By Yuki Taylor
Law Student Editor
&
Prof. Art Hinshaw
Guest Editor
The Sandra Day O’Connor College of Law hosted the fifth annual Schiefelbein Global Dispute Resolution conference on January 13, 2023. Claudia Salomon, President of the International Chamber of Commerce’s International Court of Arbitration, delivered the keynote address, entitled “Damocles Sword—A Tool to Resolve Disputes, If Used Effectively.” Her keynote began by recognizing the Court of Arbitration’s 100th anniversary and noting that not only was she the first American to lead the Court, she was the first woman to do so as well.
The substance of her remarks began by evoking the woods near her home in the Hudson Valley of New York. The woods are beautiful, but danger lurks overhead for those who venture out to experience that beauty. Long dead large trees and partially fallen limbs hang precariously over the trails held up by the branches of neighboring trees, just waiting to fall on the unsuspecting hiker. Ms. Salomon likened this combination of beauty and danger to the famous Sword of Damocles that hung over the throne of antiquity’s King Dionysius II. A beautiful sword now known to symbolize a persistent and imminent threat. She pointed out that the myth is also commonly used to illustrate the difficulty of understanding the position of others until one has shared their experiences, a lesson understood by effective arbitrators.
In the world of international business, Ms. Salomon identified business interruption as a persistent and imminent threat and an important motivator for the business community to innovate, to improve, and to engage in timely means of conflict resolution. She then posed the question, what kind of a persistent and imminent threat could be used in the world of conflict resolution to motivate the business world in such a manner. Her answer – the increased use of deadlines. She gave several illustrative examples of how deadlines have shaped negotiations over the years and noted three important factors for deadlines to help parties resolve their differences. First, the deadline must be reasonable and give parties time to engage in negotiation. Unreasonable deadlines would simply be ignored. Second, all parties must feel the motivational force of the deadline. As an example she discussed the use of case management meetings, which typically occur once or twice in most cases the ICC administers, that force parties and lawyers to focus on the dispute to have a productive meeting. And third, all parties must have a clear understanding of what is at stake as well as the specific issues in dispute needing to be decided.
Ms. Salomon noted that the biggest deadline was the arbitration hearing itself, and suggested that there be a few more deadlines along the way in the arbitration process. She thought that maybe some version of more case management conferences might be appropriate, which received some pushback during the question period, but maybe she was hinting at something else. She referenced that the ICC Court of Arbitration “wants to be a non-stop shop” for its clients’ needs. Could she have been implying that mediation, the dispute resolution mechanism of choice before the New York Convention thrust international arbitration to the fore, could become an interim step in the arbitration process? Adding a mediation step would make sense based on the recent Singapore Convention on international mediated agreements and can be modeled on many different global systems. If this is indeed what Ms Salomon was intimating, it would be a big move for the ICC and the resolution of international business disputes.