leverage for a settlement. In particular, the ILR argues that without a prohibition on funding of collective actions, the Code leaves potential defendants exposed to the threat of large collective suits which may prove lucrative for attorneys and funders by increasing pressure for settelements, even if the underlying claims ultimately lack legal merit (ILR Comments at 7). The EJF likewise has expressed concern over the potential for one-way cost shifting in collective claims (EJF Comments at 3).

Even aside from collective claims, the ILR points out that a defendant seeking to recover an award of adverse costs may be unable to do so, because the Code does not require Funders to support Litigants’ liability for cost awards. Indeed, the Code stipulates only that any liability of the Funder for such costs must be stated in the LFA (Code, clause 8). Since Funders may decline to guarantee payment of an adverse cost award, the ILR asserts that a potential defendant is left vulnerable not only to being dragged into a frivolous claim that might not have been pursued in the absence of third-party funding, but also to being unable to recover the costs it would incur defending such a suit, even if the adjudicator ultimately rules in the defendant’s favor and awards costs against the impecunious claimant.

The concerns highlighted by the ILR and EJF center on litigation, but recent debates through Global Arbitration Review, on OGEMID and in other fora have drawn attention to persisting questions about the Code’s applicability in the context of international arbitration as well. In particular, it is unclear whether a litigant would be required to disclose the existence of a third-party funding arrangement to the adverse party, the administering institution, or potential arbitrators. This uncertainty, creates the possibility of undisclosed conflicts that could threaten the fairness or enforceability of awards down the road. In some cases, disclosure may proceed transparently and thus lessen the probability of conflicts surfacing only late in the case. This occurred recently in the investment arbitration Oxus Gold PLC v. Republic of Uzbekistan et al., conducted under the UNCITRAL Rules. Nonetheless, the Code is silent on the issue of disclosure, leaving it entirely to the discretion and judgment of the parties concerned.

Indeed, during the recent Global Arbitration Review roundtable discussion on third-party funding, one third-party funder expressed concern that transparency could have negative consequences, including the risk that the opposing party’s knowledge of financing arrangements could lead it to raise abusive arguments aimed solely at extending the length and increasing the costs of the case. Others in the arbitration community have suggested that knowledge of an opposing party’s use of outside funding could influence a party’s evaluation of the reasonableness of settlement offers. Concerns about disclosure have also touched on the possibility that tribunals themselves could be influenced by this information with respect to whether to order security for costs during the course of an arbitration, or to assess liability at the close of proceedings against an unsuccessful litigant for the prevailing party’s costs. The third-party funder, of course, will not be subject to the tribunal’s jurisdiction, and not liable to fund an order for costs, absent voluntary agreement to do so in the LFA it negotiated with the litigant at the outset of its involvement.

In short, while the U.K. Code may be a welcome first step in attempting to impose some voluntary order on a process and set of relationships that heretofore have been entirely unregulated, many questions remain. It remains to be seen how the practice will evolve in the arbitration arena, in the wake of both the Code and increasing public attention and debate. One thing is certain however: whether regulated or not, the use of third-party funding in major arbitration cases is a development that is here to stay. The genie is out of the bottle, and no one in the arbitration community has suggested that it ever may be persuaded to return.

By Jean E. Kalicki, Amy Endicott and Natalia Giraldo-Carrillo

Third-party funding is understood as a “nascent” but growing industry involving the funding of litigation or arbitration by specialized providers who are neither parties to the dispute nor closely connected with it, and whose sole interest is potential profit in return for providing financing. The potentially high awards in certain commercial and investment arbitrations have attracted funding providers. Claimants likewise have been drawn to third-party funding to provide access to justice where litigation costs otherwise might be prohibitive and obtain an early independent assessment of the merits of a potential claim.

It is not yet clear how workable the model will prove for respondents in arbitration. By definition, respondents would be required to reward funders for their investment in successful defenses, in exchange for hedging against the costs of unsuccessful proceedings. This proposition is unlikely to be attractive to sovereign State respondents who may have difficulty politically justifying State payments to foreign financing companies, particularly for frivolous cases. However, in the purely commercial context, funders participating in a recent Global Arbitration Review roundtable suggested that shareholders of some respondent companies have proven receptive to shouldering the higher costs of third-party funding, particularly as cases approach the later stages of arbitration.

The U.K. particular has experienced huge growth in the number of investment funds willing to invest in both litigation and arbitration. While no country has developed an official binding system of regulation, funding providers in the U.K. have established an industry organization, the Association of Litigation Funders of England and Wales (“ALF”), which in November 2011 released a proposed Code of Conduct for its members (available at http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc/third-party-funding). Membership in the ALF is voluntary but requires compliance with the Code’s “standards of practice and behaviour” for those who choose to join. Supporters of the Code have suggested that while membership and thus compliance with the Code remains optional, in practice most funders are likely to join because clients will likely hesitate to contract with funders that operate outside of the ALF and the industry standards it sets.

The Code consists of ten principles that regulate the formation, use and termination of litigation funding agreements (“LFAs”), which, once signed, are contractually binding for “funding of resolution of disputes within England and Wales” (clause 6). It is unclear whether this language refers solely to the location of the funder or the litigant being funded (“funding . . . within England and Wales”), or also to the situs of the dispute proceedings (“disputes within England and Wales”). This ambiguity raises the possibility that non-U.K. funders may feel pressure to join the ALF also, so that they can offer services to U.K. litigants or foreign litigants in arbitrations seated in the U.K.

