Participants continue to the discussion with Prof. Hobér following the 18 February seminar

Participants at the 2 December 2013 seminar with Professor Böckstiegel 

Judge Schwebel and Mr. Born 

PCA legal staff (Evgeniya Goriatcheva, Dirk Pulkowski, Aloysius Llamzon and Yanying Li) at the Investor-State Seminar on 15 January 

The snowy Peace Palace was the venue for the 15 January 2013 seminar 

Participants at Fortier Seminar 

"The United Nations as an Agent of Progress in International Law", Peace Palace, The Hague, 19 October 2012 

Judge Stephen Schwebel and Mr. Yves Fortier 

Participants applaud Mr. Fortier's presentation 

Professor Albert Jan van den Berg with PCA Assistant Legal Counsel, Yanying Li at NY Convention seminar 

PCA legal staff at the NY Convention seminar 

Professor Albert Jan van den Berg discussing with PCA Legal Counsel, Olga Boltenko at the NY Convention seminar 

Gautier Matray and Yanying Li at the NY Convention seminar 

Dutch Arbitration seminar participants 

Professor Martin Hunter, Roland Ziadé, Niuscha Bassiri, Dirk Pulkowski and Lise Bosman at the second Peace Palace lunch seminar. 

Klaus Reichert SC at the Peace Palace on 20 January, where he called for a debate on the standard of proof for claims of fraud and illegality 

Young ICCA members at the first Peace Palace seminar 

PCA Acting SG Brooks Daly chats with Hege Elisabeth Kjos of the University of Amsterdam 

PCA legal staff at the first Peace Palace seminar 


 

Seminar venue

Academy Building (third floor)
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands


Young ICCA and the PCA 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.


18 February 2014 Seminar: "The Seat of Arbitration and Lex Arbitri"

Speaker: Professor Kaj Hobér

Professor Kaj Hobér was the panelist of the eighth Young ICCA-PCA seminar that took place at the Peace Palace in the Hague.

Report by: Valentina Faienza (Intern, International Council for Commercial Arbitration)

Almost 30 young practitioners and academics from all over Europe participated in the 18 February seminar on the subject of the seat of arbitration and the lex arbitri led by Professor Kaj Hobér. Prof. Hobér, “one of the top figures in the European arbitration market”, according to Chambers & Partners has recently been appointed professor of International Investment and Trade Law at Uppsala University and is partner at Mannheimer Swartling.

Prof. Hobér started the discussion with an introduction on the historical context of the seat of arbitration and lex arbitri. He underlined how the importance of the seat of arbitration has progressively diminished over time, especially after the creation of the UNCITRAL Model Law which harmonized and formalized the arbitration law. In fact, prior to the Model Law the seat of arbitration played a fundamental role with regard to the possibility and the grounds for challenging the award. For this reason, Prof. Hobér explained, the lex arbitri was an object of discussion among practitioners in the 1980’s who were divided into two camps: one group stressed the importance of the lex arbitri, affirming that “law makes the arbitration”, whilst the opposing group emphasized the international nature of the arbitration and its delocalization. Today, the latter approach seems to have prevailed and the seat of arbitration has lost its fundamental role with regard to the challenge of the award. However, this circumstance and the existence of a harmonized arbitration law does not imply that all national courts understand and apply it in the same way. Therefore, the seat of arbitration remains to a certain extent, a relevant element.

Following Prof. Hobér’s introduction a number of participants posed questions, broadening the discussion to varying aspects of the topic. These questions were related to the harmonization and application of lex arbitri, lex arbitri and enforcement, as well as lex arbitri and party autonomy. More specially, they included the desirability and feasibility of a system of international commercial arbitration inspired by that of ICSID (i.e., fully delocalized), the application of lex arbitri in relation to standard of proof and sanction law, as well as the recent revision process of the Dutch Arbitration Act with regard to consolidation of foreign-seated arbitration. The result was a lively discussion in which the participants had the chance not only to listen to an interesting lecture by Prof. Hobér, but also to exchange views with him with regard to the topic in all its aspects.


