International arbitration
April 2024 | ROUNDTABLE | LITIGATION & DISPUTE RESOLUTION
Financier Worldwide Magazine
April 2024 Issue
An ever-evolving economic, political and financial climate is leading to a wide range of disputes, with many resolved by international arbitration. Feeding disputes are the ongoing repercussions of the Russia-Ukraine war, while new legislation coming into force in several important jurisdictions is also having an impact in the arbitration space. Consequently, many of the disputes that inevitably arise from such developments will be filed for resolution in international arbitration.
FW: In your opinion, what key developments have dominated the international arbitration space over the past 12 months or so? Have you noted any sector-specific trends, for example?
Vasani: Two key developments dominating the international arbitration space – and the overall business climate – are the growth of arbitration in renewables and other developing energy sectors, and the impact of geopolitical uncertainty on both energy security and the energy transition. With the transition to net zero well underway, parties operating in the renewables space, and especially wind and solar, are taking advantage of arbitration clauses they negotiated years ago. Increased investment in liquified natural gas, lithium, hydrogen, nuclear and minerals essential to the energy transition, alongside developing and often changing regulatory frameworks and an uptick in resource nationalism, will almost certainly lead to increased disputes this year and well beyond. At the same time, geopolitical uncertainties continue to impact the energy sector. Arbitrations stemming from Russia’s invasion of Ukraine, particularly in relation to fossil fuels, continue to dominate. But that political uncertainty has been compounded by the Israel-Gaza war and the spectre of a wider regional conflict which could embroil Iran and its militant factions in the Strait of Hormuz, which has long been a critical passageway for oil and gas, among other goods.
Andersen: From an institutional perspective, we continue to see an increase in international filings. International construction and infrastructure projects, technology, energy and life sciences are business sectors increasingly using international arbitration. There are also cases where parties are sovereigns or state-related entities. These cases may involve sanctioned parties where an Office of Foreign Assets Control licence is required. Data privacy continues to be an important issue with the implementation of the new Data Privacy Framework (DPF) to facilitate transatlantic commerce by providing US organisations with reliable mechanisms for personal data transfers to the US from the European Union (EU) and European Economic Area, the UK, Gibraltar and Switzerland consistent with EU, UK and Swiss data protection laws. The DPF programme was developed in response to the invalidation of the Privacy Shield Framework by the Court of Justice of the European Union in 2020.
Kalantirsky: The business risks arising out of geopolitical instability have continued to generate arbitration claims, most obviously as a result of the Russian invasion of Ukraine. Several investor-state claims against Russia under bilateral investment treaties were notified in the past year, in which investors have claimed that Russia expropriated their assets. In addition, contract parties also commenced a series of commercial arbitration claims arising out of business in Russia or with Russian counterparties that had been terminated or otherwise impacted by the conflict or by the related sanctions regimes. The ramifications of the instability in Russia also extended beyond contracts and business that directly involve Russian companies due to the instability caused by the conflict in various markets including, for example, the energy and commodities markets.
Finizio: There have been certain international arbitration issues that have received particular attention in the last year or so, which are interesting, but also should not distract from the fact that international arbitration remains the preferred dispute resolution mechanism for most transnational commercial relationships, and continues to work well, particularly compared to litigation in local courts. On a practical level, recent world events, including Russia’s invasion of Ukraine, have continued to have an impact on international transactions. This includes ongoing issues resulting from sanctions, which have impacted contractual arrangements and also raised thorny issues about the representation of parties in arbitrations, and the role of institutions and arbitrators. We continue to see the growth of regional arbitral institutions. We also see ongoing attention toward procedural measures intended to help make arbitration more like court proceedings in terms of the ability to effectively address complicated disputes. This includes expressly providing the authority for tribunals to make early determinations, rules to automatically expedite certain categories of cases, and mechanisms to address urgent requests for interim relief. The availability of effective measures to obtain interim relief can be particularly important in cases involving intellectual property, financial instruments, mergers and acquisitions, and infrastructure disputes.