The Code defines “Funder” as either an entity with immediate control over funds or an entity that acts as the exclusive investment advisor to a investment fund with immediate control over funds. These funds must be sufficient to enable each funded party (the “Litigants” as defined in the Code) to meet the cost of resolving their disputes in litigation or arbitration (clause 2). To this end, the Code requires a Funder to ensure that its funds are adequate to pay debts at all times and to cover funding liabilities under its LFAs for at least thirty-six months (clause 7(d)(ii)). The drafters added the thirty-six-month funding requirement in response to concerns raised about an earlier draft, which required adequate funding only for three months. The Code is vague as to how this “adequate funds” requirement is determined, since reasonable minds can differ about the value of aggressive but costly litigation strategies. The Code states that a Funder shall “not seek to influence the Litigant’s solicitor or barrister to cede control or conduct of the dispute to the Funder” (Clause 7(c)), but this is unlikely to require the Funder to guarantee a “blank check” for any and all litigation strategies. Nor is the Funder required to meet any liability of the Litigant to provide security for the opposing party’s costs, to pay premiums to enable that Litigant to obtain insurance against possible future awards of costs, or to finance such cost awards. To the extent the Funder agrees to assume such responsibilities, the extent of its liability must be recorded in the LFA (clause 8).

In return for funding a Litigant’s claim, the Funder is entitled to a share of the proceeds if the claim is successful (clause 2(a)). By the same token, the Funder is prohibited from seeking payment in excess of the proceeds of a successful claim, unless the Litigant is in “material breach” of the LFA (clause 2(b)), a term which is not defined in the Code.

The Code also loosely defines the role of the Funder, and the limits of its role.. The Funder must refrain from taking steps “likely to cause” the Litigant’s attorney to violate his professional duties or to influence that attorney to cede control of the dispute (clause 7(b) and (c)). In referencing the professional duties of attorneys, the Code implicitly refers to U.K. ethics rules for solicitors and barristers that have specific regulations on fee sharing and referrals. It is unclear, however, whether and how this provision of the Code would apply to non-U.K. attorneys participating in arbitrations seated in England and Wales, or working with third-party funders and clients based in those jurisdictions. The Code also requires the Funder—who may insist on broad access to information in order to assess the merits of the claim and conduct of the litigation—to observe the confidentiality of all information as defined by relevant law and the LFA (clause 5) and states that the terms of the LFA shall control the extent of the Funder’s ability to provide input on the Litigant’s decisions in relation to settlement (clause 9(a)).

The Code also requires the LFA to state whether and how the Funder can terminate the agreement (clause 9(b)). If the LFA grants the Funder the right to terminate the agreement, that right is limited to three circumstances (clause 9(b)). First, the LFA may provide a method for termination if the Funder “reasonably” ceases to be satisfied with the merits of the dispute. Second, the LFA may provide a mechanism for termination if the Funder “reasonably” believes that the dispute is no longer commercially viable. Third, the LFA may allow the Funder to terminate it if the Funder “reasonably” believes the Litigant is in material breach. Though the Code offers no definition of a “reasonable” belief, it limits the Funder’s discretion to terminate to these grounds (clause 10). If the Funder nonetheless does terminate the LFA, it remains liable for all funding obligations accrued to the date of termination, unless termination arises from the Litigant’s material breach (clause 11(a)). In the event a dispute arises over termination of the LFA, the parties may obtain a binding opinion from a Queen’s Council (clause 11(b)).

Finally, the Code prohibits Funders from using any misleading or unclear literature to promote these agreements to potential clients (clause 4). Additionally, any Funder must take reasonable steps to ensure that the Litigant receives independent advice on the terms of the LFA. This requirement may be satisfied if the Litigant confirms in writing that it has taken advice from the solicitor instructed in the underlying dispute (clause 7(a)).

As the Code was released only in late November of 2011, much remains to be seen about its eventual use and interpretation in international arbitration proceedings, and the nature of any disputes that subsequently arise. While the international arbitration community has acknowledged the Code as an important first step towards fulfilling the potential of litigation funding to provide greater access to justice, concerns remain. The next post will discuss some of the criticisms of the Code—particularly about lack of detail and non-binding status—raised by the U.S. Chamber of Commerce Institute for Legal Reform and the European Justice Forum (the latter in comments on an earlier draft of the Code), as well as persisting questions about its applicability to international arbitration, including with respect to important issues of disclosure.

By Jean E. Kalicki, Amy Endicott and Natalia Giraldo-Carrillo

First, what more can the institutions do to resolve proceedings more efficiently? At the outset, they must be more proactive in confirming arbitrator availability. The institutions already remind arbitrators that availability is a critical feature of their qualification to serve. The ICC now requires them to provide data about other cases in which they serve. Before proposing arbitrators to the parties, ICSID asks them to confirm sufficient availability in the next 18-24 months. The ICDR reminds its rosters that this is a requirement for accepting appointments.

But this simply isn’t enough. I have never seen an arbitrator decline an appointment based on general questions like “do you have time?” or “how many other cases do you have?” Why not a more concrete requirement that candidates block out, on a simple calendar covering the periods for which hearings might be anticipated, all of the actual dates for which they are unavailable — whatever the reason? Arbitrators have scheduling conflicts that have nothing to do with the number of appointments they’ve accepted. Many of us teach, or serve as counsel, or have other professional commitments. All of us — I would hope — have families and friends, and take vacations from time to time. These priorities block out time just as surely as other arbitrations. The CPR, when asked to appoint arbitrators, often requires them to list the specific days on which they have conflicts, during the months when a hearing is anticipated. That exercise concentrates the mind, and leads to more meaningful disclosure than a general requirement to confirm availability. I urge the institutions to consider the same kind of specific disclosure. I would not expect them to ask potential arbitrators the reasons for unavailability, just simply the dates. But that one step will go a long way.

Indeed, I would go further, and suggest that similar questions be asked of party-appointed arbitrators, and not just institutional appointees, before their appointments are confirmed. One would hope parties themselves are asking specific questions about availability, but they may not feel comfortable doing so. There is no reason the institutions could not distribute blank calendars as a matter of course, and circulate the responses to the parties for comment before confirming a tribunal’s constitution. That would make parties think twice about appointing arbitrators whom they should know are phenomenally busy. And it would make potential arbitrators examine the parties’ concrete scheduling needs, instead of falling back on a knee-jerk reaction that there is always enough time for one more appointment.