2 December 2013 Seminar: “The differing demands on the tribunal in inter-state, investor-state and commercial arbitrations"

Speaker:  Prof. Dr. Karl-Heinz Böckstiegel

Professor Dr. Karl-Heinz Böckstiegel led a wide-ranging discussion that spanned his career experiences and views on a plethora of practical issues.

On December 2, 2013, Professor Böckstiegel conducted an interactive session for more than 35 lawyers and practitioners, who traveled from across Europe to listen to one of the world’s most preeminent and experienced arbitrators. The Seminar was organized by Young ICCA and took place at the Peace Palace, The Hague.

Click here to read the full report by Mounia B. Chadlia and Brian McGarry >> 


15 January 2013 Seminar: "Three Salient Topics in Investor-State Arbitration"

Panelists: Judge Stephen Schwebel, Mr. Gary Born and Michael Hwang, SC

The sixth Young ICCA-PCA seminar in the snowy Peace Palace on 15 January 2013 focused on "Three Salient Issues" in investor-State arbitration -- the precedential value of ICSID decisions, arbitrator bias and challenges, and consent in investment arbitration.

The title of the session was a nod to an earlier book by one of the panelists, Judge Stephen Schwebel (formerly President of the ICJ), who was joined on the panel by Mr. Gary Born (head of the arbitration practice at Wilmer Cutler Pickering in London) and by Mr. Michael Hwang (Senior Counsel and head of the bustling Michael Hwang Chambers in Singapore). The discussion was kick-started by Judge Schwebel's thoughts on the notion of precedent in the international investment arbitration system, engaging the panel and participants in a discussion on ICSID annulment committees and the notion of an appellate body. Mr. Hwang's thorough overview on the subject of arbitrator bias examined the differing standards for challenge of arbitrators in the ICSID, UNCITRAL Rules and IBA Guidelines on Conflict, sparking a debate on issue conflict and diversity in arbitral appointment. His paper can be downloaded at the link below. The session ended with discussion of consent issues led by Mr. Born.

The full house of participants was drawn from the Permanent Court of Arbitration, Iran-US Claims Tribunal and local and regional young practitioners. 

Download PDF: Issue Conflict in ICSID Arbitrations_Hwang and Lim »


19 October Peace Palace Seminar:
“The United Nations as an Agent of Progress in International Law”

Led by Mr. Yves Fortier, CC, OQ, QC

Young ICCA members and PCA staff were entertained by Yves Fortier, QC’s compelling lecture on “The United Nations as an Agent of Progress in International Law”. A prelude to the Peace Palace’s 2013 centenary celebrations, the lecture was attended not only by staff of the PCA and ICJ housed in the building, but young practitioners from international organisations in The Hague, such as the Iran-United States Claims Tribunal, and commercial practitioners. Mr. Fortier’s lecture can be viewed in the ICCA Audiovisual Library and full film footage of the lecture and participant’s questions will soon be available on the Young ICCA site.


26 June Peace Palace Seminar: The New York Convention 

Professor Dr. Albert Jan van den Berg led a lively discussion on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”).

 Report:  Yanying Li (Assistant Legal Counsel, Permanent Court of Arbitration)

A lunchtime seminar at the Peace Palace led by one of the world’s foremost authorities on the New York Convention, Professor Dr. Albert Jan van den Berg, took place on 26 June 2012. Hosted by Young ICCA, the event was well-attended by approximately 20 academics and arbitration practitioners. Professor Dr. Albert Jan van den Berg is a professor at Erasmus University and the University of Miami Law School and one of the founders of the law firm Hanotiau & van den Berg.

Three issues relating to the New York Convention were discussed at the session: (1) the interpretation of the Convention, (2) the “writing requirement” found in Art. II (2) of the Convention, and (3) the enforcement of annulled awards.  Prof. van den Berg noted that the absence of “arbitration agreement” from the title of the Convention is due to the inclusion of the provision in the Convention on the last day of negotiations.