Knoebel: The repercussions of the Russia-Ukraine war continue to be felt in the arbitration space with an increasing number of Russia-related disputes. Russia’s response to Western sanctions in imposing barriers upon ‘unfriendly’ entities from Western nations to exit Russia, and in seizing their assets, brought on multiple investor-state arbitration claims against Russia under investment treaties. Another significant impact of the sanctions has been with respect to disruptions to contracts entered into with Russian parties giving rise to multiple arbitrations. In these claims, Russian parties also frequently relied on Russian courts to assist them in avoiding arbitration agreements in their contracts, and restraining foreign seated arbitrations in favour of Russian courts causing an increase in applications around the world to uphold the arbitration agreements. In a time of climate crisis, energy transition and ongoing war, we have also seen a considerable uptick in arbitrations arising from pressures created by supply and demand disruptions, market volatility, and climate and sustainable development goals. Another important development in 2023 was the publication of the Law Commission’s recommendations for amending the English Arbitration Act 1996, to improve the arbitral process and ensure London remains a leading seat of arbitration.
“A well-written arbitration agreement remains the best way to avoid costly distractions and uncertainties, which undermine the benefits of arbitration.”
FW: Have any recent arbitration cases gained your attention in particular? What can they tell us about the current international arbitration environment, and what impact could they have on future cases?
Knoebel: The High Court’s decision in Nigeria v. P&ID, in which the court upheld a challenge to an $11bn award against Nigeria, was a noteworthy decision from 2023 that has some lessons to offer. The challenge under section 68 of the Arbitration Act was upheld on the basis that the award had been procured by fraud and the case raised serious questions about how the arbitration framework at play actually may have helped to conceal the corruption, with a few lessons to be learned on the importance of arbitrator proactivity, transparency and disclosure. One other decision that attracted practitioners’ particular attention is the UK’s Supreme Court ruling in PACCAR on third-party funding. The court held that litigation funding agreements under which the funder’s remuneration is calculated by reference to a share of the damages ultimately recovered, constitute damages based agreements, subject to specific regulation. This ruling put many funding arrangements at risk of potentially being unenforceable. However, the UK government has recently announced that it is planning to reverse PACCAR, recognising the importance of funding for the litigation industry in the UK, also as a leading arbitration and enforcement jurisdiction.
Kalantirsky: The long-running saga of creditors seeking to enforce awards against the Republic of Venezuela is expected to culminate in mid-2024 in a forced sale of the shares of the parent company of Citgo. Amid this series of litigations, many issues related to enforcing awards against sovereigns have been addressed by US courts, including whether to recognise Juan Guiadó, the Venezuelan government’s opposition leader, or Nicolás Maduro, who remains in control of the apparatus of government in Venezuela. The US Supreme Court has weighed in on several aspects of the dispute, most recently rejecting Venezuela’s attempt to exclude several additional creditors from joining the sale process. The creditors that will participate in the sale hold claims totalling approximately $21bn, while Citgo is reportedly valued at around $13bn. It remains to be seen whether the approach creditors have taken to enforcing awards against Venezuela may be fruitfully employed by creditors against other sovereigns or other award-debtors in the future.
Finizio: There have been a number of recent cases that highlight some important ongoing issues. One is the 2023 decision by the Indian Supreme Court in Cox and Kings v. SAP India Pvt. Ltd. and Anr., in which the court upheld the use of the ‘group of companies’ doctrine, which allows a company that did not sign an arbitration agreement to be bound by or rely on that arbitration agreement where it is part of the same group of companies as a company that did agree to arbitrate. The decision is interesting both because it has been unusual for courts in common law jurisdictions to apply that doctrine and because it is part of a wider trend to use doctrines, such as estoppel, to try to bring non-signatories into arbitrations, particularly when doing so may provide efficiency in complicated multiparty or multi-contract disputes. This is also reflected in the attention that arbitral institutions have been paying to revising their rules on joinder and consolidation. There also have been several interesting cases in which courts have wrestled with the role of third-party funding. This has implications for parties seeking funding in order to commence cases and may also affect the way arbitrations are conducted when funders are involved.
