The Resolver August 2016

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

Four new Arbitration Guidelines published Key sports arbitration cases in the lead up to the Rio Olympic Games Legal round-up CIArb to launch refreshed training programmes Guide to training and courses August 2016

www.ciarb.org

Going the extra mile An insight into the career of Francis Xavier SC

p01_cover.indd 1

14/07/2016 16:00

Become a Better Mediator Now Learn how to grow your Mediation Business

Instantly access over 100 hours of Mediation Master Classes, Courses and Interviews. Brought to you by the world’s

Leading Mediators and thought leaders.

LEARN FROM HIGH CALIBRE MEDIATORS Learn from experienced practitioners and international thought leaders

EARN CPD WHILE YOU LEARN Keep your professional development up to date.

Earn CPD points each time you learn

NEW MASTER CLASSES EVERY WEEK

WATCH AND LEARN ON ANY DEVICE IN YOUR OWN TIME

New and relevant Masterclasses, Courses and Features tailored just for you

Learn at your own pace, in your own time and in your own style

Join thousands of Mediators from around the world who are using MediatorAcademy.com to improve their effectiveness, keep their skills and knowledge up to date and to grow their mediation practices.

Go to MediatorAcademy.com today and start learning from the very best.

Web: www.MediatorAcademy.com Email: aled@mediatoracademy.com Tel: +44 (0)207 127 0045

RES.01.16.002.indd 1

19/01/2016 11:09

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: Steve Smethurst 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

Sundra Rajoo

LEADER

THE PAST QUARTER HAS PRESENTED ME WITH many more opportunities to meet CIArb members at ADR forums, lectures, courses and branch events around the world. While it is always pleasing to see a familiar face, it is even more pleasing to be introduced to new members.

It shows our efforts to grow the Institute’s network are working. It also shows that the Institute is staying relevant to the needs of the industry and its practitioners.

During our Centenary celebrations last year, conversations took place that sparked innovative ideas and initiatives. They challenged and motivated us to be proactive and bold in driving new initiatives forward.

A year on, I am delighted to see so many of your projects and initiatives flourishing. They range from ADR law reforms to establishing arbitral institutions in under-served markets and setting up new ADR resource centres.

One of CIArb’s main goals is to increase the importance of ADR training and international accreditation. No other organisation in the world accredits arbitrators to the calibre we do.

Having been involved in courses myself, I have seen the work that goes on behind the scenes and would like to extend praise to the unsung heroes of this Institute.

They are the volunteer members of various committees who do sterling work with support from the Executive, based at Bloomsbury Square. Thank you for continuing to share your expertise with participants.

This level of volunteerism should be maintained within branches, exploring how best they can expand courses and training with the Executive and, at the same time, increase the Institute’s visibility.

Courses need the continued support of senior members. Encouraging involvement from newer members is also important so they will be able to carry the torch and continue the legacy of educating the next generation.

No other organisation in the world accredits arbitrators to the calibre we do

Datuk Professor Sundra Rajoo C.Arb President of CIArb

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

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

p03 contents.indd 3

4-5 News: Business as usual for CIArb post-Brexit; New Guidelines published by PSC 6 Analysis: Ahead of the Olympic Games, Murray Rosen QC takes a look at how sport 9

is an increasingly fertile breeding ground for arbitrations and disciplinary tribunals Law round-up: NYK Bulkship (Atlantic) NV v Cargill International SA [2016] UKSC 20; T v C [2016] HCCT 23/2015

REGULARS AND FEATURES 8 10 14 16 18

Opinion: The use of arbitration to deal with commercial lease renewals has been limited, despite its cost-effectiveness, say Michael Whitson and Richard Poole.

Cover: The Chairman of the Singapore Branch, Francis Xavier SC C.Arb talks about the challenges of establishing a successful arbitration and legal career CIArb & Branch news: News from around the world, including Mauritius and Australia CIArb events: The annual Roebuck Lecture; CIArb’s London and South East Young Members Group seminar What’s On: Round-up of upcoming training courses August 2016 | THERESOLVER

3

14/07/2016 16:07

WATCH

$84m

The average value (in US dollars) of new ICC disputes in 2015.

