International Arbitration All Change, All Change.

Legal News & Analysis - Asia Pacific - Dispute Resolution

5 October, 2018

 

Arbitration is a crucial tool in dispute resolution due to the exibility and con dentiality it can o er. It is, however, not always the cheaper alternative to litigation. Companies have to bear the costs of the arbitrator(s) and the institutional costs, above their own legal fees. But funders can help by taking the risk and cash ow burden.

 

Funding arbitrations is an intrinsic part of our business, and devoting an entire edition of Harbour View to arbitration seemed an obvious step to take.

 

Such an edition would not be complete without reviewing the potential implications of the Achmea judgment on investment treaty arbitration. Professor Nikos Lavranos, EFILA, o ers his observations.

 

The arbitral world is not immune to demands to use technology to encourage e ciency, save time and indeed costs. Two obvious areas for arbitral tribunals to consider the use of technology are e-bundling and video-conferencing. We asked Dame Elizabeth Gloster, who presided over Berezovsky – a $4 billion trial using cloud-based electronic bundle technology to deal with 5,000+ documents in multiple languages – for her views.

 

Another much heard demand relates to the need to open up the process around arbitrator selection. Philippa Charles from Stewarts looks at several proposals that may help shine a light on this dark art and compares this to the information parties e ectively gather and how they do so.

 

We can all agree that e ective enforcement holds the key to a successful arbitration. It should be remembered that arbitral awards are not directly enforceable and, in the absence of voluntary compliance, judicial remedies will be required. James Ramsden QC, 39 Essex, and Nick Connon, Quintel, discuss the hurdles that can cause delay and o er solutions to reduce enforcement risk.

 

If we look what is happening worldwide, change shows its face in many guises.

 

At the beginning of August 2018, ICSID issued a Working Paper related to its proposals for amendment of the ICSID Rules with a view to continue modernisation, simplify the rules, reduce time and cost and reduce the paper burden. Written comments by the public and Member States should be submitted by 28 December 2018.

 

The Hong Kong Department of Justice released the draft Code of Practice for Funders early September and opened this up for consultation, ending 30th October. Once this code has been approved, third party funding in arbitration will be a reality in Hong Kong. 

 

The establishment of international commercial courts continues, o ering an alternative dispute resolution mechanism globally. With the newest additions opened in China, it is worth reviewing what this means for international arbitration. It is key for commercial parties to understand the di erences, and Nicholas Lingard, Kate Apostolova and Sophie Ryan from Fresh elds identify several such di erences. But is it just about competition? Could they co-exist in harmony?

 

With a view to attract foreign investment into India, the 2015 Amendments to the Arbitration Act speci ed, among other things, that the award shall be made within twelve months from the date the arbitral tribunal enters upon reference. Sherina Petit, Norton Rose Fulbright LLP, and Nosherwan Vakil, High Court Bombay, discuss the state of play three years since time limits were introduced. 

 

The time could be ripe for third party funding becoming a reality in Brazil. João Eduardo Cerdeira de Santana and Renata Duarte de Santana, CSI Associados, explain the circumstances which allow TPF to ourish there.

 

Last but not least, one of the major challenges for the arbitration community as a whole is to progress diversity in gender, age and ethnicity. How can it attract young talent? Can it move beyond the “male, pale and stale” stigma? Whom better to discuss this with than Amanda Lee, Global Chair of the Chartered Institute of Arbitrators’ (CIArb) Young Members’ Group (YMG). 

 

By Dominic Afzali, Associate Director Litigation Funding, Harbour 

 

Ashurst Logo

 

For further information, please contact:

 

Ruth Stackpool-Moore, Director of Litigation Funding / Head of Harbour Asia

ruth.sm@harbourlf.com