Vasani: Everyone in the legal sector, not just arbitration lawyers, has been talking about Nigeria v. P&ID in which the English High Court vacated an $11bn oil and gas award against Nigeria for corruption in an October 2023 decision. In addition to rather shocking facts including underlying bribes to Nigerian government officials, the claimant’s misappropriation of privileged documents during the arbitration, and the High Court’s decision to specifically call out the claimant’s lawyers for unethical behaviour, the entire arbitration community seems to have accepted the High Court’s invitation to consider and discuss arbitration’s ability to root out corruption. The case should give pause to those sitting as arbitrators to carefully consider the evidence and arguments presented, including whether to investigate corruption issues sua sponte when neither party appears eager to raise those issues. For counsel, it is a salient reminder to think carefully about what information one requires from a client. It also underscores the importance of conducting due diligence on one’s own client, the counterparty and the transaction in question.
“The need to disclose the use of AI has become a concern in courts and arbitration, as well as its potential impact on the integrity of evidence and submissions.”
FW: What do you consider to be the most pressing issues facing parties and practitioners in today’s evolving international arbitration landscape? How is the arbitration community dealing with these issues?
Kalantirsky: The use of artificial intelligence (AI) is likely to impact international arbitration to a significant extent in the coming years. AI may ultimately be relevant to many aspects of international arbitration, including preparing pleadings, document production and research. The need to disclose the use of AI has become a concern in courts and arbitration, as well as its potential impact on the integrity of evidence and submissions. A number of groups already have begun grappling with this issue, such as the Silicon Valley Arbitration and Mediation Center, which released draft guidelines on the use of AI in arbitration. In addition to regulating counsel’s use of AI, these draft guidelines also include provisions regarding the use of AI by arbitrators, in particular with regard to the duty not to supplant the arbitrators’ role as decision makers in an arbitration.
Finizio: The most pressing issue for users of arbitration is not new: how to best use international arbitration effectively, not just in terms of costs, but also in terms of customising the procedures for the needs of their particular case. One lesson from recent developments is that a well-written arbitration agreement remains the best way to avoid costly distractions and uncertainties, which undermine the benefits of arbitration. This does not mean that arbitration agreements need to be lengthy or bespoke. In fact, short model clauses are readily available, including on the websites of arbitral institutions, and they are almost always all that is needed. Indeed, the usual danger is departing from those models without a good reason for doing so. More generally, once an arbitration is commenced, parties and practitioners need to think creatively about all the options available to them to ensure an effective and efficient procedure.
Andersen: A number of challenges continue to impact international arbitration, such as cases involving sanctioned parties and their increased complexity. We also note that time and costs are an ongoing concern. In response, promulgated expedited international arbitration rules and mandatory mediation are initial steps offering a possible early resolution if parties agree to a settlement as part of their administration of international arbitrations. The use of AI will impact and lead to innovation in international arbitration.
Vasani: One of the biggest obstacles facing arbitration is the perception that arbitrations are taking longer and becoming much more expensive over time. Parties want justice, but not necessarily when it takes years and costs millions more than expected. The arbitration community should be, and is, adopting best practices for keeping cases on track and within budget. Information is power, and early due diligence on the case and the opponent, and the opponent’s counsel, is key to accurately assessing the costs and risk of any future arbitration. Similarly, arbitral appointments are critical. Prior to appointment, counsel should obtain confirmation on the arbitrator’s current availability and a commitment not to take on new appointments that would compromise the arbitrator’s ability to conduct the arbitration efficiently and expeditiously. There is a large and diverse pool of ‘new generation’ arbitrators, highly skilled and committed to handling cases in a time and cost efficient manner.
Knoebel: One of the most significant issues facing practitioners today – though certainly not new – is what is often referred to as the ‘legitimacy crisis’ in international arbitration. This involves criticisms of lack of transparency, diversity, efficiency and cost effectiveness. The arbitration community has been trying to address these criticisms over the past several years, with leading arbitral institutions amending their rules to promote further efficiency and increased transparency. The most recent attempt has been the United Nations Commission on International Trade Law’s (UNCITRAL’s) adoption of the ‘Code of Conduct for Arbitrators in International Investment Disputes’ in 2023, which has been under discussion for a number of years now, providing heightened scrutiny of arbitrator disclosures, independence and impartiality as well as regulating arbitrators’ fees and expenses. Promoting diversity, not only gender but also other forms in international arbitration to enhance the legitimacy of the arbitral process has, however, been a more serious challenge for the arbitration community. While arbitral institutions have been spearheading efforts to improve diversity in recent years by proactively nominating female arbitrators, making diversity and inclusion one of the requirements for appointment and actively publishing data relating to arbitrator gender and nationality to drive change, there is still more to be done by parties, co-arbitrators, law firms and practitioners to bridge the wider diversity gap.