Institutions also could do more in forcing arbitrators to render decisions promptly. The ICDR Rules contain no specific deadline, the way the AAA Commercial Rules do — they just urge tribunals to be prompt. The ICC has a stated deadline of six months from the Terms of Reference, but it is honored often in the breach, although the new Rules do require tribunals to indicate when a draft award may be submitted to the ICC Court. For ICSID, there’s a stated 120 day deadline, extendable by another 60, but it runs from the “close of proceedings,” an all too malleable concept. I have seen ICC cases where the award was issued more than a year after final hearings. I have seen ICSID tribunals instruct the parties that no further submissions are needed, but still wait 18 months to declare the proceedings closed — coincidentally just when they are finally ready to render their ruling. This is game playing. It is a fairly transparent way to simply stop the clock even from beginning to run. There is no reason institutions should not police this more actively. They should regularly ask tribunals after the hearing whether they have requested additional submissions, and if answer is no — or as soon as the last scheduled submissions are received — they should urge tribunals to declare the record closed, reminding them of their responsibility to move quickly on the award.

But even with these changes, there is a limit to how fast the institutions can move proceedings along, unless the parties and their counsel also step up to the plate. Institutional reforms always will be a mere drop in the bucket, unless the users of the system also reform their expectations and practices.

The 2011 Chartered Institute of Arbitrators cost survey revealed that fully three-quarters of the costs of arbitration were spent on outside counsel. Users agree that the system takes too long, but in the same breath, they are generally determined to have three arbitrators, which invariably increases time and cost beyond using just one. They also too often revert to the easy presumption that the “safest” choice will always be to appoint the world’s most prestigious arbitrators, regardless of the scheduling implications. In part this is a function of a perceived need to “race to the top,” to appoint an arbitrator who is more famous than the other side’s, and then to appoint a chair who is even more esteemed than the first two. But the result is predictable. No matter how much the institutions work to broaden their own pools of arbitrators — and they are doing this — cases will not proceed more efficiently if the parties themselves continue to appoint only those candidates whose schedules predictably are the most burdened.

But there is more involved than simply daring to think outside the box in arbitral appointments. When faced with an important dispute, many users demand — or at least acquiesce in their outside counsel’s recommendation — that they leave no evidentiary stone unturned, and no remotely plausible point un-argued. There is all too often a tendency to seek every possible procedural advantage, rather than working together to achieve a result that is efficient as well as fair and reasonable.

The challenge for parties and their counsel, therefore, is to recognize that they too have a responsibility of self-discipline. Arbitration is a flexible process, and like all such processes, it involves choices. The new ICC Rules oblige the parties, and not just the tribunal, to conduct proceedings in an expeditious and cost effective manner. But words alone will not do the trick, when parties perceive their self-interest lies in fighting every possible battle and briefing every possible issue.

There is no easy solution for this challenge. Some parties seek to tie themselves to the mast in advance of a dispute, by agreeing to arbitration clauses with extremely expedited timetables and rigid limits on document exchange. This can work, but it can also lead to regret, when the parties discover that the dispute that arose is not the one they anticipated, and the constraints they negotiated no longer suit the circumstances of the case. Another option is to leave the clause simple, but to negotiate reasonable procedures immediately after the dispute has arisen. One of the real tools arbitrators have is to promote such negotiations, asking the parties to confer on an expeditious schedule even before coming to a case management conference. Having the underlying clients at such conferences can help, because often delays are driven more by outside counsel’s schedules than by inherent case requirements. And self-restraint by counsel also should be rewarded. The Debevoise & Plimpton Protocol to Promote Efficiency in International Arbitration is more than just good marketing. It also sends a message internally, within a counsel team, that efficiency is an important policy goal separate and apart from winning at all costs.

Where, then, do I end up, in my progress report on efforts to control time and costs? It is to recognize that the hardest tasks lie ahead. I admire the ways the ICDR, ICC and ICSID have risen to the occasion, and I hope they will do more. But there is a limit to what institutions can do to restrain a system that by its very nature is largely controlled by parties and their counsel — and by the very arbitrators they themselves select. The next chapter must involve internal reflection by the users of the system. That is essential if we are ever to move beyond the mere tightening of institutional rules, to restore the image of arbitration as efficient and cost-effective, and not just as neutral and enforceable.

My reflections in these posts draw on remarks I offered at last week’s AAA-ICDR/ICC/ICSID Joint Colloquium, at which I was asked to address the topic of time and costs from the institutions’ perspective. That might seem an odd task for someone who has never worked at any of these organizations. But I’ve been fortunate to have a good view of all three, sitting as arbitrator and appearing as counsel. It has been said that from the outside looking in you can never understand — but from the inside looking out you can never explain. So as some sort of hybrid of outsider and insider, I have tried both to understand and explain the institutional perspective, while pressing nonetheless for further action both by the institutions and by other key stakeholders in the arbitral process.

I begin with a few basic principles.

First, there’s no denying that users of international arbitration are frustrated. Arbitration is still seen as the best mechanism to ensure neutrality and enforceability for international disputes. But a 2010 study of the Corporate Counsel International Arbitration Group found that 100% of participants believe that it “takes too long” and also “costs too much.” These complaints are of course related. It’s a truism that a given task — whether presenting a case as counsel, or resolving it as arbitrator — will take as much time as one realistically has available to accomplish it. Without limits on the duration of arbitrations, therefore, it is practically impossible to control their cost, short of fixed-fee arrangements at every level in the process.

Second, there is a disconnect between the root sources of delay and cost, and users’ expectations for a solution. The 2010 Queen Mary Survey of “Choices in International Arbitration” found that users believe the parties (and not the institutions) are largely responsible for cost and delay — but they nonetheless look to institutions to guide the solution. That is not surprising: in sport, we expect the umpires to ensure proper play. But at the end of the day, it is the players who will either take the game to new heights, or leave the fans despairing of the game.

