What the Rules Don’t Tell You - A Series of Practical Webinars Probing Arbitral Institutions

Part I: International Centre for Dispute Resolution (ICDR)

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 program will provide unprecedented insight into the unwritten aspects of arbitration at the International Centre for Dispute Resolution (ICDR). Speakers will not only be representatives of the institution itself, but also arbitrators, counsels and inhouse counsel experienced in working with the ICDR – presenting also critical views and addressing sensitive topics. Questions and contributions to the discussion from attendees are highly encouraged.

Some of the most controversial issues relate to the selection and performance of arbitrators, which will be discussed especially with a view to provide advice for (young) professionals on how to get their (first) appointment as an arbitrator. Another important topic revolves around the question of party autonomy and flexibility of the Rules, especially with regards to hybrid arbitration agreements. Furthermore, the requirements to consolidate international arbitration proceedings subject to other institutional arbitration rules into one proceeding administered only by the ICDR applying its own institutional rules will be discussed. In light of the global pandemic and its financial impact on parties, third-party funding has become increasingly relevant and the panel will discuss whether disclosure of funding and the name of the funder is necessary or recommended as well as any thresholds for conflicts of interest for arbitrators.

Furthermore, the program will take a look at the ICDR's attitude towards handling and supporting virtual hearings, which have become increasingly relevant in the course of the pandemic. 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, for example, encourage efficiency and the facilitation of a settlement.

With regards to costs, the program will explore 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. Furthermore, the problem of how to deal with an impecunious party will be addressed.

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 issues regarding the scrutiny process at the ICDR.

Moderators

• Nikolaus Pitkowitz, Graf & Pitkowitz, Vienna
• C. Ryan Reetz, Bryan Cave Leighton Paisner, Miami

Panel

• Luis M. Martinez, Vice President of the International Centre for Dispute Resolution (ICDR), New York
• Melida Hodgson, Jenner & Block, New York
• Yasmine Lahlou, Chaffetz Lindsey LLP, New York
• John Fellas, Hughes Hubbard & Reed, New York
• Leon Skornicki, In-House Counsel at Visa Inc., Miami

February 16, 2021 - Part II: “Swiss Chambers' Arbitration Institution (SCAI)”

About this Virtual Program

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 program will provide unprecedented insight into the unwritten aspects of arbitration at the Swiss Chambers' Arbitration Institution (SCAI). Speakers will not only be representatives of the institution itself, but also arbitrators, counsels and inhouse counsel experienced in working with the SCAI – presenting also critical views and addressing sensitive topics.

As the problem of the 28^th Vis Moot is subject to the Swiss Rules, the program will also address some of the procedural issues of the case right in time before the Oral Hearings.

There will also be ample opportunity for participation and questions from attendees.

Co-Moderators:

• C. Ryan Reetz, Partner at Bryan Cave Leighton Paisner, Miami, FL
• Nikolaus Pitkowitz, Partner at Graf & Pitkowitz, Vienna

Panelists:

• Xavier Favre-Bulle, President of the SCAI Arbitration Court and Attorney at Lenz & Staehelin, Geneva
• Anne Véronique Schlaepfer, Partner at White & Case S.A., Geneva
• Christopher Boog, Partner at Schellenberg Wittmer, Zurich
• Sheila Mangachi, Counsel at Graf & Pitkowitz, Vienna
• James Menz, Partner at rothorn legal, Zurich
• Patrizia Netal, Co-Director of the Vis Moot and Partner at KNOETZL,

Topics to be discussed include:

Selection and Performance of Arbitrators

• Arbitrator selection process (transparency of institutional policy, involvement of the parties)
• Closed list approach vs Go-to-market approach
• Safeguards against personal biases?
• How to get the first appointment – institutional expectations
• Benefit of institutional arbitrator training programs
• Advice for (young) professionals
• Regularly appointed vs black-listed arbitrators
• Handling of non-confirmations and challenges
• Steps taken to promote diversity of arbitral appointments
• Special requirements and/or training for emergency arbitrators
• How is quality of arbitrators determined, assessed, re-assessed? What is considered at what weight (procedure, time, award, feedback by counsel and parties)? Is there a feedback process between institution and arbitrator?

How Flexible are the Rules?

• Hybrid arbitration agreements – where lie the boundaries to party autonomy?
• Is cross-institution consolidation possible?
• How does the institution deal with Third Party Funding? (Disclosure requirements, thresholds for conflicts of interest?)

Conduct of the Proceedings – Predictability

• Attitude towards, handling and support of virtual hearings; in-house or approved third party vendors? Technical and other support? Consent of (both) parties required?
• Surveillance and guidance in the course of the proceedings?
• To what extent does the institution support arbitrators with case management?
• Encouragement of efficiency and facilitation of settlement apart from express provisions in the Rules?
• What effective sanctions or measures are available during the proceedings to deal with dilatory tactics, non-cooperating parties and guerilla tactics?
• How to handle requests that an (unwilling) third-party shall join the proceedings?

