The Resolver February 2017

THERESOLVER

T H E Q UA RT E R LY M AG A Z I N E O F T H E C H A RT E R E D I N S T I T U T E O F A R B I T RAT O R S

Golden Thread: CIArb overhauls its training structure to maintain excellence How to deal with arbitrations between parties with different resources In pictures: DAS Convention and YMG Conference Guide to 2017 training and courses February 2017

www.ciarb.org

Balancing act Keeping ethics and conflicts of interest in check

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International Arbitration Conferences 2017

‘The Synergy and Divergence between Civil Law and Common Law in International Arbitration’ Save the date: Johannesburg, South Africa 19-20 July 2017 Paris, France 7-8 December 2017

Events

The Chartered Institute of Arbitrators (CIArb) is launching three international conferences in 2017 which will examine a crucial theme: ‘The Synergy and Divergence between Civil Law and Common Law in International Arbitration’.

The conferences will identify issues and then develop solutions to the understanding and utilisation of both systems within arbitration.

The series of conferences will start in Dubai in March and then take us to Johannesburg, South Africa in July and Paris, France in December.

6IKMWXVEXMSR JSV SYV ½VWX GSRJIVIRGI MW RS[ STIR Date: 8-9 March Location: Royal Mirage, Dubai Registration: Book your place online at www.ciarb.org/Dubaiconf

For more general information, please contact the team at: E: events@ciarb.org

T: 02074217427

W: www.ciarb.org/events

Registered charity number: 803725 © Chartered Institute of Arbitrators 2017

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CONTACTS Redactive Publishing Ltd 17 Britton Street, London EC1M 5TP T: +44 (0)20 7880 6200 EDITORIAL T: +44 (0)20 7880 6200 E: editorial@ciarb.org Editor: Rima Evans Sub editor: Caroline Taylor Art editor: Adrian Taylor Picture editor: Claire Echavarry ADVERTISING Sales manager: James Brunt T: +44 (0)20 7880 6230 E: james.brunt@redactive.co.uk PUBLISHER Jason Grant E: jason.grant@redactive.co.uk PRODUCTION Production director: Jane Easterman Senior production executive: Aysha Miah

Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP, UK T: +44 (0)20 7421 7444 E: info@ciarb.org W: www.ciarb.org MEMBERSHIP T: +44 (0)20 7421 7447 E: memberservices@ciarb.org PR & COMMUNICATIONS Olivia Staines T: +44 (0)20 7421 7483 E: ostaines@ciarb.org MARKETING T: +44 (0)20 7421 7481 E: marketing@ciarb.org EDUCATION AND TRAINING T: +44 (0)20 7421 7439 E: education@ciarb.org EVENTS T: +44 (0)20 7421 7427 E: events@ciarb.org VENUE AND FACILITIES Giles Andrews T: +44 (0)20 7421 7423 E: gandrews@ciarb.org GOVERNANCE AND LEGAL SERVICES Tom Cadman legal@ciarb.org DISPUTE APPOINTMENT SERVICE Keisha Williams DAS@ciarb.org

Nayla Comair-Obeid

LEADER

I APPROACH MY APPOINTMENT AS PRESIDENT OF CIArb with a sense of both honour and privilege.

My objective for 2017 is to build upon what has been achieved to date by my predecessors. As a centenary Institution, CIArb has paved the way towards the consolidation of its leading role as a truly global organisation, dedicated to the promotion of arbitration and of ADR best practices. Our growing membership of 14,000 is based across 133 countries and supported by an international network of 37 branches.

I will promote the Institute and position it where it truly belongs, at the forefront of rapidly expanding markets. Fostering the synergy between countries with civil law and common law backgrounds is essential; the Institute is a positive forum that brings high-level professionals from the academic, judicial, legislative and institutional worlds together to develop thought leadership on such matters.

Furthermore, our three flagship conferences in 2017, based across three different continents, will enable us to develop these themes, with a focus on the specific challenges facing the different regions, and appropriate solutions. An analysis of the similarities and differences between the two legal systems, both during international events and smaller gatherings of our professionals, will help enhance and harmonise the arbitration process and bridge the gap.

Other objectives include more effective communication between branches, and generating greater opportunities for members. I will also ensure more active involvement of young people in CIArb’s activities, because I believe their ideas, energy and hope are key to the creation of new opportunities. In doing so, we will ensure that CIArb accreditation is regarded as a reference for the appointment of adjudicators, arbitrators and mediators across the globe.

I am confident about CIArb’s potential for growth and our ability to promote its long experience as a blueprint for international best practice, academic excellence and professional integrity. With our collective cultural diversity and range of experience, there is a pivotal role for each one of us to play. I reach out to all of you to make this happen.

Young people’s ideas, energy and hope are key to the creation of new opportunities

Professor Dr Nayla Comair-Obeid C.Arb President of CIArb

CONTENTS WATCH

© THE RESOLVER is published on behalf of the Chartered Institute of Arbitrators (CIArb) by Redactive Publishing Ltd (RPL), 17 Britton St, London EC1M 5TP. This magazine aims to include a broad range of opinion and professional issues and articles do not necessarily reflect the views of CIArb nor should such opinions be relied upon as statements of fact. All rights reserved. This publication may not be reproduced, transmitted or stored in any print or electronic format, including but not limited to any online service, any database or any part of the internet, or in any other format in whole or in part in any media whatsoever, without the prior written permission of the publisher.

While all due care is taken in writing and producing this magazine, neither CIArb nor RPL accept any liability for the accuracy of the contents or any opinions expressed herein. Printed by Gemini Press. ISSN 1743 8845 DISCLAIMER: The contents of this publication are not intended to be a substitute for either general or specific legal advice on individual matters, and readers are strongly encouraged to seek competent legal advice.

Registered Charity N0− 803725

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4-5 News: SIAC releases new international investment arbitration rules 6 Analysis: What changes are in store following CIArb’s launch of its new training 9

structure as part of its Golden Thread?

Law round-up: Gerald Metals Sa V Timis & Ors [2016] EWHC 2327 (Ch) and Sun Tian Gang V Hong Kong & China Gas (Jilin) Ltd [2016] HKEC 2128

REGULARS AND FEATURES 8 Opinion: Don’t keep adjudication cards too close to your chest, warns Claire King 10 Cover: Alan Redfern outlines the problems of keeping ethics and conflicts of interest in check in international arbitration

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How to… deal with arbitrations between parties with different resources Branch news: News from around the world, including Kenya and New York CIArb news: New President takes reins; ADR training in Turkey CIArb events: DAS Convention 2016; YMG conference What’s On: Round-up of upcoming training courses

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WATCH

12.25

The mean duration in months of a HKIAC arbitration Source: HKIAC

Ethics is a confidence barrier

Appointments underpin Hague panel

How to regulate the “ethical side of arbitration” remains an unsolved problem, delegates heard at CIArb’s DAS Convention in December in London.

Yet ethical standards are of the greatest importance in ensuring that “there is full confidence in the true neutrality and independence of the system and of individual arbitrations,” said the keynote speaker Lord Goldsmith QC PC and Partner at Debevoise & Plimpton LLP. “Arbitration as a successful alternative to litigation in court depends on showing that the participants can have at least as much confidence in the process as they can in court procedures,” he said.

Promoting public confidence in the process and allaying arbitration’s critics also relies on addressing concerns such as cost and speed, Goldsmith said.

Nevertheless, ethics remained a key barrier, despite much debate around it. “For the past 30 years at least, great energy and thought has gone into the topic.”

Bodies such as the IBA, as well as institutions including CIArb and the LCIA, have been proactive in issuing rules and guidance for the conduct of arbitrators.