Third, the institutions have stepped up to the plate — to continue the sports metaphor a little longer. Over the last five years we’ve seen an extraordinary number of studies and task forces on this topic, but it has not been just talk. There have been numerous real initiatives. From the ICC, we’ve seen the 2007 suggested Techniques for Controlling Time and Costs, and now the revised 2012 Rules. From the ICDR, we’ve seen the 2009 Rules amendment and before that the 2008 Guidelines for Arbitrators Concerning Exchanges of Information — which was a particularly welcome initiative, given the perception that it is American lawyers who are chiefly driving the explosion of “discovery” in arbitration. From ICSID, we’ve seen numerous efficiency initiatives in recent years, which have resulted in a remarkable reduction in the average duration of cases. The statistics show that disputes concluded during ICSID’s 2011 fiscal year on average took 12 months less than cases concluded during the previous year — whether one measures from the time of registration or from tribunal constitution. That’s an extraordinary result. The ICDR also has seen a dramatic reduction in the length of its international cases, from 395 days in 2006 to 304 days in 2010. I don’t have similar statistics from the ICC, but I would expect its initiatives also to bear fruit.

Since institutions nonetheless are an easy target for criticism, let me highlight some of the practical steps they have taken, in four basic areas.

First, at the outset of a case. ICSID has started to put its own house in order. It has reduced the average time to register a case to 27 days. The new ICC Rules require parties to provide more information upfront to expedite early processing of a case, and has introduced a “gateway” procedure so prima facie challenges to the agreement to arbitrate can be referred directly to the tribunal, rather than awaiting formal review by the ICC Court.

Second, constitution of the tribunal. Much of the time here is driven by the parties themselves, since most appointments are made directly and not through the institutions. But when the institutions are needed to play a role, they are doing so faster. The ICC Court now has direct powers of appointment if a national committee fails to do its job promptly, or where one of the parties is a State entity. The ICDR is turning around its lists of prospective arbitrators more quickly than in the past. And ICSID has reduced the average time to constitute a tribunal to 6 weeks from the date it is asked to do so.

Third, case management conferences. The ICDR has long required a preliminary conference, and suggested agendas that include early identification of preliminary motions or sequencing of issues. The new ICC Rules now make case management conferences mandatory. ICSID has always required First Sessions to organize proceedings, but no amount of planning at that stage could prevent delay, when the old rules required automatic suspension of merits proceedings for any and all jurisdictional objections. The 2006 Rules revision empowered tribunals to decide for themselves whether suspending the merits would or would not increase efficiency.

Finally, document exchange. As the Queen Mary survey found, this is one of the stages most likely to result in delay and added cost. But both the 2008 ICDR Guidelines and the new ICC Rules remind arbitrators of their responsibility to carefully police this stage, and that they can use their discretion in cost assessment as a possible control mechanism.

There is more, however, that the institutions can do. Two areas stand out: arbitrator availability at the outset, and arbitrator diligence in rendering awards at the end. In my next post, I’ll offer some concrete suggestions in both areas, as well as a cautionary note about the limits to which any institutional reforms can fully address the related problems of time and cost, without greater self-discipline (and a modicum of internal reflection) by the users of the system themselves.

Maintenance refers to the funding or providing of financial assistance to a holder of a claim, which allows the claim to be legally pursued, when the funder or provider of financial assistance holds no connection or valid interest in the claim itself. Champerty takes it one step further by adding that this funder or financial provider has a direct financial interest in the outcome of the claim. Here the funder provides the money in exchange for a portion of the damages should the claim prevail. The reasons surrounding why these acts were considered morally and ethically against public policy such as to make them illegal can best be described by the following quotes.

In 1843, Jeremy Bentham was quoted when describing the circumstances surrounding the origination of maintenance and champerty. He stated, “A mischief, in those times it seems but too common, though a mischief not to be cured by such laws, was, that a man would buy a weak claim, in hopes that power might convert it into a strong one, and that the sword of a baron, stalking into court with a rabble of retainers at his feet, might strike terror into the eyes of a judge upon the bench. At present, what cares an English judge for the swords of a hundred barons? Neither fearing nor hoping, hating nor loving, the judge of our days is ready with equal phlegm to administer, upon all occasions, that system, whatever it be, of justice or injustice, which the law has put into his hands.”

This description of the doctrine’s birth circumstances was later echoed in 1908 in the case of British Cash and Parcel Conveyors v Lamson Store Service Co, “The truth of the matter is that the common law doctrine of maintenance took its origin several centuries ago and was formulated by text-writers and defined by legal decisions in such a way as to indicate plainly the views entertained on the subject by the courts of those days. But these decisions were based on the notions then existing as to public policy and the proper mode of conducting legal proceedings. These notions have long since passed away, and it is indisputable that the old common law of maintenance is to a large extent obsolete.” The final sentence in British Cash reveals already the changing landscape of this public policy, reflecting the more modern perspective.

Therefore, it is quite clear that very distinct circumstances arising out of times past led to the public policy doctrine of maintenance and champerty. This doctrine resulted in both civil and criminal penalties. However, in modern times the courts grew more relaxed towards this doctrine (as noted in the final sentence quoted above from British Cash).

The next logical question to ask is, does this principle of maintenance and champerty extend to arbitration. With respect to the United Kingdom, the answer appears to be yes.

In arbitration, even though it is a private dispute resolution mechanism which allows parties to avoid some of the constraints encountered when appearing before the courts, there are also several similarities. Arbitrators do consider and decide disputes similar to judges in the national courts. Arbitration, and in particular international arbitration, can involve large amounts of damages, such as is commonly involved before the courts and judges. Moreover, arbitral awards are just as binding as court judgments and have less ability to appeal (at least in the United Kingdom and arguably most other jurisdictions which are parties to the New York Convention of 1958). Despite these evident similarities, the concept of maintenance and champerty and its relationship to arbitration was not clearly decided until 1998.

