What the Rules Don't Tell You: Part 1: International Centre for Dispute Resolution (ICDR) [CC]

What the Rules Don't Tell You: Part 1: International Centre for Dispute Resolution (ICDR) [CC] — CLE 90 min

Every competent advocate will know the rules of the arbitral institution. But what about the practices and procedures - institutional habits - that are not in the rules? This is the first in a series of webinars providing unprecedented insight into the unwritten aspects of eighteen major international arbitral institutions around the globe.

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Closed Captioned.

This program will provide unprecedented insight into the unwritten aspects of arbitration at the International Centre for Dispute Resolution (ICDR).

Some of the most controversial issues to be discussed relate to the selection and performance of arbitrators. There is often a certain lack of transparency of institutional policy when it comes to the selection process. This issue will be discussed especially with a view to provide advice for (young) professionals on how to get their (first) appointment as an arbitrator at the ICDR and institutional expectations. On the other hand, the handling of non-confirmations and challenges of arbitrators as well as the practice of black-listing of arbitrators will be addressed. The panel will also share their experience with institutional arbitrator training programs and steps taken to promote diversity of arbitral appointments.

Another important topic revolves around the question of party autonomy and flexibility of the ICDR rules. In this regard, the panel will discuss the boundaries of party autonomy especially with regards to hybrid arbitration agreements, where the parties place the administration of the proceedings in the hands of one arbitral institution by using the rules of another institution. Furthermore, the possibilities to consolidate compatible international arbitration proceedings subject to different institutional arbitration rules into one proceeding administered only by the ICDR applying its own institutional rules will be explored. In particular, this concerns the right timing of consolidation applications, the applicable criteria to determine when arbitral proceedings are sufficiently related to warrant cross-institution consolidation and who should make that decision. In light of the pandemic and its adverse financial impact on parties, third-party funding has become increasingly relevant for parties as a way to finance their arbitration proceedings. In this regard, the panel will discuss whether disclosure of the existence of funding and the name of the funder is necessary or recommended as well as potential thresholds for conflicts of interest for arbitrators.

Furthermore, the program will take a look at a number of difficult issues that can arise in the course of ICDR proceedings. For example, virtual hearings have become increasingly relevant in the course of the pandemic and this put a spotlight on the ICDR's attitude towards handling and supporting these hearings. The rise of virtual hearings has also led to the increased importance of effective sanctions and measures during the proceedings to deal with dilatory tactics, non-cooperating parties and guerilla tactics. The panel will share their experience on how to deal with these tactics. Another interesting topic revolves around the question to what extent the tribunal is required (or should) guide and instruct the parties in the course of ICDR proceedings. In particular, to what extent should the tribunal encourage efficiency and the facilitation of a settlement (apart from express provisions in the rules)?

The program will further discuss the ICDR's process for planning (e.g. cost advances), determining and assessing the reasonability of arbitrator compensation and expenses with a particular view to the factors that are to be considered. What will be of particular interest is the ICDR's role and policy in connection with awarding attorney fees, inhouse legal costs and expert costs. Another main question will be whether the ICDR has a rule that requires or strongly encourages arbitrators to inform the parties of the cost allocation rule that they will most likely apply and if not, why? Furthermore, the problem of how to deal with an impecunious party will be addressed. So far, there have been mainly two approaches: Tribunals can either insist on the enforceability of the arbitration agreement despite the party's financial incapacity or disregard the arbitration agreement and allow an impecunious party to have recourse to courts.

Finally, a number of unresolved questions around awards will be addressed. This includes in particular the typical timeframe for rendering of the final award, the effect of delays in the proceedings on such timeframe, the recommended or typical structure of an award, the publication of awards as well as guidelines regarding content, length, and reasoning of awards. One of the most controversial issues relates to the scrutiny process of the ICDR. If there is one, the question arises, who will scrutinize awards, on what issues such scrutiny will be focused, the timeframe for the scrutiny process and potential consequences.

Moderators

C Ryan Reetz, Nikolaus Pitkowitz

Panelists

John Fellas, Leon C Skornicki, Luis Manuel Martinez, Melida N Hodgson

Sponsors

Section of International Law

Product Code

IC2011ARB1OLC

Duration

90

Publication Date

11/5/2020 12:00:00 AM

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