One of the challenges, however, is that “different legal

PRIME Finance (the Hague-based Panel of Recognised International Market Experts in Finance) has confirmed 25 new appointments to its renowned panel of experts.

The latest members come from diverse financial and legal backgrounds in 13 countries. They include a former Minister of Treasury and Finance, Minister for Defence and Minister of Justice (Luxembourg), the President of the European Free Trade Association Court (Switzerland), and the Chairman of the Board of Piraeus Bank (Greece).

New members also include Sir Peter Cresswell FCIArb, former English High Court Judge and a Judge of the Qatar International Court; Sir Bernard Rix FCIArb, retired Lord Justice of Appeal (England And Wales); Matthew Gearing QC MCIArb, Global Co-Head of the International Arbitration Group and Partner of the Hong Kong office at Allen & Overy; and Professor Loukas Mistelis MCIArb, Director of the School of International Arbitration, Queen Mary University Of London.

PRIME Finance opened its doors in 2012 and joined forces with the Permanent Court of Arbitration, also based in The Hague, in 2015.

Professor Jeffrey Golden, Chairman of the PRIME Finance Foundation, said: “The collective experience of these experts adds another dimension to the PRIME Finance offering. The financial marketplace is now truly global, and we aim to ensure that the experts available to resolve disputes can draw on sufficiently diverse and broad-based backgrounds to enable PRIME Finance to deal with the variety and complexity of the cases now arising in an authoritative and cost-effective way.”

Arbitration participants must have faith in process

Lord Goldsmith QC PC: Varying standards undermine level playing field

traditions espouse different and equally legitimate ethical standards,” which can undermine the parties’ level playing field.

There have been multiple attempts to codify ethical conduct in international arbitration, he explained.

For example, Doak Bishop and Margrete Stevens produced a draft International Code of Ethics for Lawyers Practising before International Arbitral Tribunals.

“I believe there is, of course, merit in having a clear and universal set of standards, but it is difficult to define for all circumstances,” Goldsmith said.

He added that perhaps enough time had been spent on

identifying the issues and that more energy should now be devoted to visibly ensuring adequate enforcement. “But who is best placed to enforce the rules?” he asked.

“There is a lot to be said for arbitral institutions doing enforcement. I prefer that approach, though it needs to be clear on its own rules. And, of course, it does not deal with ad hoc arbitration.”

Goldsmith also urged that enforcement should be better publicised. “The public needs to know that these are not just rules but that they are also enforced.

That is the way, as CIArb’s Code of Conduct says, ‘to promote public confidences’”.

New year, new ICC arbitration scale of costs A new scale of costs in ICC arbitration cases came into effect on 1 January.

The initiative comes six years after the scales were last amended.

ICC’s administrative expenses and arbitrator fees are fixed according to the applicable scale of costs, based on the monetary value of the claims. Where

necessary, the ICC Court has discretion to fix the costs at an amount higher or lower than that which is generated by the costs scales.

Among other changes, the new scale provides for an increase of the non-refundable filing fee from US$3,000 to US$5,000 and an increase of the maximum allowable administrative

expenses from US$113,215 to US$150,000 in cases where the amount in dispute exceeds US$500 million.

ICC has also approved the adoption of a separate scale of costs for the newly introduced ICC Expedited Procedure provisions. This separate scale will become effective on 1 March 2017.

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DAS Convention → Jacomijn van Haersolte-van Hof, Director General of the London Court of International

Arbitration, was among the speakers at the annual conference, see page 16

New rules for Singapore SIAC launches specialised investment arbitration rules discretion for the arbitration to proceed during the challenge; • a procedure for early dismissal of claims and defences; • provisions for submissions by non-disputing parties and to enable the tribunal to order the disclosure of thirdparty funding arrangements and to take such arrangements into account when apportioning costs; • timelines for the closure of proceedings and the submission of the draft award; and • provisions relating to confidentiality and the discretionary publication of key information relating to the dispute.

Gary Born, President of the SIAC Court of Arbitration, said: “We are delighted to be launching the SIAC IA Rules 2017, which contain significant modifications to the SIAC Rules 2016 to reflect the special features and concerns arising in arbitration proceedings involving states, state-controlled entities and intergovernmental organisations.

“Both states and investors alike can be confident that, in resolving investment disputes under the SIAC IA Rules, they will be provided with a neutral, balanced, transparent and efficient procedural framework that addresses issues that ordinarily arise in international investment arbitration law.”

CHRISTIAN WHEATLEY

The Singapore International Arbitration Centre (SIAC) has released a specialised set of rules to address the unique issues present in the conduct of international investment arbitration.

The first edition of SIAC’s Investment Arbitration Rules (SIAC IA Rules 2017) came into effect on 1 January.

Some of the key highlights of the rules include: • a default list procedure for the appointment of the sole or presiding arbitrator, and an opt-in mechanism for the appointment of an emergency arbitrator; • strict timelines on challenges to arbitrators, with built-in

Arbitration centre to boost British Virgin Islands The British Virgin Islands launched its International Arbitration Centre (BVI IAC) last November with the aim of bolstering its reputation as a centre for global business and dispute resolution.

The BVI IAC, located at Ritter House on Wickhams Cay II, Tortola, will administer arbitrations under its own rules but also offers users of ad hoc or

other institutional arbitration rules premises and support services.

The centre will maintain a roster of more than 180 international arbitration and other dispute resolution practitioners, drawn from both common law and civil law jurisdictions.

They will be able to conduct arbitrations in a number of languages, including English,

Spanish, Portuguese, Russian, Chinese, French, German and Italian. Parties are also free to nominate their own arbitrators.

The centre’s board of directors is chaired by John Beechey CBE FCIArb, former President of the ICC’s International Court of Arbitration.

The centre is planning to hold a series of events during an ‘Arbitration Week’ later this year.

Sheppard elected Chair of LCIA board The new elected Chair of the London Court of International Arbitration (LCIA) board is Clifford Chance Partner Audley Sheppard QC FCIArb. He took up his role on 1 January, replacing Bill Rowley QC of 20 Essex Street at the end of his four-year term.

Sheppard has been a Vice-President of the Court since 2011 and an LCIA board member since 2015. He takes on the Chair’s role against a backdrop of a continuing rise in the institution’s caseload in 2016, said the LCIA. Sheppard said: “It is a tremendous privilege to be Chair of the board at such a pivotal time in the positioning of the LCIA and London itself on the world stage. I look forward to continuing the great work Bill has been doing and ensuring that the LCIA is on a sound financial footing. I will also be supporting Court President Judith Gill QC and the court in taking the lead on making the arbitration process more transparent, minimising time and costs and continuing to improve the diversity of the LCIA’s arbitrator pool.”

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ANALYSIS GOLDEN THREAD

CIArb is launching a new training structure as part of its Golden Thread.

Here, we outline the changes.

T

Firm foundation for excellence The Institute has embarked upon a plan to update and streamline its qualifications and global programme of training for arbitrators, adjudicators and mediators.

The purpose of this project is to confirm and underpin global recognition of CIArb’s rigour in upholding the standards of quality and expertise of its membership, and strengthen the foundations of consistency, fairness and transparency offered by the training and qualification pathways.

The revised courses will enable all branches and those members who give generously of their time and expertise as tutors and assessors to gain maximum benefit by bringing together consistent core training and development materials with a transparent and consistent assessment process.

The result will be a strengthened CIArb brand and reinforcement of its reputation for the highest quality and standards.

The revisions are being shaped using views and feedback from tutors and candidates.

Following consultation at the tutors’ symposium, branch meetings and Congress, the next stage is to trial the new qualifications and further shape them to meet the needs of the sector as part of ongoing discussion and engagement.