In the case of Bevan Ashford v Geoff Yeandle, the Vice Chancellor Sir Richard Scott stated prohibition on contingency fees does extend to arbitration, when he said

“Arbitration proceedings are a form of litigation. The lis prosecuted in an arbitration will be a lis that could, had the parties preferred, have been prosecuted in court. The law of champerty has its origins in, and must still be based upon, perceptions of the requirements of public policy. I find it quite impossible to discern any difference between court proceedings in the one hand and arbitration proceedings on the other that would cause contingency fee agreements to offend public policy in the former case but not in the latter. In principle and on authority, the law of champerty ought to apply, in my judgment, to arbitration proceedings as it applies to proceedings in court. If it is contrary to public policy to traffic in causes of action without a sufficient interest to sustain the transaction, what does it matter if the cause of action is to be prosecuted in court or in an arbitration? If it is contrary to public policy for a lawyer engaged to prosecute a cause of action to agree that if the claim fails he will be paid nothing but that if the claim succeeds he will receive higher fee than normal, what difference can it make whether the claim is prosecuted in court or in an arbitration?”

Although the tort and criminal laws pertaining to champerty and maintenance have been abolished in the originating jurisdiction, the principles of common law champerty and maintenance applying to funding agreements remain. They also extend to private dispute resolution methods, such as arbitration. Many other jurisdictions, though, either do not follow these principles of maintenance and champerty or do not consider a private dispute resolution mechanism subject to principles which bind parties in a court setting.

In discussing this very situation with representatives of countries in Latin America, including Brazil, I received mixed reports. First, they had not encountered a market for third party funding in their respective jurisdictions and guessed that it would be unlikely that one would thrive due to the instability of the region. Another pointed out, though, that with respect to international arbitration, it would not be a problem as this is completely private. However, at least one other attorney felt contrary. The attitude seemed to be – if it is not specifically allowed per law, assume it is not allowed.

In contrast, in the United States there is variation amongst all the fifty states, with some still clinging to maintenance and champerty and others not in varying degrees. Some argue that third party funding should not thrive in the United States and others openly welcome it, within certain constraints…I would be interested in hearing from the readers how their respective jurisdictions would view third party funding in litigation or international arbitration. Is there a distinction between the public dispute resolution mechanism (ie the court systems) and the private (ie international arbitration)?

How does it work? A fund is created which operates to finance a dispute proceeding. This includes covering the attorneys’ fees and the tribunal’s fees. In exchange, the fund shares a portion of the awarded damages, but also takes on the risk that no damages are awarded. It is possible that the third party funder will also cover the costs of the winning party, which in large part may depend on the agreement involved and the norm of the applicable jurisdiction. In the United Kingdom, for example, the norm is that the loser pays; however, in the United States the loser only pays if a statute indicates such, which is definitely not the norm. This may or may not control the terms of the agreement with the funder, but is interesting nonetheless.

Could this be the answer to greater access to justice? Possibly, but not all claims are created equal. And, when looking at it from an investor’s standpoint, not all are worth the risk. Therefore, a significant amount of due diligence may be required early on in the process. The funders are going to want to know the ins and outs of the claim – whatever is available. This means already knowing and planning the entire case strategy – which witnesses are available and what can they say? What documentation exists? How likely is it that this claim will succeed on the merits? And, if it does, (and arguably most importantly) what do the damages look like? This often means bringing in valuation experts to already access the quantum stage. Often funders are looking for a claim with a likely success rate of 60% or even more.

In other words, a deep, thorough look into the party’s claim and its likelihood of success may already happen very early on –perhaps even before the request for arbitration is filed. Of course, evaluating and researching a case is always an important part of an attorney’s process from the start, but this may require already being “prepared” for presenting everything to the third party funder, right from the start. Moreover, the funders will consider the reliability of the damages being collected. What is the asset situation of the other party and how does their history on paying up look? In other words, what does the other party’s credit look like?

It is easy to already see what kinds of concerns and considerations could arise. Not only ethically but just the practical aspects. Timing may be very important when bringing a claim and not knowing about financing the claim may delay the timing. On the other hand, of course, this could provide a very appealing alternative to a client bearing the entire financial risk. There are presumably many worthwhile claims that may not go pursued in part or even entirely due to the funding limitations.
To date, my experience has been only with third party funders as they have traditionally developed – those focusing on claims with large damages (large enough to provide them with a significant return after paying the costs of the proceedings). There are often claims from parties who neither have the cash flow to handle a full proceeding (despite a great likelihood of success), but whose prospective damages, although small to BigLaw or third party funders, are nevertheless quite a large sum from the perspective of the client – this then begs the questions, does it matter? Would the costs of the attorneys make a smaller claim simply not economically smart anyhow? Not always, with the recent rise in boutique law firms offering more competitive rates and flexible billing structures, smaller claims which are simply too small for BigLaw, have a viable chance at pursing a claim with a price tag more appropriate for their claim.

Are there also funders popping up who may also be in a position to target these smaller clients? From the financial risk-return-rewards and economic reality of pooling the funds to finance the funder itself, is it possible? I welcome comments and input on this.

After the general introduction from ASA President Michael E. Schneider, Lara Bander and Mehtap Tari Hirt, two post-graduate students from the Master of Advanced Studies in International Dispute Settlement (MIDS) in Geneva, presented the results of an elaborate questionnaire directed to arbitral institutions all over the world. Twenty-one institutions responded, including the ICC, Swiss Chambers Court of Arbitration and Mediation, LCIA, WIPO, ICSID and SCC. As examples of the results obtained, the speakers reported that the institutions generally check whether there is an arbitration agreement in existence or that some institutions stated that they have no power to refuse to confirm an appointment on the basis of information that they may possess. It was also reportedly very rare for arbitrators to be removed by the institutions and many institutions were said to ask arbitrators for the reasons for delay where this occurred. Some ask for information as to the availability of the arbitrator before appointment, though this is rare. There is generally no control on procedural decisions, and scrutiny is limited to formal comments if any, the ICC being the exception in that it also provides substantive comments.

In addition, there is general agreement among the arbitral institutions that the split in the costs of the arbitration is very similar to that published by the ICC recently, namely: 82% for counsels’ fees and expenses, 16% for the arbitrators’ fees and 2% for the institutions’ fees. There is generally no offer of liability insurance by the institutions and institutions were reluctant to discuss their budget, and origin of funds.