Following a brief introduction of all the key provisions of the Convention, Prof. van den Berg focused on three methods of interpreting the Convention (i.e. the text, the drafters’ intention, and the object and purpose). Relying on the Vienna Convention on the Law of Treaties (Art. 31 & 32), he stressed that supplementary means of interpretation are only relevant to confirm the ordinary meaning or where an interpretation leads to a manifestly absurd result. Prof. van den Berg criticized the approach of many national courts (Kahn Lucas Lancaster case from the 2nd Circuit U.S. Court of Appeals) who interpret treaties without reference to the Vienna Convention and instead employ rules of statutory interpretation

Moving to the “writing requirement”, Prof. van den Berg recalled that Art. II (2) of the Convention stipulates that the term “agreement in writing” shall include an agreement signed by the parties or contained in an exchange of letters or telegrams. In his view, there exist several ways to interpret the provision. First, he made reference to Art. 7 of the 2006 UNCITRAL Model Law and the Recommendation regarding the interpretation of article II (2) and article VII (1) of the Convention adopted by UNCITRAL on 7 July 2006. He focused on the Recommendation, which provides that the word “shall include” in Art. II (2) should be interpreted as “shall include but not limited to”. A lively and interesting discussion then took place on whether the equivalent word for “shall include” is found in the French, Spanish, Chinese and Russian versions of the text, which are all equally authentic. In the end, Prof. van den Berg emphasized that, unlike the Notes of Interpretation issued by the NAFTA Free Trade Commission, UNCITRAL’s Recommendation is non-binding soft law. Secondly, Article VII (1) gives any interested party the right to enjoy a more favorable position grated by the law of the country where such award is sought to be relied upon. He cited German legislation as an example. Thirdly, an argument against the board interpretation of Art. II (2) is that the word “may” is used in Art. V of the Convention but not in Art. II.

Prof. van den Berg then turned to the issue of the enforcement of annulled awards. Following a brief discussion of a pending case involving a Mexican state entity at the Southern District Court of New York and the Yukos case at the Amsterdam Court of Appeal, he summarized five different approaches towards the enforcement of annulled awards. First, annulled awards can be enforced because the word “may” is used in Art. V. Secondly, annulled awards cannot be enforced because the word “may” in Art. V does not give courts the discretion to enforcement the annulled award. Once set aside, the award does not legally exist any more. Thirdly, some court looks at the enforceability of judgments that set aside the award made at the place of arbitration in order to determine the enforcement of annulled awards in the country of enforcement (Dutch approach). This approach was criticized by Prof. van den Berg. Fourth, annulled awards can be enforced because certain national laws do not include the New York Convention provision on setting aside (French approach). Fifth, annulled awards could be enforced under a new convention proposed by Prof. van den Berg. Art. 5 of the new convention provides that enforcement “shall” be refused if the award has been set aside on the grounds (a) to (e) mentioned in this provision (similar to the grounds in the New York Convention with the exception of public policy).

At the end of the session, participants raised questions concerning the use of “shall” in Art. III and “may” in Art. V in the New York Convention. With respect to the new draft convention, several participants expressed interest in knowing the reasons for drafting Arts. 4.2, 5.2 and 5.3 concerning the request for enforcement and grounds for refusal of enforcement.

Programme:

  1. Interpretation of the Convention.
  2. Enforcement of arbitration agreements.
  3. Enforcement of arbitral awards.

Reading List:

  1. The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)
  2. Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards
  3. www.newyorkconvention.org

21 May Peace Palace seminar: the Dutch Arbitration Act

Members of the drafting committee, Jacomijn van Haersolte-van Hof and Gerard Meijer, led an interactive and engaged discussion on proposed amendments to the Dutch Arbitration Act.

Report:  Alberto Torró Molés (Assistant Legal Counsel, Permanent Court of Arbitration)

About 20 staff members of the Permanent Court of Arbitration and local Dutch practitioners attended a lively lunchtime discussion on 21 May 2012 at the Peace Palace on proposed amendments to the Dutch Arbitration Act. Hosted by Young ICCA and the Permanent Court of Arbitration, the seminar was led by Jacomijn van Haersolte-van Hof of Hague-based boutique Haersolte-van Hof and Gerard Meijer of NautaDutilh’s Rotterdam office, both members of the Working Group that drafted the new legislation.