“A number of challenges continue to impact international arbitration, such as cases involving sanctioned parties and their increased complexity.”
FW: How important is it to utilise expert witnesses to illuminate complex issues and provide an informed perspective in certain cases? To what extent can expert testimony define success or failure in an arbitration?
Knoebel: The use of expert witnesses is an integral part of the process when it comes to putting forward the best case for a client before a tribunal. The types of arbitration disputes that we deal with in today’s world implicate a vast range of industries, spanning mining, construction, energy, telecommunications, agriculture and biotechnology, among others. Experts can therefore add tremendous value when it comes to deciphering extremely complex and specialist issues for the tribunal. When delivered in a clear and succinct manner, reflecting the true expertise of an expert in line with the needs of a tribunal, expert testimony can tangibly contribute to success in arbitration and lend greater credibility to a party’s position. This is especially the case for quantum and technical issues for which expert evidence is often sought in arbitration.
Vasani: Expert witness testimony can be extremely instructive for a tribunal, but it must be effectively presented. Counsel needs to carefully select the right expert witness; it is often desirable to do that earlier in the case than later, as this can impact upon how the case is developed and argued, and in some cases can facilitate settlement. While the expert must be independent, credible and highly credentialed, an expert should come across to the tribunal in a way that advances the client’s case. Not only do experts need to be able to break down complex concepts into digestible pieces, they also need to do so while keeping often dry subjects interesting, and without sounding condescending or defensive. It is also critical to clearly define the expert’s scope, and counsel should master the technical details to an extent that she can challenge the expert and ensure the client obtains robust work product that will withstand cross examination by experienced opposing counsel, and scrutiny by the tribunal.
Andersen: Today’s international arbitrations are increasingly more complex, involving highly technical, legal and financial issues. An expert appointed either by the parties or by the arbitrators may provide important analysis and interpretations to aid the tribunal in reaching their final decision and award. It is crucial that the expert maintains their credibility and is able to articulate and persuade the tribunal with a clear, concise report and testimony. The challenge for the tribunal is, of course, when the experts have taken opposite positions and may be perceived as biased toward the party that hired them. At that point, international arbitrators appointed to these cases already have subject-matter expertise and can use a variety of tools to drill down and ascertain the veracity of the expert’s testimony, including ‘hot tubbing’ and the results of cross examination.
Finizio: In most cases, expert witnesses, whether they are industry experts, quantum experts or legal experts, are essential. And it is usually important to get experts involved early so that they can help provide a critical perspective on the case – its strengths, weaknesses and value – in the early stages. This helps everyone involved gain a realistic sense of the case and make informed decisions throughout, which helps define and achieve success.
Kalantirsky: Expert witnesses are very helpful to explain technical or opaque issues to an arbitral tribunal, and expert evidence often is necessary to properly substantiate a claim. Some common examples of expert testimony include valuation evidence and evidence of industry custom and practice. In addition, where there is a niche legal issue governed by a law different from the governing law of the contract, counsel may consider submitting an expert opinion from a lawyer who practices the relevant law and specialises in that specific legal issue. Regardless of expertise, the crucial task of the expert witness is to provide a well-supported opinion on disputed aspects of the case and be able to effectively communicate their reasoning to the tribunal.
FW: Although known as binding and enforceable, how robust is arbitral award enforcement in practice, especially when pertaining to enforcement in a jurisdiction different from the venue of the arbitration?