During this period, members’ views will help to inform any revisions needed. We would like to hear from you about the proposals below and continue an open, transparent and constructive dialogue as we roll out the new programme over the next 18 months.

Please email education@ciarb.org with any feedback.

What does the proposed new structure look like?

Each training and qualification pathway for each of the three disciplines will comprise three

separate modules. Module 2 will be common to all three pathways.

See diagram right.

The assessment process across all Introduction Courses and all pathways for all modules will be centralised and administered by 12 Bloomsbury Square (12BS).

Assessment will be by written examination for: • Module 1: Adjudication and Arbitration (International and Domestic) • Module 2: all disciplines • Modules 3: Adjudication and Arbitration (International and Domestic).

Assessment for the Mediation Pathway will be: • Module 1: live, observed, filmed and moderated mediation case study role play • Module 3: academic essay and written reflective practice analysis.

There will be three scheduled assessment dates for each module per year. This will enable branches

A NEW ASSESSMENT SYSTEM FOR CIARB’S INTRODUCTION COURSES As part of this project, the system of assessment for the Institute’s five Introduction Courses is also being revised. As of 2017, assessment will be carried out by an online multiple choice test, accessed via Moodle.

This will significantly reduce branches’ costs for marking and the moderating of written assignments. Branches will still be able to set their own discretionary fees for candidates attending an Introduction Course run by them.

More detail will be provided once pilots are completed. In the meantime, some key details of the assessment system are: • It will be based on a test comprising 60 multiple choice questions.

Questions are derived from the content of the Introduction Course workbooks.

• Candidates will be given a Moodle log in and password details to

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access the test. Instructions on how to work through the test are given after they log in.

• There is a short practice test for candidates before the real test.

• Candidates will have up to three attempts to pass.

• Results will be available immediately on completion of the test.

• The pass mark is 55 per cent.

• On passing, candidates can print their own certificate.

• Successful candidates can apply for ACIArb Membership and consider proceeding along one of the training and qualification pathways.

• The fee for the assessment will be £95 and is payable directly to 12 BS. • This fee will be separate from any fee that the branches choose to charge for attending an Introduction Course.

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Arbitration Pathway

Adjudication Pathway

Module 1 Law, Practice and Procedure

Module 1 Law, Practice and Procedure

Mediation Pathway Module 1 Training and Assessment MCIArb

Module 2 Law of Obligations

Module 2 Law of Obligations

Module 2 Law of Obligations

Module 3 The Process, Drafting, Evidence and Award Writing

Module 3 The Process, Drafting, Evidence and Decision Writing

Module 3 Mediation Theory and Practice FCIArb

to align their training programmes with those dates. We anticipate the dates for written assessments to be: • Module 1: January, May, September • Module 2: February, May, September • Module 3: January, July, October.

For assessment of each pathway module, 12BS will commission the setting of papers; the moderating of papers set; marking scripts; and moderating a representative sample of scripts. Assessment for the five Introduction Courses will be by online multiple choice test (see also panel opposite).

What will the course schedules look like?

See panel below.

What benefits do the changes bring?

The advantages of this revised

approach include a reduction in costs and administration time spent on all assessment-related activity by branches.

It also means CIArb can focus on the scheduling and delivery of training according to members’ needs, while maximising revenue.

It provides reassurance that the content of all pathway training is current, and prepared by practitioners who are acknowledged as experts in their fields.

Finally, it reinforces the Institute’s brand and reputation for the highest quality and standards.

What resources and support will be provided?

• Revised and updated workbooks to accompany each pathway module.

• A syllabus for the tutorials or

training courses (as appropriate) for each pathway module.

• Training for approved faculty members on the revised materials, syllabi and suggested approaches to delivery.

• PowerPoint slides and tutor notes for each module covering the core curriculum.

Will there be any regional variations?

Where there are regional variations in law, rules of practice and procedure, it is proposed that experts in the region be invited to write material to address the local need. That material would comprise content for the relevant part(s) of the relevant workbook(s) and assessment materials to address that content, for approval by 12BS. It is also proposed that

assessment of the regional-specific content be organised, run, marked and moderated by the relevant branch on a CPD basis. Regionalspecific content would not be assessed as part of the centralised assessment for pathway modules.

Are there any other changes?

12BS will be inviting regional experts to act as Regional Pathway Leaders (RPLs). The role of the RPL will be to oversee and manage the region’s training programme and manage the regional faculty.

12BS will continue to ensure that faculty members meet CIArb’s standard for inclusion and CIArb’s quality assurance standards.

When will the new structure take effect?

The piloting begins in mid-2017.

More details will be available in due course.

PROPOSED COURSE SCHEDULES Module 1 (arbitration and adjudication only) • Length of course: 3 months • Self-study: 2 periods • Tutorials: 2 • Revision period: 1 • Assessment: centralised; 1x 3-hour closed book exam

Module 2: TBC • Length of course: 4 months • Self-study: 2 periods • Tutorials: 2 • Revision period: 1 • Assessment: centralised; 1x 3-hour closed book exam

Module 3: TBC • Length of course: 3 months • Self-study: 2 periods • Tutorials: 2 • Revision period: 1 • Assessment: centralised; 1x 3-hour closed book exam

Self Study 1: Part A, First week of Part B, chapters 7-9 October Tutorial 1 First week of November Self Study 2: Part C, Second week Part B, chapters 5-6 of November Tutorial 2 Second week of December Revision Third week of December Exam Third week of January

Self Study 1:

Self Study 1: Part A, Part B Tutorial 1

Third week of January Third week of February Fourth week of February Fourth week of March First week of April First week of May

Second week of May Second week of June Third week of June Third week of July Fourth week of July Fourth week of September

Tutorial 1 Self Study 2: Tutorial 2 Revision Exam

First week of February First week of March Second week of March Second week of April Third week of April Third week of May

Third week of May Third week of June Fourth week of June Fourth week of July First week of August Third week of September

Fourth week of October Fourth week of November First week of December Third week of January Fourth week of January Fourth week of February

Self Study 2: Part C Tutorial 2 Revision Exam

First week of October First week of November Second week of November Second week of December Third week of December Fourth week of January

Fourth week of March Fourth week of April First week of May First week of June Second week of June Second week of July

Third week of June Third week of July Fourth week of July First week of September Second week of September Second week of October

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OPINION ADJUDICATION

Claire

King The recent adjudication case Beumer v Vinci highlighted the dangers of keeping your cards too close to your chest

Claire King FCIArb is a Partner at Fenwick Elliott LLP

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legal proceedings in such THE RECENT CASE OF BEUMER circumstances saying quite Group UK Limited v Vinci different things on the same point.

Construction UK Limited holds That alone should provide obvious some important lessons for direction to the industry of the adjudicators and party type of behaviour this constitutes.” representatives alike as to the At the heart of the issue was the standard of behaviour the courts fact that one party advanced an expect where one party is inconsistent position in two conducting parallel adjudications adjudications. However, the that stretch up and down the problem was exacerbated by the contractual chain. failure of the common party and These particular enforcement the common adjudicator to proceedings related to the second disclose the existence of the other adjudication between Beumer adjudication. Mr Justice Fraser and Vinci in a dispute regarding noted: “This… led to a whole host the baggage handling system at of problems that either would not Gatwick airport (the Vinci have arisen, or, Adjudication). had they arisen Beumer was the A parallel during the sub-contractor appointment adjudication, and Vinci was the main contractor. should be disclosed could have been The by an adjudicator dealt with as part of that process.” adjudicator was before a second Adjudicators also (unbeknown appointment are impartial to Vinci at the is accepted tribunals. The time) appointed involvement of on a parallel an adjudicator with other adjudication between Beumer adjudications does not itself and a subcontractor, Logan, (the constitute a conflict. However, the Logan Adjudication) in relation to judge emphasised that it was the same project. important that such involvement Why did this matter? Well, was disclosed. Otherwise there despite the fact that the same was an “obvious risk… of leading a adjudicator was determining both fair minded and informed disputes, Beumer advanced a observer to conclude there was a startlingly contrasting position in real possibility of bias”. the two adjudications.

