![]() Other important additions were solidifying the jurisdiction of the tribunal to rule on its own jurisdiction and adding the word ‘arbitrability’ to expand the scope of what an arbitrator can decide. The ICDR’s extensive rules revision process from November 2019 until March 2021 highlights recent trends, adding a concurrent mediation process during the arbitration proceeding and arbitration rules for tribunal secretaries, third-party funding and early disposition. The real question is whether advocates, parties and arbitrators continue to maximise the use of virtual proceedings for efficiency and economy. The international dispute resolution community quickly adapted professionally to a virtual world for arbitration preliminary hearings, hearings, mediation conferences and educational events. Intellectual property (IP) cases continue to increase and we expect to see more corporate law cases coming into play too.Īndersen: The reestablishment of international arbitration practice post-pandemic, and provisions incorporated into the rules amendments by arbitral institutions are two key areas. ![]() Broader issues impacting the world view are also beginning to creep into the international arbitration world, such as environmental, social and governance (ESG)-related disputes and disputes in the tech sector. It is likely that we will continue to see a rise in cases as a number of economic factors kick in – supply chain issues, losses from the pandemic still working their way through the system as well as issues resulting from the energy crisis. Those centres – London, Singapore, Hong Kong, Paris and Geneva – have all experienced an increase in caseload. Rana: Cases in international arbitration across the five main centres of choice continue to rise. While it is still premature to determine what impact these new reforms will have, many are confident that they will contribute to cementing Hong Kong and Singapore as dominant arbitral hubs internationally. In Hong Kong, the latest legal reforms also mean that parties can agree to use conditional fee arrangements throughout the entire life of an arbitration – this exceptionally means even for setting aside or enforcing an arbitral award in domestic courts. In both jurisdictions, it has become lawful to enter into certain types of ‘no-win, no fee’ or ‘no-win, low fee’ arrangements for arbitrations. But, as of 2022, that is no longer the case. Rhie: Historically, lawyers in Hong Kong and Singapore have been barred from entering into contingency fee arrangements with their clients. Hybrid hearings can facilitate earlier hearings in situations where a witness can be available remotely for the few hours needed to give testimony but might otherwise be unavailable to travel on the dates when the arbitrators are available to hear them. Parties often see a truncated procedural schedule as a way to control costs. ![]() A related development we are seeing is an increased push for earlier hearings. If done well, a hybrid hearing can incorporate the benefits of both approaches, reducing travel burden – particularly for arbitrators and party witnesses – while maintaining an in-person element of hearing advocacy that many find more effective and efficient. ![]() Although the loosening of coronavirus (COVID-19) pandemic-related travel and gathering restrictions has allowed fully in-person hearings to resume, parties, counsel and arbitrators are showing a strong preference for hybrid hearings. Zimmerman: One key trend is the coalescing preference for hybrid virtual and in-person hearings. ![]() From the use of virtual hearings to the use of artificial intelligence (AI) in document review, technology is changing the way arbitrations are conducted and managed. Technology also continues to play a significant role in international arbitration. The consultation being carried out by the UK Law Commission over possible reforms to the 1996 Arbitration Act is perhaps the best example of this. Many countries have recently revamped or are considering revamping their arbitration laws to align them more with modern practice and promote arbitration as a means of dispute resolution. Another topic is the reform of national arbitration laws. Thus, many countries are seeking to reform or withdraw from existing investment treaties and the use of ISDS mechanisms, such as intra-European Union (EU) bilateral investment treaties. Criticisms have included that the ISDS mechanisms lead to inconsistencies in decision making, lack of transparency and the potential for investors to bring frivolous claims against states. FW: What do you consider to be among the key trends and developments shaping international arbitration over the past 12 to 18 months?īamforth: One area which has seen more recent scrutiny is investor-state dispute settlement (ISDS). ![]()
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