Usually, the new literature brings up the rear of “Highlights,” but, maybe because it’s the end of the year, the journals are booming. So, today we’ll turn to current scholarship.
Best Practices in On-line Dispute Resolution
A Task Force of the ABA’s Section on Dispute Resolution, chaired by David Allen Larson, Amy Schmitz, and Alan Weiner, has just finished three years of work with the publication of “Guidance for Online Dispute Resolution.” The work is comprehensive, providing insight into considerations from system design right through security. Since we all now live a large part of our professional lives, whether as neutrals or advocates, on Zoom and other screens, the article is an important read as we pick the platforms on which we work. It is available on the Section’s website or at odr-guidance.pdf (americanbar.org).
Making Arbitration Work
The International Bar Association’s “Dispute Resolution International” Journal has published the keynote address which Juliet Blanch presented at the 23rd Annual IBA Arbitration Day in Istanbul, Blanch, Tuning Up: Making Arbitration Fit for the Future, 16 DRI 138 (2022). The article recognizes that “many of the traditional reasons for choosing arbitration are slowly being eroded: arbitration is not always quicker than litigation and in some jurisdictions the presumption of confidentiality no longer applies and the much-vaunted flexibility that was the mainstay of arbitration seems only rarely to be reality.” Her recommendations go beyond the usual rubrics as she suggests an “arbitrator academy,” similar to “judge school,” that would teach necessary skills; methods of arbitrator performance appraisal; a private forum at which arbitrators could share experiences; and recognition of “cognitive diversity” when constituting panels. This is one of the best think pieces I’ve seen on how to improve the process of arbitration and move it from “litigation sitting down.” Whether you agree with Blanch’s conclusions, she will make you think. You can find the article on Lexis at Tuning Up: Making Arbitration Fit for the Future (lexis.com)
Another presentation at Arbitration Day focused on procedural orders and the management of an arbitration. Georges Affaki has published a paper “inspired by” that panel, Affaki, Commencing the Arbitration: An Arbitrator’s Perspective on Procedural Order No. 1, 16 DRI 159 (2022), Commencing the Arbitration: An Arbitrator’s Perspective on Procedural Order No 1 (lexis.com). The title undersells the scope of the article. Affaki proposes a timetable for the various conferences which are – or should be – held during the course of an arbitration. Two ideas are particularly interesting. One is a “settlement window” or “mediation window,” when the parties would slow down in order to “confer on whether any settlement could be contemplated to resolve the dispute.” While institution rules may encourage mediation, see e.g., AAA Commercial Rule 10; ICDR Article 6, building a formal mediation process into the pre-hearing process may better focus the parties on resolving the dispute. Timing of the “window” would be important, as, in any mediation, the parties need to have enough time to exchange relevant information, but they can’t get so far down the road that the financial incentive to reduce costs is eroded. A second suggestion, which is particularly relevant in this day of remote hearings. is what he calls a “Reed Retreat,” named after arbitrator Lucy Reed. This would be a meeting of the arbitrators where they could “discuss the case including their doubts, concerns and questions, and agree on a list of issues which could be circulated to the parties ahead of the [merits] hearing.” The article’s footnotes lead to a wealth of other thinking.
Choice of Law in International Arbitration
Wee Min has contributed a deep and thoughtful piece on an important question in international arbitrations – what is the applicable rule for resolving the always important question of the choice of substantive law? She reviews possible options – the rules of the state that would have jurisdiction absent an arbitration clause, the rules of the arbitrator’s home state, the rules of the country where the award will be enforced, and a “cumulative approach” that considers all possible options before selecting among them. The author concludes that the best approach is the application of the choice of law rules of the arbitral seat. In support, she adopts a very practical approach. “The concept of an arbitral seat has been a long-lasting and surviving concept in international arbitration,” she argues. To apply the conflict of laws principles of that seat continues that momentum. As the author recognizes, this rule would add one more complexity to the negotiations over the seat of the arbitration, as advocates or drafters would need to consider which possible seat has conflict rules favoring their client. Everyone involved in international arbitration should read the article. It is nuanced, thoughtful, and well-researched. Even if you disagree with its conclusions, it will make you think about an issue that receives to little attention. You can find it at COMMENTARY: DETERMINING THE LAW APPLICABLE TO THE MERITS IN INTERNATIONAL ARBITRATION, 54 N.Y.U. J. Int’l L. & Pol. 1101 (lexis.com)
While domestic litigation has fully developed guidelines to test the reliability of expert testimony, such as the Daubert standards in the U.S., international arbitration has yet to develop rich processes. Mirna Monia addresses the issue in her article in Dispute Resolution International, Monia, Testing the Reliability of Expert Evidence in International Arbitration, 16 DRI 169 (2022). After reviewing the tests in England and Wales, the U.S., and France (a civil law jurisdiction), she addresses the paucity of such rules in international arbitration. She proposes solutions through the establishment of expert rules by arbitration and professional organizations, censure by professional associations, and an expert’s code of conduct. Perhaps the most aspirational of her suggestions is the concept that “party-appointed experts may be swayed from excessively partisan behaviour by the reputational damage which can be caused by misleading testimony. . . .” Those of us who practice in the U.S., where professional experts become “frequent flyers” testifying constantly for one side of an issue, would probably take a more jaundiced view. You can find the article at Testing the Reliability of Expert Evidence in International Arbitration (lexis.com) Again, there is ample footnoting that will lead you deeper into the scholarship.
Section 1782 Discovery
SCOTUS has clearly held that discovery is not available under 28 U.S.C. § 1782 for use in private international arbitrations. An article in a recent Construction Law International publication provides a good summary of the holding, United States: US Supreme Court Determines that section 1782 does not grant access to US discovery in aid of most international commercial and investor-state arbitration proceedings, 17-2 CLINT 11. Unfortunately, the article does not indicate its author. At the end of the piece, the author raises the now-recurring question of “when an arbitral tribunal is imbued with specific governmental authority” to qualify as a “foreign or international tribunal.” The issue is beginning to appear and can be expected to be more frequent in cases arising under ICSID rules. As the authors warn, “it would be wrong to conclude that ZF Automotive is the last we hear of Section 1782 and practitioners in the field of international arbitration and even international construction disputes should continue to keep their ears to the ground.” I would extend that same warning to outside and in-house counsel who might find their domestic clients served with a subpoena to appear at a deposition related to an investor state arbitration. The article can be found at United States; US Supreme Court Determines that section 1782 does not grant access to US discovery in aid of most international commercial and investor-state arbitration proceedings (lexis.com)
With the courts coming back from the long Thanksgiving weekend, I expect we’ll see a number of opinions this week and will return to the usual case-oriented format on Thursday or Friday. In the meantime, hopefully you take a little time to catch up on some scholarship in our field.
David A. Reif, FCIArb