Mr Justice Fraser went on to In the Vinci Adjudication, hold that a breach of natural Beumer argued it achieved justice was “plainly material”. The airport operational readiness question of the correct date for the (AOR) on 16 December 2015. In the AOR was central to the questions Logan Adjudication, it argued that of delay. Delay was central to Logan (and therefore Beumer) considerations of whether had not in fact achieved AOR by instructions were compensation April 2016. As Mr Justice Fraser events. As such, the adjudicator’s stated: “I seriously doubt… that a failure to disclose the existence of director of a company could sign a the other adjudication had statement of truth in two sets of

deprived Vinci of relying on the Logan Adjudication as support for its position. If the adjudicator had disclosed his position, Vinci could have sought an order from the adjudicator for the disclosure of material in the other adjudication.

So what lessons can be drawn by adjudicators asked to act in parallel adjudications on the same project where there are differing parties?

A parallel appointment should be disclosed by an adjudicator before a second appointment is accepted and, indeed, to all parties in relation to both adjudication appointments. That way no party is at a disadvantage.

Equally, this should ensure that the common party adopts a consistent factual position in those parallel adjudications.

Should adjudicators have concerns about inconsistent positions being adopted they may, perhaps, wish to request that witness statements are signed by statements of truth.

It remains to be seen what the impact of this case will be in terms of disclosure requests being made by parties involved with parallel or related adjudications in the future. For example, consider a situation where a party in Vinci’s position requests disclosure of material in a parallel adjudication but has the request refused by the third party on the grounds of confidentiality. How should the adjudicator proceed? They may well be placed in an impossible position, particularly if they know material from another parallel adjudication is relevant.

This is an area that practitioners and adjudicators will need to keep an eye on.

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LAW

An overview of recent key court cases

ROUND-UP ENGLISH HIGH COURT REFUSES TO GRANT URGENT RELIEF UNDER THE ARBITRATION ACT 1996 WHERE SUCH RELIEF COULD BE GRANTED UNDER LCIA RULES

THE CASE

Gerald Metals Sa V Timis & Ors [2016] EWHC 2327 (Ch)

○ ARBITRATION

GERALD METALS HAD ENTERED INTO AN ARRANGEMENT with Timis Mining (SL) Limited, whereby Gerald Metals advanced $50 million to the company to finance the development of an iron ore mine. The company was to sell the ore extracted to Gerald Metals and to deliver it in monthly shipments. The sum advanced was to be repaid in instalments that were to be deducted from the price of the shipments.

The company was controlled by a trust holding assets stated to be in excess of $2 billion. Its trustee guaranteed payment of all sums due to Gerald Metals under the arrangement up to a maximum of $75 million. The guarantee was subject to arbitration under LCIA Rules.

Following defaults by the company, Gerald Metals commenced arbitration proceedings against the trustee under the guarantee. Before the constitution of the tribunal, Gerald Metals applied to the LCIA for the appointment of an emergency arbitrator with a view to seeking emergency relief, including an order to prevent the trustee from disposing of the trust’s assets. It responded to the application by giving various undertakings. Following these undertakings, the LCIA rejected the application for the appointment of an emergency arbitrator. Gerald Metals applied to the High Court for urgent relief under Section 44 of the Arbitration Act 1996. ○ THE JUDGMENT

The court considered its power to grant urgent relief under the Act.

The test of urgency is by reference to the power and practical ability a tribunal has to grant effective relief within the relevant timescale.

Article 9 of the LCIA Rules provides that, in cases of exceptional urgency, any party may apply to the LCIA for the appointment of an emergency arbitrator or the expedited formation of the arbitral tribunal.

Leggatt J held that if an expedited tribunal could be constituted or an emergency arbitrator appointed within the relevant timeframe and the tribunal or emergency arbitrator could practically exercise the necessary powers, the test of urgency under section 44(5) of the Act could not be satisfied and the court would not have power to grant urgent relief.

As the LCIA had considered the application for an emergency arbitrator and dismissed the application, there was not sufficient urgency to satisfy the requirements under Article 9 and it could not be urgent enough to fall within section 44(3). The application was dismissed. ○ WHAT IT MEANS

Arbitration rules that give the parties options to obtain urgent relief may, as a result, preclude the courts from granting urgent relief.

The CIArb Arbitration Rules allow for the parties to opt out of the emergency arbitrator rules, and parties wishing to retain the entitlement to apply to court for urgent relief may wish to consider excluding these provisions in the rules.

HONG KONG COURT SETS ASIDE EIGHT-YEAR-OLD ARBITRAL AWARD AS PLAINTIFF IMPRISONED

THE CASE ○ ARBITRATION

Sun Tian Gang V Hong Kong & China Gas ( Jilin) Ltd [2016] HKEC 2128

IN 2005, THE DEFENDANT COMMENCED ARBITRATION proceedings against the plaintiff for breach of guarantees and warranties provided under an agreement for the sale of shares. In March 2007, an award was issued which ordered Sun to pay damages to the defendant and declared that the defendant was entitled to withhold a tranche of the sale price for the shares. Sun asserted that in August 2005 he had been arrested and, until November 2010, was imprisoned. He was then under house arrest in Beijing. In March 2012 all criminal charges were withdrawn against Sun, who fled to the US in 2013 before returning to Hong Kong in 2014.

Sun’s position was that the arbitration had commenced without his knowledge and the notice of arbitration was not served validly so had no proper notice of the arbitration. He was not represented at the arbitration, and the award, made in his absence, was never validly served on him and was in violation of public policy. He asserted that his incarceration was known to the defendant who withheld this knowledge from the tribunal. The award should therefore be set aside. Sun only discovered the award in October 2015 by chance.

The defendant’s position was that notice had been served under the Model Law, the application to set aside was out of time and the court had no power to extend the time limit under the Model Law. ○ THE JUDGMENT

The court found that the provisions on deemed service in the Model Law

and Article 2 of the UNCITRAL Rules were not intended to derogate from the principles of natural justice and fairness therefore the deeming provisions had been rebutted based on Sun’s incarceration.

The court found that Sun was not able to participate in the arbitration and that enforcement of the award would be contrary to public policy so as to make enforcement of the award even more repugnant. The court determined that the defendant had a duty, which it breached, to inform the tribunal of Sun’s inability to attend the arbitration.

The court held that the award was not validly served on Sun for the same reasons that the deeming provisions had been rebutted in respect of the notice. It found there were good reasons to extend the time limit for the application to set

aside the award, and the discovery of the award in 2015 could not constitute deemed receipt of the award for the purposes of the time limit. ○ WHAT IT MEANS

The judgment confirms the need for fairness and due process in arbitral proceedings and that in circumstances where one party is aware of the other party’s inability to participate in the proceedings, it may have a duty to inform the tribunal of the reason.

The full judgment is available at:

→ http://legalref.judiciary.gov.hk/lrs/ common/search/search_result_detail_ frame.jsp?DIS=106121&QS=%2B&TP=JU

Both reports by Tom Cadman ACIArb, Director of Governance and Legal Services at CIArb. February 2017 | THERESOLVER

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ETHICS INTERNATIONAL ARBITRATION

Striving for a sense of balance Ethics and conflict of interest issues remain major and complex concerns in international arbitration.