Vasani: Generally speaking, arbitral award enforcement is robust. Further, an obligation to pay an arbitral award is a legal debt and, in some cases, it is an internationally enforceable debt. This is largely due to the success of the New York and International Centre for Settlement of Investment Disputes (ICSID) Conventions, both of which provide for streamlined enforcement procedures and limit the ability of domestic courts to revisit an arbitral award. While misuse of those conventions does occur in some domestic courts, those decisions are normally visible and few and far between. The robust international framework for enforcement also means that award debtors often voluntarily pay amounts awarded in arbitration rather than waste additional funds defending in enforcement proceedings they are likely to lose. To ensure ease of enforcement, when drafting their dispute resolution provisions, parties should select an arbitral seat where the courts with supervisory jurisdiction over the final award are pro-arbitration.
Andersen: The majority of international arbitration awards – over 80 percent or more, depending on the year – are complied with voluntarily without the need to seek enforcement in the courts. Despite the challenges, arbitral award enforcement remains generally robust, especially in countries with strong legal frameworks and commitment to the New York Convention. However, the level of ease and certainty varies depending on the specific jurisdictions involved and the complexity of the case.
Finizio: The international enforceability of arbitral awards is one of the great benefits of international arbitration, and perhaps its most important advantage compared to litigation in local courts. That enforceability advantage is also increasingly true of decisions about preliminary relief, such as emergency arbitrator decisions and other interim orders issued by arbitral tribunals. While there will always be examples of local courts being less willing to enforce international awards than we would like, the general trend continues to be positive. As arbitration legislation has been modernised in many parts of the world, courts have increasingly respected their limited role in reviewing and enforcing arbitral awards. Under most arbitration laws and international treaties, there are narrow and limited grounds for setting aside or refusing to enforce an international arbitration award.
Kalantirsky: The New York Convention has been adopted by more than 160 countries and remains a strong mechanism to enforce commercial arbitration awards. However, implementation of the New York Convention is subject to local legislation and implementation by local courts. Also, the ease of enforcing an award can vary widely from jurisdiction to jurisdiction. For this reason, contract parties negotiating an arbitration clause will be wise to consider the jurisdictions in which enforcement may be required when selecting the seat of arbitration and may also include specific consents to jurisdiction for enforcement in other jurisdictions, where that is deemed to be a useful aid to enforcement.
Knoebel: Arbitral award enforcement, despite challenges arising from increasing resistance to payment by award debtors, remains robust beyond the venue of arbitration. We saw the UK and the US courts taking centre stage in 2023, dealing with complex and high value enforcement matters against third states. In particular, they have been grappling with questions of enforcement of intra-EU awards, the ambit and nature of sovereign immunity, and the existence of a valid arbitration agreement, which are currently pending before the appellate courts in both jurisdictions. Other common law jurisdictions – including Australia and New Zealand – also saw their fair share of enforcement claims in the last few years, likewise dealing with sovereign immunity issues in the context of ICSID and New York Convention awards. It is certainly an exciting time for the development of award enforcement jurisprudence under both the ICSID and New York Convention regimes.
“It is certainly an exciting time for the development of award enforcement jurisprudence under both the ICSID and New York Convention regimes.”
FW: Would you say companies are now more inclined to include international arbitration provisions in their commercial agreements? What factors should they consider when doing so?
Andersen: There is a trend toward companies including international arbitration provisions in their commercial agreements, especially in some key sectors such as construction, technology and energy. These provisions have a number of key advantages. First, neutrality. Arbitration provides a neutral, impartial and independent forum compared to national courts, where a party may have a significant presence, presenting them with a home-court advantage and expertise regarding their local legal system. Second, confidentiality. Arbitration proceedings are usually confidential, which can be crucial for protecting sensitive business information. Third, flexibility. Parties can tailor the arbitration process to their specific needs, choosing the rules, language and location of the arbitration. Fourth, enforcement. The New York Convention facilitates enforcement of arbitral awards in over 170 countries, offering greater certainty and ease of execution and, as a consequence, a likelihood of voluntary compliance with the award. Finally, expertise. Arbitrators can be chosen for their expertise in specific industries or legal areas, potentially leading to better-informed decisions.
