Throughout 2012, Young ICCA will host a series of informal Lunchtime Seminars at the Peace Palace on topics of interest to young practitioners, featuring presentations by ICCA Members and Young ICCA Advisory Members

Second seminar on Dutch Arbitration Act to be held on 7 March

The second in the Young ICCA Peace Palace Lunchtime Seminar Series will be held on Wednesday 7 March at the Peace Palace. Seminar leaders Jacomijn van Haersolte-van Hof and Gerard Meijer will lead a discussion on proposed amendments to the Dutch Arbitration Act.

Programme:

1. The background to the present legislation and the amendment process;
2. Significant choices made in the drafting process (including deviations from the UNCITRAL Model Law); and
3. The way in which the current and proposed legislation provide for issues such as: arbitrability; confidentiality; the setting aside of arbitral awards and the consequences thereof; the deposit requirement and how it applies to different kinds of arbitrations; the law applicable to the arbitration agreement; the challenge of arbitrators; and interim measures. 

Venue: Academy Building, Peace Palace
Time: 12:30-14:00
Registration: hpin@pca-cpa.org

Inaugural seminar on proving a case in international arbitration: report

Report: Hinda Rabkin (Assistant Legal Counsel, Permanent Court of Arbitration)

About 20 people attended the inaugural lunchtime Young ICCA Seminar in the Academy Building annexed to the Peace Palace. The participants were treated to an interesting and carefully thought-out presentation on proving one’s case in international arbitration. Klaus Reichert SC speaks with the wealth of experience he has gained working in international arbitration and was able to describe the way to prove one’s case in international arbitration, and the difficulty of pleading and proving fraud.

Mr. Reichert began by explaining that, unlike in a common law court, a case in international arbitration is proved principally through contemporaneous documentary evidence, rather than witness testimony. Indeed, the case ought to have already been presented in the written submissions made prior to the hearing. The hearing in arbitration is not the time to make one’s case anew. Rather, it is an opportunity to focus on certain points and to use the face time to convince the arbitral tribunal of your points together with the testing of the witnesses through cross-examination. Witness testimony, in practice a very expensive pursuit, should only be used for contentious points. Post-hearing briefs, according to Mr. Reichert, are often unnecessary, and it is a polite fiction that they neatly wrap up the case or help clarify further issues.

Arbitrators (Mr. Reichert being one himself) are often indulgent as to how parties conduct their case, which contrasts with the position in very robust national courts. However, carefully crafted procedural orders, an example of which was provided to the participants, can help ensure smooth running of the case and clarify the tribunal’s expectations as to the conduct of the proceedings.

Mr. Reichert lastly addressed the pleading by States of fraud and illegality in investment arbitration cases. He argued that States plead fraud and criminality with frequency against the investors. There is much doubt as to what level of proof substantiates such claims particularly considering their consequences. Fraud or illegality is a criminal allegation to which a high standard of proof should be applied. Mr. Reichert further noted that it is rare that there will be an admission of bribery as in the World Duty Free  v. The Republic of Kenya case, and yet States continue to allege such misconduct with broadly drawn argument and evidence which would be not be sustainable in, for example, a national criminal court. Mr. Reichert called for a curtailment of such claims and for a recognition of the seriousness of such an allegation. How this would be brought about may require a detailed study and discussion at a forum such as an ICCA Conference or other occasions of substantial international law discourse. 

Programme:

1. Presentation of cases (argument and evidence) in international arbitration – memorials with all witnesses, experts and documents.
2. Contrast with court pleading systems (where the evidence is formally tendered at the trial).
3. The current issue of fraud or illegality as raised in investor-State arbitration without proper particulars or proof.
4.  Potential solutions.
5.  Q&A session.

Reading List:

1. Draft procedural order;
2. Extract from Redfern and Hunter on International Arbitration, chapter 6; and
3. Abby Cohen Smutny and Petr Polášek, "Unlawful or Bad Faith Conduct as a Bar to Claims in Investment Arbitration" in J. Werner et al. (eds.), A Liber Amicorum: Thomas Wälde – Law Beyond Conventional Thought, Cameron May (2009).