Leading international arbitrator Alan Redfern outlines some of the problems and the work going on to bring some clarity to the matter

ADR, or alternative dispute resolution, is generally taken to refer to methods of dispute resolution that are alternative to court proceedings – such as arbitration, adjudication and mediation. My comments will relate primarily to arbitration and, in particular, to international arbitration.

Parties who agree to refer their disputes to arbitration need to be satisfied that there will be a fair resolution of their dispute by an impartial tribunal of arbitrators. They need to have confidence in the process. To give them this confidence, national laws governing arbitration, such as the Arbitration Act 1996, and the rules of institutions that administer arbitrations, such as the LCIA, the ICC and CIArb, require that arbitrators should be ‘impartial’ and usually (but not always) that they should also be ‘independent’.

‘Independence’ is concerned with the relationships that an arbitrator or prospective arbitrator may have with the parties and others involved in an arbitration. For instance, is there a close friendship between the arbitrator and the managing director of one of the parties? Such a relationship is susceptible to an objective test because it has nothing to do with the prospective arbitrator’s state of mind.

10

ISTOCK

Why is addressing conflict of interest issues important for safeguarding the impartiality of ADR?

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ETHICS INTERNATIONAL ARBITRATION By contrast, ‘impartiality’ relates to any actual (or apparent) bias of an arbitrator, either in favour of one of the parties or in relation to the issues in dispute. Bias is subjective. It is difficult to identify objectively.

It is only likely to become apparent during the course of the proceedings.

At the outset of an arbitration, a prospective arbitrator will usually be required to complete a declaration of independence. This will state that he or she is and intends to remain independent of the parties. At the same time, it will disclose any relationship that might appear to cast doubt upon this declaration. It is often difficult for a prospective arbitrator to know what relationships should or should not be disclosed. In order to assist, the International Bar Association (IBA) issued a set of guidelines entitled the IBA Guidelines on Conflicts of Interest in International Arbitration.

These were put together by an international group of lawyers, who worked for several years on them. They were first published in 2004, but updated in 2014.

How do they work?

The guidelines operate on what has become known as the ‘traffic light’ system, with three lists – the Red List, the Orange List and the Green List. Some relationships on the Red List, such as where the arbitrator has a significant financial interest in one of the parties, cannot be waived by the parties. Other items on the Red List, such as where the arbitrator has given legal advice on the dispute to one of the parties, must be declared but they may be waived by the parties if they are prepared to do so.

Relationships on the Orange List, such as the arbitrator and counsel for one of the parties being members of the same set of barristers’ chambers, must be disclosed but may be waived by the parties.

Relationships on the Green List – for instance, where the arbitrator has a relationship with counsel for one of the parties through membership of the same professional association – do not need to be disclosed.

In order to enforce compliance with the requirement that arbitrators should be independent and impartial, there are provisions, both in national law and in the rules of established arbitral institutions, for the ‘challenge’ of an arbitrator if circumstances exist that give rise to justifiable doubts as to that arbitrator’s impartiality or independence.

These provisions should go a long way to providing assurance to those taking part in arbitrations that, at the very least, they have a 12

The guidelines are just that.

They do not cover every contingency; and you have to use common sense and judgment fair-minded and independent tribunal determining their dispute. However, the guidelines are just that. They do not cover every possible contingency; and you have to use common sense and judgment in applying them.

What is the difference between conflicts of interest and ethical issues?

There is a sharp distinction between ‘conflicts of interest’ and ‘ethical issues’. A conflict of interest tends to arise from relationships and is relatively easy to identify. As I have indicated, so far as relationships between the arbitral tribunal and the parties and their representatives are concerned, there are firm provisions in place (the traffic light system) to ensure, as much as is reasonably possible, that the members of the arbitral tribunal are independent and impartial and that there is no conflict of interest with the parties or their representatives.

Ethical questions are more complex. Difficult

ethical issues are likely to arise in arbitration and in particular in international arbitration.

What is the arbitral tribunal to do, for instance, where it suspects that the dispute before it has been deliberately contrived and then rapidly settled, with the parties asking the tribunal to embody their ‘settlement’ in a consent award, through which an unlawful payment of money may be successfully hidden? An arbitral tribunal clearly needs to be particularly watchful in such circumstances and to have careful regard to any money laundering provisions that are in force and applicable to the case before it.

Again, what is an arbitral tribunal to do if it suspects that the documents before it – for example, invoices purporting to show that payments have been made – are in fact forged?

It would obviously be wrong to make an award on the basis of documents that a tribunal had reasonable grounds for believing to be forged, and no responsible tribunal could be expected to do so.

Lastly, by way of example, what if the arbitral tribunal is shown evidence that the contract upon which the arbitration was based was procured by payment of a bribe? In one case in which this happened, World Duty Free Company Limited v Republic of Kenya (ICSID Case No ARB/00/7), the tribunal had no hesitation in dismissing the claim, which it considered to be in clear breach of international public policy.

So do current codes of conduct, professional standards or other guidelines offer clarity on ethical issues that arise?

The straight answer is no. The way in which party representatives conduct a case, and the obligations which they are under in doing so, will depend very much upon the rules of the professional association to which they belong – with each particular professional association having its own particular rules of conduct.

There is a patchwork quilt of regulation, differing from profession to profession and from country to country.

For instance, the Bar Standards Board has a very comprehensive set of rules. There are certain core duties, which are mandatory.

These require a barrister to act in the best interests of his or her client; to act with honesty and integrity; to maintain his or her independence; to keep the affairs of each client confidential; and so forth. There are then more specific rules governing the duty of a barrister to the court and, in particular, a duty not to mislead the court.

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It is to be expected that a set of rules designed for a profession whose principal activity is that of advocacy will have clear and detailed rules on the conduct of its members before courts or tribunals. It would be unreasonable to expect codes of conduct governing other professions, such as medicine or engineering, to enact detailed rules governing the conduct of their members in court or before arbitral tribunals.

Different countries also have their own professional standards that reflect varying cultural norms. Unsurprisingly, these differing codes can lead to ethical issues arising in the course of an arbitration. It is obviously unfair if the lawyers for one party are allowed by their own professional code of conduct to communicate throughout the proceedings with the arbitrator appointed by their client (and to obtain guidance as to the issues on which the tribunal is with them and those on which it is against them) whilst the lawyers for the other party are precluded from doing so.

Again, it is obviously unfair if the witnesses for one party have been extensively coached by counsel as to how they should answer, or not answer, questions from opposing counsel or from the tribunal, while witnesses for the other party are left to work this out for themselves. The question – to coach or not to coach – is very much left to the cultural and ethical background of the different lawyers involved in the case; and so there is no guarantee of a ‘level playing field’.

What is plainly needed is a code of conduct for party representatives, towards which some steps have been taken. In 1987, the IBA established Rules of Ethics for International Arbitrators. These were a set of principles designed to establish ground rules as to qualities required of arbitrators. They were largely replaced in 2004, when the association adopted its IBA Guidelines on Conflicts of Interest in International Arbitration (revised and updated in 2014).

A more recent initiative on the part of the IBA has been the issue in 2013 of the IBA Guidelines on Party Representation in International Arbitration. These guidelines were inspired by the principle that party representatives (usually lawyers) should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense, including tactics aimed at obstructing the arbitral proceedings. The aim is to have an agreed international standard governing lawyers’ behaviour in an international arbitration, given that lawyers have their own professional regulations that differ from country to country.

instance, that a party representative may assist a witness in compiling his or her evidence and may discuss this evidence with the witness.

This is a step forward from the position in some civil law countries, where lawyers are not allowed under their own rules of conduct to talk to witnesses. But it does not, and cannot be expected to, go so far as the Bar Standards Board rule, which states: “You must not rehearse, practice with or coach a witness in respect of their evidence.”