Regarding the origin and gender of arbitrators, Bander and Hirt stated the institutions had conveyed that the first five favourite nationalities for arbitrators are Swiss, French, American, Dutch and German and less than 10% of arbitrators appointed are women.

A panel followed on the organisation of the arbitral institutions with particular reference to independence, funding, operations, and the role at the commencement of the arbitration.

Urs Weber-Stecher (Wenger & Vieli) kicked-off with a list of eight “basic principles to be respected by arbitral institutions in order to meet proper corporate governance requirements and objective standards of fairness”. Independence from any other body, organization or industry group, the efficient assignment of tasks and the possibility of appeal on important decisions were cited as some of the principles. It was also stated that the body electing the members of the arbitration body supervising and administering the arbitration proceedings must have the legitimacy and acceptance of the arbitration community and the typical users of arbitration as well as being a transparent and objective process.

Anne Véronique Schlaepfer (Schellenberg Wittmer) discussed the role of the institution at the commencement of the proceedings. It was noted that the institution has a key role at this stage and if something goes astray, it may be very difficult or even impossible to bring the proceedings back on track. For instance, if the institution refuses to accept a notice of arbitration because it erroneously considers that there is manifestly no agreement to arbitrate under the Swiss Rules, it will be the end of the proceeding. This, according to Schlaepfer, is a jurisdictional and not an administrative decision.

A debate later ensued between Phillipe Pinsolle (Shearman & Sterling) and Simon Greenberg (Deputy General Counsel, International Court of Arbitration, ICC) as to whether the decision by arbitral institution to disallow a case to proceed to arbitration on the basis of a manifest lack of an arbitration agreement was a jurisdictional decision or not. Greenberg stated that while it may technically be a jurisdictional decision, this was not the terminology used by the ICC. Greenberg recalled a case in which the ICC determined that the case should not proceed to arbitration on the basis of article 6(2) of the ICC Rules, a decision which was then challenged and overturned by the courts of New York. The ICC was thereafter required to allow the arbitration to proceed. Pinsolle stated that such recourse would not have been available in jurisdictions such as France and Switzerland. (On the other hand, the arbitral award itself could be challenged if the arbitral tribunal wrongly accepts or declines jurisdiction, irrespective of a prior decision of the ICC under article 6(2), – see Swiss Federal Supreme Court, 4A_376/2008, ASA Bulletin 2009, 745)

The following panel discussed the appointment, confirmation, removal and replacement of arbitrators.

Juliet Blanch (Weil, Gotshal & Manges) raised a series of very interesting questions on the topic of appointment and confirmation. On pre-appointment disclosure, for example, Blanch noted that WIPO, ACICA and the Cairo Regional Centre for International Commercial Arbitration all allege in the responses to the questionnaire prepared by the MIDS students that they verify the information disclosed by the arbitrator. Blanch noted that this raises the question as to whether these institutions would become liable if they were negligent in such verification.

Blanch referred to the issue of having a barrister on the tribunal who was from the same chambers as a barrister acting as counsel. In Blanch’s opinion this raises real concerns given that a chamber now markets its barristers under its banner and a clerk will market the Chambers to potential clients on behalf of all the barristers in them.

In the ensuing debate, Peter Leaver QC (Chairman of Board, LCIA) suggested a solution in order to avoid last-minute potential conflicts of interest where barristers who were in the same chambers as an arbitrator were requested to act as counsel late on in the proceedings. Leaver would write into a procedural order that the parties must within 48 hours of any change in their legal representation advise the tribunal of the same.

Nathalie Voser (Schellenberg Wittmer) gave a presentation on the removal and replacement of arbitrators. First, Voser discussed the decision of the Swiss Supreme Court of 29 October 2010 (DSC 136 III 605) where the Supreme Court found that the same standard of independence and impartiality applied to a party appointed arbitrator and to a chairperson.

The decision of the Supreme Court of 10 June 2010 (4A_458/2009) was also referred to. This CAS case involved football player, Adrian Mutu, and Chelsea Football Club where a first arbitration decision favoured Chelsea confirming a breach of the employment contract by Adrian Mutu. Chelsea then claimed compensation for breach of employment contract in a second arbitration. The chairman of the first arbitration was appointed by Chelsea as an arbitrator in the second arbitration. Substantial damages were awarded to Chelsea. Mutu requested the Swiss Supreme Court to set the decision aside. Mutu argued that the arbitrators appointed by Chelsea in the second arbitration was partial as he had presided over the first arbitration. Voser explained that the Supreme Court, in dismissing the request for annulment did not address the right issues as it limited its analysis to the issue of pre-judgment by the appointed arbitrator. In particular, Voser asked whether the issue to be looked at was not in fact whether arbitrators where in a position of “equality of information”, a position adopted by the ICC Court when confirming arbitrators and/or deciding on challenges. The Supreme Court, Voser said, went very far in confirming the arbitral award and in her opinion it does appear questionable that Chelsea could appoint the former chair of a panel who rendered a decision favorable to Chelsea in the very same dispute.

The third panel of the day looked into supervision and quality control of the arbitration by the arbitral institutions.

Daniel Hochstrasser (Bär & Karrer) addressed the control of the efficient conduct and quality of the proceedings. He touched upon a range of issues.

For example, as to the question of whether institution should refuse to confirm an arbitrator simply because he or she is known to be subject to a heavy workload, Hochstrasser stated that party appointed arbitrators are rarely the reason for delay and even high-profile arbitrators are usually responsive and provide efficient input.

Time limits imposed on the rendering of an award were remarked to be of little effect. Although institutions insist on the establishment of the schedule at the outset of the arbitration, there is no input from the institutions in the procedure chosen by the tribunal/parties. Hochstrasser suggested that it might make sense for institutions to influence the number of written submissions, the bifurcation of proceedings and document production requests, particularly in small cases. Hochstrasser regretted that institutions are rarely involved in discussions with the tribunal on the procedure chosen. It was suggested that should the institution find that extremely long deadlines are being set, it could intervene.

