The International Business Transactions Blog

Schiefelbein Global Dispute Resolution Conference: Panel 3 Summary

By John Contrera & Sergey Harutynyants
Law Student Guest Editors

The third panel of the Schiefelbein Global Dispute Resolution Conference dealt with Nontraditional International Arbitration Claims. The panel was moderated by Hugh Carlson, CEO of Three Crowns LLP. The speakers were:

  • Claudia Salomon, President of the ICC International Court of Arbitration (Paris, France)
  • Steven K. Andersen, VP of the AAA’s International Centre for Dispute Resolution (Los Angeles, CA)
  • Jacomijn van Haersolte-van Hof, Director General of the London Court of International Arbitration (London, UK)
  • Patrícia Kobayashi, Secretary General of the Center for Arbitration & Mediation of the Chamber of Commerce Brazil-Canada (São Paulo, Brazil).

The speakers first offered examples of what constituted traditional claims for their respective institutions. Most agreed that the typical case involves breach of contract claims that are arbitrated according to an arbitration agreement within a commercial contract.

The speakers then discussed recent trends regarding non-traditional claims in arbitration. All agreed that the number of cases involving multiple parties is increasing as both claimants and respondents. Ms. Saloman noted that technology disputes are becoming increasingly common arbitration claims within the ICC. She noted that claims involving renewables involved a combination of both the energy and technology sectors, and that these claims provide unique challenges to the court in finding qualified arbitrators and present novel issues. Ms. Kobayashi also noted that renewables are presenting new challenges to the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada as it is inherently different from traditional energy disputes. She noted that her institution is watching how arbitrators across the world are deciding renewable disputes, so that the expectations of parties in their own proceedings might be managed.  Additionally, technological advances and sophisticated licensing agreements are leading to more intellectual property rights cases being overseen by the ICC. Mr. Anderson agreed with Ms. Salomon, opining that patent disputes are a good fit for arbitration moving forward. He observed that tech and life-sciences cases are becoming increasingly popular disputes at the International Centre for Dispute Resolution over the past few years.

The panelists all agreed that a challenge facing arbitral institutions are similar claims arising from different disputes involving disparate parties. These cases present issues because the issues in the proceedings may have already been decided by an arbitrator, and may lead to disagreements between the parties as to his or her appointment. The institutions are committed to finding an arbitrator that fits both parties’ needs, but they need to balance efficiency, experience, and neutrality as well.

Ms. van Haersolte-van Hof spoke about how the complexity of cases now involving multiple parties and emerging technologies similarly presents challenges to institutions. Finding arbitrators who are knowledgeable, have the right background for the parties, and the requisite experience is increasingly difficult. As an example, all the panelists agreed that blockchain disputes are novel issues facing their institutions, and that meeting client requests for arbitrators versed in the topic is a major concern. The panelists also noted that the technological sector is demanding, and that lawyers in those fields are less willing to take on additional work as an arbitrator in addition to their day-to-day workload. Looking forward, Mr. Anderson suggested that these issues can be resolved through industry-group leadership and training. He stressed the importance of training lawyers versed in some tech sectors in other fields.

Finally, the panelists were asked about what future claims are likely to arise in international arbitration. While most were reluctant to proffer any strong predictions, all agreed that developments in technology would affect not only claims, but provide instruments to aid the arbitral process. All agreed that sophistication in how proceedings are handled will increase dramatically. Additionally, Ms. Saloman predicted that more low-value disputes will involve alternative dispute resolution. She recognized the backlog in traditional courts and the flexibility of the arbitration process as an attractive alternative.