How can codes of conduct be improved to maintain the integrity of the ADR process?

There is a patchwork quilt of regulation, differing from profession to profession and from country to country The guidelines deal with a series of matters, including communication with arbitrators, disclosure of documents and the evidence of witnesses and experts. So far as witnesses and experts are concerned, the guidelines acknowledge that a party representative may assist witnesses in the preparation of their witness statements and may assist experts in the preparation of their expert reports. They also recognise that, consistent with the principle that the evidence given should reflect the witness’s own account of relevant facts, events or circumstances (or the expert’s own analysis or opinion) the party representative may meet or interact with witnesses and experts to discuss and ‘prepare’ their prospective testimony.

The guidelines are a major step forward for international arbitration. But the IBA has no legislative power. It is for the parties and tribunal to decide whether to accept them. It should be noted too that the guidelines do not answer every problem that might arise and it is unreasonable to expect them to. They say, for

Disputes involving very substantial sums of money are now being brought to arbitration.

Where they are brought under the ICSID Convention, they become matters of public knowledge; and where awards are made against the state or state agency concerned, there is often a public outcry at a system of ‘private justice’ administered by ‘private individuals’ condemning the state (and so its taxpayers) to pay substantial sums by way of damages.

There is a case for distinguishing investor/ state arbitrations from the general run of international commercial arbitrations, but that is a topic for another day! However, the criticisms levelled at investor/state arbitrations, and (for instance) at the Tapie arbitration in France, are likely to shake confidence in international commercial arbitration, which is, to say the least, unfortunate.

This is why it is important to insist upon the impartiality and independence of arbitral tribunals and upon the professional integrity of those who appear before arbitral tribunals.

Much depends on the tribunal itself, since lawyers from different countries are likely to have different practices. The tribunal needs to be able to identify and deal with any cultural or ethical issues. Awareness of any such issues will come through experience, training and education.

It doesn’t seem to me that an international code of ethics for arbitrators or practitioners is feasible. How can you get 200 nations with different cultures and practices to agree to a unified code? If we are aiming for a code of conduct that will be accepted internationally, it may come from the IBA. However, it’s all a work in progress.

Alan Redfern FCIArb is an international arbitrator and co-author of the seminal Redfern and Hunter on International Arbitration, now in its sixth edition.

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HOW TO…

...deal with arbitrations between parties with different resources

By Adam Samuel Illustration: Cameron Law

A

ARBITRATIONS BETWEEN people with different resources have long been problematic. At worst, the poorer party may effectively be disbarred from pursuing a claim by an inability to afford the filing or arbitrator fees. As a result, pre-dispute arbitration clauses involving consumers are presumed to be unfair and so invalid against the consumer (not the firm) under the Consumer Rights Act, which in turn implements a 1993 EU Directive. Section 91 of the Arbitration Act 1996 does the same for small value claims. Where there is no legal bar to arbitration, what are the issues to think about when such an imbalance exists?

a case be brought 1 Can in practice?

MORE INFO Looking to appoint an arbitrator?

DAS can help you find a suitably qualified arbitrator with the right knowledge and experience. For any enquiries please contact Keisha Williams. T: +44 (0) 20 7421 7444.

Email DAS@ciarb.org

Adam Samuel FCIArb is an attorney, arbitrator, consumer financial services expert and originally qualified as a barrister.

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Where these legislative protections do not exist, the weaker party may still be prevented from pursuing the matter by the costs involved.

The US practice of insisting on the stronger party agreeing in advance to pay the costs of both sides breaches section 60 of the Arbitration Act 1996. There is German case law that challenges the enforceability of an agreement where one party cannot afford to participate in the arbitration.

However, the English decisions point in the opposite direction.

your own 2 Do research

Arbitrators faced with an obvious difference of resources between the parties have to deal with a classic arbitral dilemma. They must not appear to bend over

backwards to help one party for fear of losing their neutrality. At the same time, a failure by the tribunal to do its own research can lead to an incorrect and, in some instances, unjust result. The key rule is that arbitrators must always reveal to the participants the contents of their own personal research or any theories on which they might base their decision if these have not been brought up by one of the parties. Everybody must have an opportunity to contradict the arbitrator’s opinion in this situation.

3 Offset the imbalance

In discussions held by CIArb’s Practice and Standards Committee while I was a member, there was a strongly held consensus that reaching the right result was far more important than the risk of treating the parties unequally. It was felt that an arbitrator faced by an imbalance of resources had to fill the vacuum created in this way by essentially presenting what should have been the weaker party’s case to the arbitration and allowing the stronger party to contradict it.

the right 4 Ask questions

The arbitrator can sometimes even up the parties’ resources in a more subtle way. After crossexamination, there is nothing to stop the arbitrator from asking questions – perhaps the ones that should have been asked by the weaker side’s lawyer. A tribunal secretary can also be used here to list the necessary points for the arbitrator to raise.

5 Review the options

Arbitration may not be the best way to resolve cases where there are significant resource differences. The arbitrator is isolated without the usual resources of an effective litigant and unable to test fully the stronger party’s case. In the UK, the preferred solution for consumer and small business disputes about financial services matters is to use an ombudsman scheme. Such entities have institutional knowledge about the technical sides of cases and the common behaviour of businesses such as, or in the position of, the respondent.

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CIArb NEWS BRANCH ROUND-UP KENYA

Successful year boosts ADR awareness The Kenya Branch had a busy 2016. The book Arbitration in Africa: A Review of Key Jurisdictions, by Kamal Shah, John Miles and Tunde Fagbohunlu, was published in February. An official launch took place in Nairobi in August, with further events in Lagos, Paris and London.

Leaders and members of the branch also attended a number of arbitration conferences, including the East Africa International Arbitration Conference in Kampala, Uganda, in September.

Also in September, the branch supported events for the Law Society of Kenya’s Legal Awareness Week. Members

visited local universities to promote the theme ‘Improving Access to Justice through

Alternative Dispute Resolution’.

The Nairobi Centre for International Arbitration was also

launched this year. The branch is a key stakeholder and will work with the government to promote ADR.

LONDON, UK

EUROPE

ADR in sports

Rome conference

The London Branch held a seminar on ‘Arbitration and ADR in Sports – Olympic Challenges?’ on 6 October. It was generously hosted by Fladgate LLP. Chaired by Irvinder Bakshi C.Arb, Chair of the London Branch, the panel of experts comprised Professor Antonio Rigozzi of Lévy Kaufmann-Kohler, Murray Rosen QC FCIArb of 4 New Square, Brent J Nowicki of the Court of Arbitration for Sport (CAS) and Mark Buckley of Fladgate.

The branch also examined a number of schemes set up to assuage the injuries of victims of conflict in its seminar on ‘Compensation after Conflict’ on 17 November. The seminar was generously hosted by Latham & Watkins LLP. Chaired by the distinguished Michael Bell OBE, the panel comprised Chartered Arbitrator Arthur Harverd C.Arb; Charles Claypoole, Partner, Latham & Watkins; Declan O’Mahony of EULEX; and John Tackaberry QC C.Arb of 39 Essex Chambers.

The AGM and conference of the European Branch will be held in Rome on 28-29 April on the theme of ‘ADR In The Midst Of (Br)Exits.’

It will explore what Britain’s Brexit process and Donald Trump’s vowed withdrawal from US trade agreements mean for ADR and the possible consequences of these changes.

Look out on the branch’s website for registration details.

Wales and Border Counties Mediators. The keynote speaker will be Andrew Goodman FCIArb of the Standing Conference of Mediation Advocates. For more information, please email paul.newman@3pb.co.uk.