Costs

• What is the institution’s process for planning (cost advances), determining and assessing the reasonability of arbitrator compensation and expenses? Which factors are considered?
• Does the institution have a rule that requires or strongly encourages arbitrators to inform the parties of the cost allocation rule that they will most likely apply? If not, why?
• What is the institution’s role and policy in connection with awarding attorney fees, inhouse legal costs and expert costs?
• Does the institution have any resolution tools for smaller businesses who need rapid and low-cost resolution of disputes (e.g. online resolution etc.)?
• How to deal with an impecunious party?
• Guidelines regarding the granting of a request for security of costs?

Award

• What is the typical timeframe until rendering the final award? Do delays in the proceedings affect this timeframe?
• What is the recommended and what the typical structure of an award?
• What are the guidelines on content, length, and reasoning?
• Is there a scrutiny process? If yes, how is it conduced (who? focus? time frame?, consequences?)
• Are awards published? If yes, where? Can awards be published without the consent of the parties? (e.g. if public interest outweighs confidentiality or data protection?)
• How does the institution deal with dissenting opinions?
• Is there any post award feedback?

About the Programs in the Series

The series will address many practical issues as well as some controversial topics and cover some 15-20 major international arbitral institutions. Topics to be discussed include:

Selection and Performance of Arbitrators

• Arbitrator selection process (transparency of institutional policy, involvement of the parties)
• Closed list approach vs Go-to-market approach
• Safeguards against personal biases?
• How to get the first appointment – institutional expectations
• Benefit of institutional arbitrator training programs
• Advice for (young) professionals
• Regularly appointed vs black-listed arbitrators
• Handling of non-confirmations and challenges
• Steps taken to promote diversity of arbitral appointments
• Special requirements and/or training for emergency arbitrators
• How is quality of arbitrators determined, assessed, re-assessed? What is considered at what weight (procedure, time, award, feedback by counsel and parties)? Is there a feedback process between institution and arbitrator?

How Flexible are the Rules?

• Hybrid arbitration agreements – where lie the boundaries to party autonomy?
• Is cross-institution consolidation possible?
• How does the institution deal with Third Party Funding? (Disclosure requirements, thresholds for conflicts of interest?)

Conduct of the Proceedings – Predictability

• Attitude towards, handling and support of virtual hearings; in-house or approved third party vendors? Technical and other support?
• Surveillance and guidance in the course of the proceedings?
• To what extent does the institution support arbitrators with case management?
• Encouragement of efficiency and facilitation of settlement apart from express provisions in the Rules?
• What effective sanctions or measures are available during the proceedings to deal with dilatory tactics, non-cooperating parties and guerilla tactics?

Costs

• What is the institution’s process for planning (cost advances), determining and assessing the reasonability of arbitrator compensation and expenses? Which factors are considered? 
• Does the institution have a rule that requires or strongly encourages arbitrators to inform the parties of the cost allocation rule that they will most likely apply? If not, why?
• What is the institution’s role and policy in connection with awarding attorney fees, inhouse legal costs and expert costs?
• Does the institution have any resolution tools for smaller businesses who need rapid and low-cost resolution of disputes (e.g. online resolution etc.)?
• How to deal with an impecunious party?
• Guidelines regarding the granting of a request for security of costs?

Award

• What is the typical timeframe until rendering the final award? Do delays in the proceedings affect this timeframe?
• What is the recommended and what the typical structure of an award?
• What are the guidelines on content, length, and reasoning?
• Is there a scrutiny process? If yes, how is it conduced (who?, focus?, time frame?, consequences?)
• Are awards published? If yes, where? Can awards be published without the consent of the parties? (e.g. if public interest outweighs confidentiality or data protection?)
• How does the institution deal with dissenting opinions?
• Is there any post award feedback?

Why Attend:

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 series of webinars will provide unprecedented insight into the unwritten aspects of major international arbitral institutions around the globe. Each webinar will last 90 minutes, be eligible for CLE credits and focus on one specific institution. Speakers will not only be representatives of the discussed institution itself, but also arbitrators, counsels and inhouse counsel experienced in working with this institution – presenting also critical views and addressing sensitive topics.

There will be ample opportunity for participation and questions from attendees.

Who Should Attend:

•  Lawyers
• Arbitrators
• In-house Counsel

MCLE Information

Part I: International Centre for Dispute Resolution (ICDR)

Awarded 1.50 general CLE credit hours in 60-minute-hour states, and 1.80 general CLE credit hours in 50-minute states. Credit hours are estimated and are subject to each state’s approval and credit rounding rules.

Part II: “Swiss Chambers’ Arbitration Institution (SCAI)”

The content of this program does not meet requirements for continuing legal education (CLE) accreditation. You will not receive CLE credit for attending What the Rules Don’t Tell You:  A Series of Practical Webinars Probing Arbitral Institutions:  Part II: “Swiss Chambers’ Arbitration Institution (SCAI)”

Contact Us

If you have any questions, please contact [email protected].