The seminar was divided into three parts, consisting of an initial presentation by the panelists, who then addressed the questions submitted by participants in preparation for the seminar. Describing the background to the amendment process, Prof. Meijer took the opportunity to remind the participants that this is still a draft and not a final Act; and described the long legislative path behind the amendment process. Dr. van Haersolte explained that it was the intent of the Working Group to make the law as efficient as possible, with as much party autonomy as possible, while ensuring respect for due process in the arbitrations governed by the Act.

Moving to significant choices made in the drafting process (including deviations from the UNCITRAL Model Law), the panelists explained that the amended Act is inspired by the UNCITRAL Model law. However, instead of simply adopting the Model Law, the Working Group took useful examples and attempted to come up with an improved version.

A lively and interesting discussion then took place on topics such as 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 kind of arbitrations, the law applicable to the arbitration agreement, the challenge of the arbitrators, and interim measures.

Some controversy was generated by the proposed new article 1035 of the amended Act, according to which the President of the Appeal Court shall decide on the merits of the challenge to an arbitrator. Participants debated the convenience of such a provision and the respective merits of arbitral institutions rather than courts deciding such issues. In particular, it was noted that it is the parties who decide to submit their disputes to certain institutions, and that those institutions may be in a better place to decide on the challenge, rather than a judge ignorant of the background to the dispute. In this regard, the panelists acknowledged that the provision would work better with domestic arbitrations than internationally.

Also up for discussion was the role of the secretary to the tribunal, to whom the same challenge provisions apply as those to arbitrators. The panelists noted that important work is usually carried out by the secretary, which, in their view, justifies the application of the same rules. The role of the secretary will be the subject of a panel discussion during the ICCA Conference in Singapore on 10-13 June.

The setting aside of awards was also extensively discussed. As explained by Prof. Meijer, the concentration before the Court of Appeals (as opposed to the District Court, one of the changes foreseen in the current act) should result in decisions by judges specialized in arbitration. The current requirement of depositing an arbitral award in court was discussed by the participants. While Dr. van Haersolte defended its potential usefulness, some participants framed it as an anachronism and questioned its usefulness.

Having thoroughly canvassed the more controversial aspects of the proposed legislation, panelists and participants look forward to improvements in the final text after the consultation process. The final text of the Act is not expected before 1 January 2014.

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. 

Reading List:

  1. Dutch Arbitration Act- proposed draft
  2. Dutch Arbitration Act- commentary on draft
  3. Dutch Ministry of Safety and Justice: http://www.internetconsultatie.nl/herzieningarbitragerecht

27 March Peace Palace seminar: Witness Statements and Document Production

A lively discussion was led by Niuscha Bassiri (Hanotiau & van den Berg, Brussels), Roland Ziadé (Cleary Gottlieb, Paris) and Dirk Pulkowski (Permanent Court of Arbitration, The Hague) and ICCA Member Professor Martin Hunter.

Report: Jawad Ahmad (Legal Intern, Permanent Court of Arbitration)

About 20 participants consisting of law students, lawyers and legal staff attended the lunchtime Young ICCA Seminar in the Academy Building annexed to the Peace Palace on March 27 2012. Participants were exposed to a discussion covering practical and theoretical issues with witness statements and document production in international arbitration. Young ICCA had the pleasure of having leading experts in the field sharing their perspectives and thoughts.

Roland Ziadé, Counsel at Cleary Gottlieb in Paris, launched the discussion by sharing his experience with preparing witness statements. Witness Statements have had an increasing significance in international arbitration in the last two decades. Mr Ziadé also discussed the numerous advantages witness statements have to the arbitral process. Indeed, witness statements give the party the opportunity to explain complicated facts clearly and highlight the most essential points relevant to their case. Mr Ziadé also viewed witness statements as a key component to a counsel’s overall strategy. A witness statement gives the arbitral tribunal a first impression of the facts and choosing the right witnesses based on credibility and personal knowledge can be influential.

