Paris Arbitration Week. Сonclusions
Paris Arbitration Week (PAW) is the most important annual event of arbitration. It summarizes the results and identifies new trends and society demands for alternative dispute resolution. This year’s PAW was no exception: leading arbitration teams held 143 sessions in different locations in Paris during 5 days.
It is noteworthy that the opening of the PAW kicked off with the ICC Conference, the most famous arbitration court of which is celebrating its 100th anniversary. The conference was entitled “Rethinking Dispute Resolution”. The most interesting conclusions and proposals on the state and development of arbitration were identified during the conference.
It should be recognized that the problem of “diversity” is expanding and deepening: the issue is not limited to the gender aspect, but also concerns diversity in the selection of arbitrators, arbitral institutions, arbitration rules under which the parties choose to resolve their disputes. Surprisingly, traditional approaches still prevail in this context: for the most part, preference is given to England, France, and Switzerland as both the place of dispute resolution and the applicable law. Other countries are significantly behind in priorities and party choices.
Unexpectedly, there are almost no significant changes in gender diversity in the world of arbitration: since 2016, the statistics on the appointment of women arbitrators has increased slightly, not exceeding 20% and leaving the world of arbitration more and more “male”. Currently, out of the 10 most frequently appointed arbitrators in investment arbitrations, only 2 are women – Ms. Brigiette Stern and Ms. Gabrielle Kaufmann-Kohler.
The issue of diversity was further developed in a new area of discussion – the expansion of the scope of alternative dispute resolution methods. Proposals to introduce such methods at an early stage of a dispute to prevent its development and bring it to the need for resolution with the involvement of third parties (mediators, arbitrators) received significant support. In particular, negotiation procedures may be implemented at the stage of divergence of positions of the parties during the performance of the contract, and the service of verification and analysis of the status and causes of the dispute for the “managing” purposes may be particularly in demand in large construction disputes.
In addition to expanding the field of application of alternative dispute resolution “tools”, proposals continue to be put forward to improve the effectiveness of traditional, classical approaches, even those that are fundamental and basic to arbitration, in particular, the principle of confidentiality of arbitration proceedings. Thus, the conference participants were asked to vote on the issue of introducing the publication of arbitral awards without the consent of the parties to the dispute after a certain period of time has elapsed from the date of their issuance. Opinions were divided about equally, showing a strong commitment to maintaining the confidentiality of arbitration.
Another equally acute issue was the video recording of arbitration oral hearings and the reduction of the parties’ influence on the selection of arbitrators through the introduction of a “blind” appointment procedure from the list of arbitrators provided.
Among the topics that were discussed at several sessions and attracted special attention was the issue of compensation for damages caused by the Russian aggression against Ukraine, which was raised even during the discussion of other arbitration issues.
The legal community’s understanding of the inevitability of Russia’s responsibility for the seizure of Ukrainian territories, war crimes, the suffering of Ukrainian people and the destruction of civilian and infrastructure facilities is unequivocal and undeniable.
It should be acknowledged that the international legal community is ready to change the established international concepts and rules and introduce new ones, in particular, the denial of state immunity of the aggressor state or the state sponsoring terrorism in order to bring it and its leaders to justice, as well as to compensate for the damage caused by them in a military conflict. Despite the possibility of applying investment arbitration to compensate for damages caused in the occupied territories, no proceedings have been initiated yet, as businesses need significant investments now to reconstruct and continue their operations and cannot wait for a long time. Moreover, we should also recognize the unwillingness of funders to finance investment arbitrations against Russia due to Russia’s systematic resistance to fulfill its international obligations.
Therefore, the affected Ukrainians and Ukrainian businesses are waiting for the idea to be promoted and the actual implementation of an international compensation commission under the UN. However, there is currently no clear “timetable” for the creation of the compensation mechanism and the elements of the mechanism itself, and these issues did not become clearer during the discussions.
It is against this backdrop that proposals from Ukrainian business regarding the need to introduce new international norms on the enforcement of court and arbitration decisions against the aggressor state in a special, simplified manner to ensure the speedy recovery of the war-torn economy sound logical and reasonable.
Understanding of these and other topics discussed during the PAW left a feeling that in the coming years arbitration will continue to undergo reforms and changes, responding to geopolitical and social demands.
PS..: Paris Arbitration Week was held on March 27-31. On April 11, SCM Holding announced that it had initiated arbitration against Russia. It will demand compensation from the aggressor for all losses incurred in 2014-2017 as a result of the seizure of assets.
Yuliya Atamanova, the partner of LCF Law Group