Finizio: Most companies involved in transnational business use international arbitration agreements in their contracts as a matter of course. One recent trend is that some industries or sectors that had been more reluctant to use arbitration for certain types of disputes – such as those related to financial services or intellectual property – are turning to arbitration instead of litigation. They are doing so because they recognise some of the key advantages of arbitration compared to litigation. These include a neutral procedure outside of either side’s home courts, international enforceability, procedural flexibility, the ability to control cost and time, and privacy. That said, in order to help ensure a company’s goals are met, it is important that they pick experienced advisers and thoughtfully consider the options available in terms of dispute resolution.
Kalantirsky: Many companies continue to include arbitration provisions in their commercial agreements, particularly for cross-border disputes. Commercial parties often focus on the benefit of avoiding the ‘home courts’ of either party and having more control over the dispute resolution process – through the selection of arbitrators and the parties’ ability to control the procedures and rules of the arbitration – and the ease of enforcement of awards due to the New York Convention. In addition, arbitration allows the parties to agree to keep the proceedings confidential, although there may be limits to confidentiality if one party seeks to confirm or annul an award in courts after the arbitration is concluded.
Knoebel: International arbitration clauses are popular as ever in commercial agreements. As far as factors to consider, all of the traditional guidelines still hold true. These include ensuring unambiguous language with respect to intention to refer disputes to arbitration, defining the scope of disputes to be covered by the arbitration clause clearly, and specifying choices as to the seat, governing law, arbitral institutions and applicable arbitral rules. With surging commercial activity by state-owned entities, especially from the Middle East, Russia and China, in recent years, waivers of sovereign immunity for adjudication and enforcement have also gained particular importance alongside a clearly worded arbitration provision. In high-value transactions involving states or state-owned entities, parties should consider negotiating the scope of these waivers beyond the standard formulations carefully, with a broader enforcement strategy in mind from the outset.
Vasani: Every company that engages in global commerce should use, or at least seriously consider, international arbitration provisions in their commercial agreements. The key benefits of arbitration are neutrality, flexibility and enforceability. Sophisticated clients are loath to fight their legal battles before courts where their counterparty may have a ‘home court’ advantage, and where the legal system may be unfamiliar to their own. The seat is critical, because that will determine the supervisory court of the arbitration and where any set-aside proceeding will take place. It is essential to choose a seat with robust pro-arbitration jurisprudence.
“Every company that engages in global commerce should use, or at least seriously consider, international arbitration provisions in their commercial agreements.”
FW: Looking ahead, how do you envisage the international arbitration landscape developing over the coming months and years? What trends are on the horizon?
Finizio: One of the positive things about international arbitration is that arbitral institutions and practitioners are always looking for ways to improve the process. Over the past decade, we have seen a number of innovations designed to increase efficiency and flexibility, and to address concerns raised by users, for example regarding costs and time for smaller disputes. We are also seeing legislatures and courts in many jurisdictions not just supporting the use of arbitration, but the use of recent innovations like emergency arbitration. Arbitral institutions and practitioners also have embraced technology, partly in response to the pandemic. As practitioners become more comfortable with these new tools, that should have a further impact on the efficiency of proceedings. So, as a general matter, the landscape looks good.
Kalantirsky: Geopolitical uncertainty and changing regulatory regimes will continue to generate disputes in both investor-state and commercial arbitrations in the coming year. In Latin America, for example, 2024 is an election year in several jurisdictions, and changing political or regulatory priorities of new governments may lead to disruption of business. In addition, new or updated legislation is coming into force in several important jurisdictions, including the UK, China and Japan. Many of the disputes that inevitably arise from these changes will be submitted for resolution in international arbitration.
Vasani: I foresee two key trends on the horizon. First, generative AI. It is rapidly evolving and will impact our practices and our clients’ businesses in significant ways. It presents opportunities for increased efficiencies, but also significant risks including inherent biases and hallucinations. Second, continued growth in energy and mining disputes as we transition to net zero. Governments are likely to impose significant changes to their legal and regulatory regimes as the climate crisis becomes more acute. This fact, along with an increase in geopolitical uncertainty, resource nationalism and populism, will only add fuel to the fire of energy disputes. Climate change related disputes, soaring demand for and investment in minerals essential to the energy transition, and investment in new energy sources and technologies whose regulatory and legal frameworks are still under construction, will ensure that disputes concerning the transition to net zero will take centre stage in years to come.