Greenberg then talked about the specific experience of the ICC in the scrutiny of awards. Greenberg explained that the first level of scrutiny is by the ICC counsel assigned to the case, though it can be carried out by ICC deputy counsel if counsel is away. The next level of scrutiny is carried out by management, normally the deputy secretary general or the secretary general. The award thereafter goes to the ICC Court for a further review. At the ICC Court, the discussion centres on the substantive comments rather than the procedural or formal comments by the Secretariat. It is however not always clear whether the comments are formal or substantial. In any event, three things can occur in relation to the substantive comments when these are communicated to the tribunal: i) the tribunal accepts them; ii) the tribunal informs the ICC that it has made a mistake and the ICC then withdraws the comment; iii) the tribunal does not accept the comment. The second and third possibilities rarely occur.

Greenberg expressed his conviction that the scrutiny process improves awards, though there are two main drawbacks: i) there is delay; the scrutiny process at the ICC should take no more than 2-3 weeks, though it has been the case in the past that it has taken up to 4-5 months; and ii) interference with the tribunals’ liberty of decision. Greenberg stated that in order to improve the scrutiny process there could be more training, further feedback from arbitrators and a continual search for ways to improve our efficiency.

The fourth and last panel related to costs and liability.

Wolfgang Peter (Python Peter) spoke on cost control and the striking the balance between cost efficiency for the parties and fair remuneration of the arbitrators.

As a measure of the disproportion between the arbitrator’s fees and the other arbitration costs, Peter mentioned that it is often the case that experts charge higher fees than arbitrators. Peter also mentioned that in a recent ICSID case counsel had charged more than $40 million for the jurisdictional phase and that in recent case in which he was involved where $140 million was in dispute, the parties had charged $21 million in fees.

Remuneration of arbitrators on an ad valorem basis was said to have to particular problems. The first is that Peter believes that arbitrators have a lot more work on each case than in the past because of the way international arbitration has evolved; yet the system has not taken account of this. The second is that there are issues of allocation of fees between arbitrators where one arbitrator may carry out very little of the work yet still be awarded a substantial portion of the overall fees.

However, a time based system was also said to be problematic. In particular, should there also be a cap on the hourly rate charged by an arbitrator? This would disadvantage younger practitioners in Peter’s view.

Currency fluctuation was said to be a particular issue. From 2005 to today, Peter remarked, the US dollar has dropped in value against the value of all the major currencies in the world. For example against the Swiss franc it has dropped 60% and against the Australian dollar it has dropped 50%.

Michael Moser, in the ensuing debate, referred to the situation of arbitrator remuneration at CIETAC, where arbitrator remuneration is extremely slight. As an example, in a claim for $10 million, $100,000 would go to CIETAC out of which $25,000 would remunerate the arbitrators. Moser stated that as a result, the following words from the Bible were apt to describe potential arbitrator’s willingness to act in CIETAC arbitrations: “Many are called, but few are chosen”.

Professor Hans Van Houtte (Iran-United States Claims Tribunal) spoke of the liability of arbitrators and institutions. He started off by pointing out that the threats of liability are part of the charged atmosphere that exists in international arbitration. Indeed, it is the case that annulment of a decision is no longer felt to be a sufficient remedy.

The liability of an arbitrator will depend on the seat of the arbitration, Van Houtte said. In common law systems it is considered that arbitrators have the same liability as judges which is normally on the basis of wilful misconduct or gross negligence.

In civil law systems, the basis of any liability is based on the contract said to exist between arbitrators and the parties and can derive from a failure to abide by the three tasks entrusted to arbitrators namely: to render a decision; to render a good decision; to behave diligently.

Van Houtte referred to the liability of arbitral institutions. Possible areas in which an arbitral institution could be found liable include where the institution has wrongly refused a case on the basis that the claim lacks a valid arbitration clause or where it accepts the case only for the award to be later annulled because the arbitration clause was invalid.

Richard W. Naimark (Senior Vice President, AAA) remarked that in the United States there has been a long history of attempts at holding institutions and arbitrators liable. A doctrine of quasi-judicial immunity which derives from judicial immunity exists.

The articles by the speakers in this conference will be published by ASA in an upcoming Special Series volume.

By Matthias Scherer and Jaime Gallego

“What did they spend it on? Regardless of the nature of the dispute and the amount of money that a party spent (whether claimant or respondent), the cost breakdown by percent was remarkably much the same. Six cost categories were listed in the survey; Chart 12 illustrates the percentages allocated to each one. 74% of party costs were spent on external legal costs (including where applicable barristers’ fees), with the remaining 26% spread across the other headings. For example, as Chart 12 indicates, out of a total expenditure of £1,000,000, the costs a party would incur might be distributed as follows:
■ £740,000 for external legal fees
■ £100,000 for experts’ fees and expenses
■ £80,000 for external expenses
■ £50,000 for witness fees
■ £30,000 for management costs”

“Of the 74% of costs referred to on the preceding page, Chart 13 shows that, irrespective of the nature of the dispute, parties spent 19% on the pre-commencement/commencement of the arbitration, 25% on the ex-change of pleadings, 5% on discovery, 14% on fact and expert witnesses,* and the remaining 37% on the hearing (before, during and after). To illustrate the practical application of these percentages, a party with external legal costs of £740,000 might have spent:
■ £140,600 on pre-com/com work
■ £185,000 on the exchange of pleadings
■ £37,000 on discovery
■ £103,600 on witness costs
■ £273,800 on the hearing (before, during and after)”

It has also been correctly stated that “[w]hether or not concerns about international arbitral efficiency are exaggerated, the international arbitration community must face this discontent and, more importantly, take steps to maintain its legitimacy with its users.”³

The problems of cost and delay in high value disputes are not, however, new subjects. In 1989 Lord Mustill posed the following (largely rhetorical) questions with respect to high value commercial arbitrations:

Do the parties work together to achieve a result which is fair and sensible in commercial terms, or do they not rather seek out every procedural advantage to ensure that they win, regardless of the merits? Do the parties really want a speedy decision, or will not the defendant spin out the arbitration for as long as possible? Are the proceedings any longer imbued by informality, or do they not have all the elephantine laboriousness of an action in court, without the saving grace of the exasperated judge’s power to bang together the heads of recalcitrant parties⁴

Building on the foundations laid in the 1985 UNCITRAL Model Law,⁵ the major sets of arbitral rules have gradually evolved over the last 20 years to clarify: (i) the extent to which parties are obliged to conduct arbitrations in a timely and cost efficient manner; and (ii) the circumstances in which arbitral tribunals may in fact be empowered to bang parties’ heads together.⁶

The most recent step in that evolution was the publication of the revised ICC Rules on September 12, 2011, which come into effect from January 2012.