The branch has now made available on the CIArb website a film of Lord Judge’s lecture ‘Wales and Magna Carta’, presented in Cardiff in December 2015, and the text of HHJ Seys Llewellyn QC’s Mather-Jackson lecture, held in Usk in October last year, on ‘Whether to Rebuild a Judicial Offa’s Dyke: Advantage or Disadvantage?’.

and Fellowship courses planned to start shortly. The branch also has a very active Young Members Group that regularly organises events.

The next Branch Annual Dinner will be held at the Trades Hall of Glasgow on 24 March 2017.

Riara and Jomo Kenyatta university students explored the theme of improving access to justice through ADR

WALES, UK

ADR symposium The branch has a new steering group, comprising Paul Newman FCIArb (paul.newman@3pb.co.uk), Owain Rhys James FCIArb (orj@ civitaslaw.com), David BentleyMiller ACIArb (david@ pendragonlaw.co.uk) and Jonathan Sellick FCIArb ( jon@ sellickconsultltd.co.uk).

The keynote event for 2017 will be the Cardiff University Third Annual ADR Symposium on 25 April. It is sponsored by CIArb, with the assistance of 3PB Barristers and the Association of

SCOTLAND, UK

New training The Scottish Branch (together with its Northern Chapter, based in the Aberdeen area and covering northern Scotland) continues its ambitious programme. In the past few months, it has provided seminars on ‘hot tubbing’ of experts, proving loss, and mediation. The branch now runs educational courses to Fellowship level and recently held an entrylevel course, with Membership

NEW YORK

Joint course The NY Branch and Columbia Law School Center for International Commercial and Investment Arbitration are holding their joint annual week-long course on international arbitration on 5-9 June. On 12-14 June will be the Accelerated Route to Fellowship Course. For further information, go to www.ciarbny.org.

NORTH EAST, UK

Keating update In December, the branch held its annual Keating Construction Law Update, hosted by Leeds Beckett University. Adrian Williamson QC MCIArb of Keating Chambers was the guest speaker.

• For more branch news, visit

→ www.ciarb.org/branchnews February 2017 | THERESOLVER

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CIArb NEWS New President takes the reins at Institute Elections also bring in new Deputy President, Vice President and Trustees The start of 2017 sees Professor Dr Nayla Comair-Obeid C.Arb take over as CIArb President, succeeding Datuk Professor Sundra Rajoo C.Arb. Following the Presidential elections that took place last November in London, James Bridgeman C.Arb becomes Deputy President for 2017, and will become President in 2018.

Thomas Halket C.Arb takes over as Vice President this year and will become Deputy President in 2018 and lead as President in 2019.

Bridgeman has shown a long-standing commitment to the Institute, having given almost 25 years’ service to the committee of the Irish Branch

Deputy President James Bridgeman

serving as Honorary Secretary, Vice Chair, Chair and more recently as Trustee.

Halket has also served the

Institute in a number of positions, including as Chair of the former New York Chapter, then as Chair of the Technology Subcommittee, Deputy Chair of the Board of Management, and most recently as Vice Chair and now Chair of the New York Branch.

Director General of CIArb Anthony Abrahams MCIArb congratulated them both on their new roles.

Meanwhile, six individuals were elected to the Board of Trustees from Australasia, Great Britain, Europe, Ireland and the Americas. They took up their role on 1 January.

The new trustees are: Australasia region – John Wakefield FCIArb

Americas region – Ann Ryan Robertson FCIArb European region – Dr Axel Reeg MCIArb Great Britain region – Anthony Marks MCIArb and Marion Smith QC FCIArb Ireland region – Arran DowlingHussey FCIArb In addition, Jonathan Wood MCIArb has become the new Chair of the Board of Trustees and Michael Tonkin C.Arb takes over as Treasurer. Jane Gunn FCIArb is the new Chair of the Board of Management.

Wood said: “I am delighted to have been appointed as Chair of the Board of Trustees. I thank my predecessor, David Brynmor Thomas, for his hard work.”

Turkish delight as first round of CIArb training delegates qualify CIArb is delivering ADR training in Turkey following a joint agreement to develop and promote alternative dispute resolution education in the country.

Last year, a collaboration agreement was signed between CIArb, the Bursa Chamber of Commerce and Industry Arbitration and Mediation Center (BTSOTAM) and Uludağ University to promote and develop the education and training of dispute avoidance and dispute resolution techniques.

Under the agreement signed in May, BTSOTAM and Uludağ University will undertake the training and education of judiciary, practitioners and other interested parties within Turkey in the field of ADR. As such, CIArb held an Introduction to International Arbitration course in Bursa in June and October 2016. The first was held at the university and the second at the Bursa Chamber of 16

Captions clockwise from top. An agreement was signed on 2 May in Bursa to develop ADR training.

Left to right: Sait Gürlek (Regional Courts of Justice Chief Public Prosecutor of Bursa), Abdülkadir Şahin (Chief Public Prosecutor of Bursa Court), Ibrahim Burkay (President, BTSO), Prof Dr Yusuf Ulcay (Chancellor, Uludağ University) and Anthony Abrahams (Director General, CIArb).

Certified Public Accountants (BSMMMO). CIArb Director General Anthony Abrahams MCIArb attended the October course to present participants with their certificates and give a speech.

Both courses were well attended, and, for the first time in CIArb’s history, training was delivered in Turkish.

In August 2016, CIArb also held Module 1 and Module 2 mediation training in Izmir.

All of the 16 participants from Turkey completed the assessment successfully and, as a result, qualified for CIArb membership.

They were presented with certificates by Anthony Abrahams, following the arbitration training in October.

A gathering at the Bursa Chamber of Commerce and Industry during CIArb Director General Anthony Abrahams’ visit in October. Left to right: M Akif Altan (Deputy Secretary General, BTSO), Bennar Aydogdu (Member of Board of Management, CIArb), Anthony Abrahams, Ibrahim Burkay (President, BTSO), Cüneyt Şener (Vice President, BTSO) and Irmak Aslan (President, BTSOTAM).

Anthony Abrahams presents certificates to mediation training participants.

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CIArb EVENTS DAS CONVENTION 2016 CIArb’s DAS Convention was held in London on 2 December. The theme was ‘Ethics and Conflicts of Interest in ADR’. The keynote speaker was Lord Goldsmith QC PC, Partner at Debevoise & Plimpton LLP.

Keynote speaker Lord Goldsmith QC PC

Panellists discussed standards, guidelines and rules for dispute resolvers

Director General Jacomijn van Haersolte-van Hof outlined the LCIA perspective on regulating ethical conduct

The conference was very well attended

YMG CONFERENCE 2016 On 18 November, the YMG held its London Conference hosted by White & Case LLP. Preceded by a joint networking breakfast with Young Arbitral Women Practitioners, the well attended conference addressed the ‘Life of a Dispute’.

The keynote address was given by Gary Born of WilmerHale.

Gary Born of WilmerHale; Amanda Lee FCIArb, Chair of the Conference Planning Committee; and Simon Maynard ACIArb, Chair of the YMG

Carine Dupeyron speaking about ‘The End Game’

Friederike Schäfer of the ICC Conference delegates considered the ‘Life of a Dispute’

A workshop was held on disputes against sovereigns

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WHAT’S ON

ONLINE

For further information on professional training courses: → ciarb.org/courses For branch courses around the world: → ciarb.org/branches Education Team • T + 44 (0)20 7421 7439 • F + 44 (0)20 7404 4023 • E education@ciarb.org

TRAINING

February – June 2017 CIArb professional training diary Unless otherwise stated, all courses below are held in London.