Knoebel: Arbitration will certainly remain at the centre of dispute resolution in the coming years, particularly in the current geopolitical atmosphere. The ongoing Russian war and sanctions-related disputes will continue to give rise to arbitrations both on the commercial and investor-state front. Widespread political instability, energy markets disruption, the race to clean energy related demand for minerals and strains on global mineral supply chains caused by increasing state control will continue to present significant challenges for businesses in the coming years. When these issues are coupled with increasing regulation and focus on international businesses’ environmental, social and governance (ESG) obligations, we will likely see more ESG-related disputes in the international arbitration sphere, especially in relation to projects in the mining and energy sectors. Following the withdrawal of EU member states and, most recently, the UK, from the Energy Charter Treaty, uncertainties as to the scope of protections that may be available to energy investors against government intervention at a time of energy transition will likely give rise to further litigation as well.
Andersen: Predicting the future is always tricky, but there are some potential developments I see shaping the international arbitration landscape in the coming months and years. AI-powered tools could be used for tasks like contract analysis, case management and even preliminary dispute resolution. However, ethical considerations and potential biases need careful attention. I also envisage a continued emphasis on efficiency and cost effectiveness. In addition, I expect to see an exploration of alternative dispute resolution (ADR) hybrids. Combining arbitration with other forms of ADR, such as mediation, could offer flexible and efficient solutions for certain disputes. Lastly, technological advances made to the administering platforms and the use of virtual hearing tools will reduce the need for international travel, and related time and costs.
Sarah Vasani co-heads the international arbitration practice at global law firm CMS. She is a seasoned disputes lawyer specialising in high-stakes energy, mining and infrastructure disputes. Ms Vasani is duel-qualified in the US and UK, and regularly advises clients on investment structuring and strategies for minimising the prospects of full-blown disputes. She is an adroit counsellor on managing arbitration risks and costs through third-party funding, ATE insurance and conditional fee and damages based agreements. Ms Vasani acts as lead counsel and sits as arbitrator. She can be contacted on +44 (0)20 7367 3703 or by email: sarah.vasani@cms-cmno.com.
Ceyda Knoebel is an English-Turkish dual-qualified solicitor and of counsel in the London office of Gibson, Dunn & Crutcher. She is a member of the firm’s dispute resolution, international arbitration, judgment and award enforcement groups. She specialises in public international law and international arbitration, advising clients on a wide range of cross-border and complex disputes in common and civil law jurisdictions. She can be contacted on +44 (0)20 7071 4243 or by email: cknoebel@gibsondunn.com.
Steve Andersen directs the International Centre for Dispute Resolution (ICDR) in Canada, Mexico and the US. Mr Andersen recruits and maintains the highest qualified panel in those areas for the ICDR’s international panel of arbitrators and mediators, with a focus on aerospace, aviation, national security, energy and technology, among other industries. He is responsible for the ICDR’s cross-border arbitration and mediation in the region, providing executive oversight of large cases. He can be contacted on +1 (213) 271 9915 or by email: andersens@adr.org.
Amanda Raymond Kalantirsky represents clients in international arbitrations conducted under ICC, ICDR, LCIA and other arbitration rules, as well as in federal and state courts in the US. She regularly advises clients on issues relating to international dispute resolution, including forum selection, extraterritorial discovery, and enforcement of judgments and arbitration awards. She can be contacted on +1 (212) 735 3465 or by email: amanda.raymond@skadden.com.
Steven Finizio’s practice focuses on international dispute resolution. He also serves as an arbitrator. He has particular experience with energy, financial services, shareholder, joint venture and M&A, and manufacturing issues. He has advised clients regarding disputes under the rules of most of the well-recognised international arbitration institutions and governed by the laws of jurisdictions in Europe, Asia, Africa, Latin America and the US, as well as under bilateral and regional investment treaties. He can be contacted on +44 (0)20 7872 1073 or by email: steven.finizio@wilmerhale.com.
© Financier Worldwide
THE PANELLISTS
CMS
Gibson, Dunn & Crutcher UK LLP
ICDR
Skadden, Arps, Slate, Meagher & Flom LLP
WilmerHale