Article 22(1) of the new ICC Rules states:

The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.

Article 22(1) thus contains an explicit contractual obligation on the parties to conduct their arbitration in a ‘proportionate’ manner. More often than not, however, when large sums of money are at stake and experienced counsel are engaged on both sides, at least one of the parties has a rational incentive to ‘intensively litigate’ the dispute, thus increasing costs and causing delays.

Once a dispute has arisen, it is unrealistic to expect either party to act contrary to its self-interest in pursuit of the ‘higher ideal’ of arbitral efficiency. In such situations, time and costs are best kept in check by empowering tribunals to take ‘proportionality’-based case management decisions. The existence of such a power is common to most modern sets of rules, and is contained in Article 22(2) of the new ICC Rules:

The innovation with regard to case management in the new Rules is Article 24, which makes it mandatory for the tribunal to convene an initial “case management conference to consult the parties on procedural measures” which may be held “in person, by video conference, telephone or similar means of communication”. Article 24 also suggests that the tribunal may adopt one or more of the case management techniques described in Appendix IV.

Appendix IV contains a useful summary of case management techniques (such as bifurcation, limiting document requests, and limiting the length and scope of written submissions and witness evidence). It also emphasizes that “[a]ppropriate control of time and cost is important in all cases. In cases of low complexity and low value, it is particularly important to ensure that time and costs are proportionate to what is at stake in the dispute.”

While the case management techniques set out in Appendix IV will be familiar to all experienced arbitration practitioners, the ‘codification’ fulfils at least two important functions. First, it can reasonably be expected that the explicit encouragement to use such techniques will increase their use by less experienced arbitrators. Second, the explicit enunciation of case management techniques serves further to legitimize their use and hence to insulate awards from challenge on due process grounds.

One member of the CCIAG has suggested that “[t]o fix arbitration, practitioners must return the process to its original state as a streamlined option for dispute resolution.”⁷ In practice, it is likely impossible to reverse the trend by which arbitration has absorbed certain features of litigation, but it remains realistic to hope that tribunals (which, unlike the national court judge, will see through a case from beginning to end) will use their case management powers to ensure that the procedure is as streamlined a possible.

Paul Friedland and Paul Brumpton, White & Case LLP

The Chartered Institute of Arbitrators (CIArb) has launched a major survey into the costs of international arbitration. The ‘Costs of Arbitration’ survey will gather data to inform parties, legal representatives and arbitrators about the overall costs of international commercial arbitration and how these are incurred at each stage.

The results will be analysed and presented at an international conference organised by CIArb and sponsored by Alvarez & Marsal on 27 – 28 September 2011 in London, aimed at uncovering ways in which costs might be reduced and the process streamlined to become more cost-effective and efficient.

International arbitration has a justifiable reputation as the preferred method of dispute resolution for international commercial disputes. The worldwide economic downturn has accelerated a rising trend in favour of the use of international arbitration, where the enforceability of awards under the New York Convention gives it a major advantage over litigation in national courts. Globally, governments have invested in bringing their arbitration laws up-to-date and building modern arbitration centres to capitalise
on this growing market.

However, as the size and complexity of disputes referred to international arbitration has increased, so too have concerns about the growing complexity, cost and time involved in the process, diminishing some of the very factors that make it preferable to the courts for commercial dispute resolution.

CIArb’s Costs of Arbitration survey will play a key role in understanding the present position and, together with the international conference on the Costs of International Arbitration, finding ways of tackling the problem and reducing the costs of arbitration.

Doug Jones SC FCIArb, Vice President of CIArb, a leading Chartered Arbitrator and a member of the organising committee for the conference said: “We invite all legal representatives, in-house counsel and arbitral tribunal members to contribute to this major survey into costs in international arbitration. The survey report and conference will provide an invaluable contribution to the debate on costs, helping to generate proposals to restore speed and cost-effectiveness to the arbitration process. This is essential if international arbitration is to maintain its position as the commercial dispute resolution method of choice.

“To make the survey effective, we need corporate counsel, party representatives, arbitrators and tribunal members to give us as much data as possible on arbitrations in which they have been involved.”

All participants in the survey will receive a report of the survey findings and a discount on the cost of attending the conference.

The launch of CIArb’s survey reflects the sustained growth of international arbitration worldwide and its importance to global corporations. Last month Queen Mary University of London released the findings of its 2010 survey exploring the factors that influence corporate choices about arbitration. CIArb’s survey will focus specifically on the crucial aspect of costs, a factor not specifically examined in the Queen Mary survey but one which is becoming ever more critical to all businesses, especially in the present economic climate.

The conference will assemble an array of distinguished speakers to discuss the impact of costs in different jurisdictions and sectors. It will include contributions from all those involved in the process, from in-house counsel in the commercial, construction, maritime and oil and gas sectors to lawyers, arbitrators and expert witnesses.

It will be an essential date in the diary for all practitioners, corporate counsel, chief executives, commercial and finance directors, international trade lawyers, investment advisers, policymakers and contract drafters.

To complete the Costs in Arbitration Survey (party representatives or arbitral tribunal members) please visit here.

To find out more information about CIArb’s Costs of International Arbitration conference or to register your interest, please visit CIArb’s conference site here.