Mr Ziadé then turned to outstanding challenges and practical issues related to witness statements. This attracted other guest speakers to comment and provide their input. Professor Martin Hunter, renowned expert and barrister at Essex Court Chambers, provided the perspective of an arbitrator at the seminar. He discussed how the arbitral process should proceed if the witness who made the statement does not appear at the hearing. For instance, the witness statement may be deleted from the record. Additionally, Dirk Pulkowski, Legal Counsel at the Permanent Court of Arbitration in The Hague, shared his experience as registrar for arbitral tribunals. Mr Pulkowski stated that parties (or their counsel) often seemed to prefer naming corporate senior officers as witnesses rather than lower ranking officers. Yet the tribunal would benefit from lower ranking officials too because they can provide a complete understanding of the facts. Furthermore, Niuscha Bassiri, Partner at Hanotiau & van den Berg in Brussels, pointed out that lawyers from civil law jurisdictions encounter ethical problems with witness preparations. This generated much engagement from the participants and a bustling dialogue amongst the guest speakers.

Mr Ziadé concluded with useful tips on how to prepare witness statements. A chronological approach makes sense, but it is important to strike the right balance between detail and relevant facts to the dispute. Furthermore, it is helpful to interview the witness early on while the facts are fresh in his/her mind. Finally, Mr Ziadé’s personal preference is to have the witness write the first draft in his/her own words and then to interact with him/her to draw out his/her story more effectively.

Afterwards, Ms Bassiri took the floor and gave an insightful presentation on document production. While document production is not new to common law jurisdictions, it has become increasingly important in civil law jurisdictions. Document production in international arbitration is part of case management and requires taking the parties’ and counsels’ background into account to get an idea on what they are used to. Costs, timing and how documents should be produced are important factors to consider during this process.

Ms Bassiri then provided the requirements of a successful document disclosure request. Among other considerations, documents have to be identifiable and sufficiently specified. The party must have actual possession of the documents because some can get lost during mergers and even fall into the hands of third parties. This started an interesting debate on how the arbitral process can deal with recovering documents from third parties. Professor Hunter stated that the tribunal has no power to order a third party to produce documents. Counsel should look to where the third party is situated to establish whether the local courts can order the third party to produce these documents.

Ms Bassiri then turned to document production within the context of investor-State arbitrations and invited Mr Pulkowski for comments. A State party can invoke certain privileges to prevent document production in investor-State cases. Tribunals have been strong on upholding, for instance, the deliberative process privilege for states where matters concern national security. However, it is unclear exactly where the line should be drawn for allowing a State party to refuse document production. While it is uncontroversial that the deliberative process privilege protects matters concerning national security, it is less clear to what extent the privilege extends to communications in, for example, an administrative agency.

In conclusion, Ms Bassiri discussed the right to rebut statements made by the opposition by reference to documents. An opposing party often has key documents in its possession which are central to rebut statements made by them. Tribunals are reluctant to undermine the right to rebut and, therefore, have been willing to grant requests to produce these documents from an opposing party.

Reading List:

  • Jennifer Kirby, “Witness Preparation: Memory and Storytelling” in Journal of International Arbitration, 28(4): 401-406. (2011)
  • Roland Ziadé and Charles-Henri De Taffin, “Fact Witnesses in International Arbitration” in RDAI./IBLJ, No. 2, 115- 134. (2010)
  • Working Party of the Arbitration Committee, IBA Council, “IBA Rules on Taking of Evidence in International Arbitration,” International Bar Association (2010)
  • Michael Schneider, “Twenty-four Theses about Witness Testimony in International Arbitration and Cross-Examination Unbound” in Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About – ASA (Swiss Arbitration Association) Special Series No. 35, Chapter 5. (August 2011)
  • Procedural Order No. 6 of 11 June 2002 in Arbitration Tribunal Established Pursuant to Article XV of the Agreement Signed at The Hague on 20 January 1930.
  • Decision on Parties’ Requests for Production of Documents Withheld on Grounds of Privilege of 17 November 2005 in Glamis Gold, Ltd. v. The United States of America.
  • Procedural Order No. 3. of 8 April 2009 in Vito G. Gallo and Government of Canada.

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).