KEY: GENERAL ADR ARBITRATION INTERNATIONAL ARBITRATION ADJUDICATION MEDIATION

Introduction to ADR Online Open entry Duration: 1 day Fee: £36 An explanation of the main disciplines of alternative dispute resolution.

Module 1 (Mediation) 14-17 & 20 March or 15-19 May Duration: 5 days Fee: £2,400 Intensive five-day course for those who wish to become an accredited mediator.

Introduction to ADR 16 February or 9 May Duration: 1 day Fee: £480 An explanation of the main disciplines of alternative dispute resolution.

Module 2 (Mediation) 21 March or 22 May Duration: 1 day Fee: £1,560 An assessment programme aimed at candidates who wish to become a CIArb Member and CIArb Accredited Mediator.

It builds on the CIArb mediation training (Module 1 Mediation) course.

Introduction to International Arbitration 2 March or 21 June Duration: 1 day Fee: £480 An introduction to the general principles of international arbitration.

Module 1 (Law of Obligations and Civil Evidence) 1 March Duration: 9 months Fee: £1,320 For those wishing to gain a firm understanding of the key elements of obligations and evidential law that affect civil and commercial disputes.

Module 4 (Mediation) Open entry Duration: 6 months Fee: £660 Demonstrate robust academic knowledge of a chosen area of mediation.

Introduction to Domestic Arbitration 26 April Duration: 1 day Fee: £480 Provides an understanding of the general principles of domestic arbitration.

Module 2 (International Arbitration) 9 March Duration: 5 months Fee: £1,320 This module provides detailed knowledge of the law underpinning international arbitration.

Module 1 (Law of Obligations and Civil Evidence) 1 March Duration: 9 months Fee: £1,320 For those who wish to gain a firm understanding of all the key elements of obligations and evidential law that affect matters in civil and commercial disputes.

Module 3 (International Arbitration) 16 March Duration: 7 months Fee: £1,860 Provides detailed knowledge of the main elements of international arbitration.

Module 3 (Domestic Arbitration) 16 March Duration: 7 months Fee: £1,860 Provides detailed knowledge of the main practice and procedural elements of domestic arbitration.

Module 4 (International Arbitration) 29 March Duration: 5 months Fee: £1,320 Provides the knowledge required to write an international arbitration award.

Module 4 (Domestic Arbitration) 29 March Duration: 5 months Fee: £1,320 Provides the knowledge required to write a final, reasoned and enforceable domestic arbitration award.

Accelerated Route to Membership (International Arbitration) 15-16 February Duration: 2 days Fee: £1,320 Assesses whether the candidate has the knowledge required to understand the process of international arbitration.

Accelerated Route to Membership (Domestic Arbitration) 15-16 February Duration: 2 days Fee: £1,320 A fast-track route to membership via the domestic arbitration pathway.

Accelerated Route towards Fellowship (International Arbitration) 23– 24 March Duration: 2 days Fee: £1,860 For those with substantial unassessed knowledge of international arbitration.

Introduction to Mediation 28 February Duration: 1 day Fee: £480 An introduction to the general principles of mediation.

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Accelerated Route towards Fellowship (Domestic Arbitration) 23-24 March Duration: 2 days Fee: £1,860 For those with substantial unassessed knowledge of domestic arbitration.

Family Arbitration Training (Financial Scheme) 4-5 February Duration: 2 days Fee: £1,920 See Recommended Course (right) for full details.

Introduction to Construction Adjudication 16 May Duration: 1 day Fee: £480 An introduction to good practice and procedure in construction adjudication.

Module 1 (Law of Obligations and Civil Evidence) 1 March Duration: 9 months Fee: £1,320 Suitable for individuals who wish to gain an understanding of all the key elements of obligations and evidential law that affect matters in disputes.

Module 2 (Construction Adjudication) 12 April Duration: 5 months Fee: £1,320 Provides detailed knowledge of the law underpinning the process and procedure of construction adjudication.

Module 3 (Construction Adjudication) 8 March Duration: 6 months Fee: £1,860 Provides detailed knowledge of the main practice and procedural elements of construction adjudication.

Accelerated Route to Membership (Construction Adjudication) 22–23 February Duration: 2 days Fee: £1,320 Assesses whether the candidate has the knowledge required to understand the process of construction adjudication.

CIArb EVENT SPOTLIGHT CIArb Workshop: Costs in Arbitration 2017 Date: 28 March Location: Hong Kong Early bird prices (until 28 February): Members £205, Non-members £245 Normal prices: Members £255, Non-members: £305 CIArb’s Costs in Arbitration Workshop will deliver practical insight into how arbitral tribunals approach the issues relating to costs in arbitration. It will address applying for third-party funding, practical solutions for costs budgeting and management, applications for security for costs, the award of costs and assessment of costs.

To find out more or book go to → www.ciarb.org/events CIArb International Conferences 2017 Date: 8-9 March Location: Royal Mirage, Dubai Date: 19-20 July Location: Johannesburg, South Africa Date: 7-8 December Location: Paris, France CIArb is launching three international conferences in 2017, examining ‘The Synergy and Divergence between Civil Law and Common Law in International Arbitration’. The conferences are set to identify issues and develop solutions and a pragmatic approach to the understanding and utilisation of both systems within arbitration. → www.ciarb.org/Dubaiconf

New for 2017 NEW

The evaluation of all CIArb Introduction Courses will be by online multiple choice assessment.

RECOMMENDED COURSE Family Arbitration (Financial Scheme) This two-day course provides an understanding of the elements of family arbitration and promotes the use of arbitration to resolve disputes on financial and property matters arising from marriage breakdown. The course will give candidates an understanding of the principles, procedure and practice involved in family arbitration.

It covers an introduction to the Arbitration Act 1996 and the Family Law Arbitration Scheme; managing a family arbitration effectively; the scheme rules; the advantages and disadvantages of family arbitration compared with other processes; the powers of the tribunal; drafting and enforcing an award; costs and interest; and remuneration of the tribunal.

Date: 4 and 5 February Fee: £1,920 For more information: call the Education & Training team on +44 (0)20 7421 7439, or email jacquijackson.ifla@mail.com.

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(I½RMRK -WWYIW MR -RXIVREXMSREP %VFMXVEXMSR 8LI ZSPYQI MW MRXIRHIH XS GSQQIQSVEXI XLI 100th anniversary of the Chartered Institute of %VFMXVEXSVW XLI ½VWX PIEVRIH WSGMIX] MR XLI [SVPH HIZSXIH XS XLI XIEGLMRK SJ EVFMXVEXMSR

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18/01/2017 09:38

Central London Arbitration Suites Available

12 Bloomsbury Square

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Room Hire CIArb’s Georgian premises are located on one of London’s oldest garden squares. Conveniently situated in central London and close to all major transport links, 12 Bloomsbury Square offers: Open evenings and weekends • VSSQW VERKMRK MR GETEGMX] ERH GSR½KYVEXMSR • Accommodation arranged at special rates in local hotels • 7IGYVI JEGMPMXMIW EZEMPEFPI JSV SZIVRMKLX WXSVEKI SJ LIEVMRK HSGYQIRXW • 8IGLRMGEP WYTTSVX • Catering services 4VMZEXI VSSQW EZEMPEFPI JSV QIHMEXMSRW •

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8S ½RH SYX QSVI SV XS FSSO GSRXEGX +MPIW %RHVI[W T: +44 (0)20 7421 7444 E: KERHVI[W$GMEVF SVK W: [[[ GMEVF SVK FPSSQWFYV]WUYEVI

12 BLOOMSBURY SQUARE 6IKMWXIVIH GLEVMX] RYQFIV Π'LEVXIVIH -RWXMXYXI SJ %VFMXVEXSVW

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