The figure rose from $63 million in 2014.

Source: ICC

Michael d’Alton was one of the last surviving Irish veterans of D-Day when he passed away in Dublin in May, at 95, and also likely the oldest living former Chairman of any CIArb branch.

Resident in Killiney, he was honoured for his Second World War service receiving a Chevalier de l’Ordre National de la Légion d’Honneur in 2015. It is France’s highest military award. The then Sub-Lieutenant d’Alton was second in command of a tank landing craft that was part of the D-Day invasion at Omaha Beach.

Michael Carrigan C.Arb, a fellow former Chair of CIArb’s Irish Branch, said: “He was a very kind, knowledgeable, honourable and modest man.”

After the war, Mr d’Alton was a noted chartered surveyor and became a partner in Patterson, Kempster and Shortall. In the early 1970s he started practising as an arbitrator and conciliator.

Mr d’Alton joined CIArb at this time, later becoming a founding member of the Irish Branch who served on its committee from 1982-1998 and was Branch Chair in 1989-1990.

During this period he also served on, what was then called, the CIArb Council in London.

Bill McLaughlin C.Arb, who sat on the Irish Branch Committee with Mr d’Alton, said: “Michael also acted very successfully on a number of occasions as an ICC arbitrator in Paris.”

Report by Arran Dowling-Hussey FCIArb. 4

SHUTTERSTOCK

Paying tribute to Michael d’Alton

Business as usual post-Brexit CIArb’s strategy remains on course and it is business as usual for members and clients, Director General Anthony Abrahams MCIArb has said following the UK’s vote in June to leave the EU. “The requirement for individuals and businesses to avoid and manage disputes does not change,” he said. “It remains at the core of everything that CIArb does.”

Abrahams added that while the Institute is proud to be based in London under its Royal Charter, it is a global organisation with 37 branches worldwide and more than 60 per cent of its membership based outside the UK. “We are here for the benefit of our members and those who require conflict avoidance and management training, as well as ADR services,” he said.

The UK voted 52 per cent to 48 per cent to leave.

An insight into dispute resolution in Poland Litigation is having an increasingly important impact on businesses in Poland, a survey has found. Yet only half of Polish businesses have a dispute resolution strategy in place to manage the rise in volume of litigation and fully exploit all dispute resolution options.

The Corporate Disputes survey commissioned by Dentons and carried out by the ICAN Institute and Harvard Business Review Polska canvassed more than 200 executives and business owners to determine current trends in arbitration and litigation in Poland.

A quarter of respondents said disputes are on the rise in their

sector, while a fifth also saw a rise in their own companies. A fifth had experienced more than 26 disputes. Disputes are much more frequent in the services industry than in the manufacturing sector.

Nearly two thirds of executives (62 per cent) are aware that success in litigation depends on building a robust case, developing litigation scenarios and analysing related risks. Despite such high awareness, 48 per cent of the surveyed companies do not have any such dispute resolution strategy in place.

The law firm says when developing a dispute resolution strategy, companies should

also consider preventative actions as well as ADR methods to avoid litigation.

“Despite more and more talk about ADR methods, we are still far behind the US market, where most cases end in settlement,” says Partner Katarzyna Bilewska, Head of Corporate Disputes at Dentons’ Warsaw office.

“On the other hand, we do see an increasingly important role of efforts to prevent litigation by analysing the market position and credit standing of business partners, by monitoring industryspecific regulations and case law, and by relying on insurance, such as in the construction industry.”

THERESOLVER | August 2016

p04_watch.indd 4

14/07/2016 16:08

CIArb headquarters was packed for the talk by renowned arbitrator Professor Doug Jones AO C.Arb →The Annual Roebuck Lecture, page 16

Four new Guidelines published by PSC Each one has been peer-reviewed by prominent practitioners and academics Four new Guidelines for arbitrators were published by CIArb’s Practice and Standards Committee (PSC) in June.

It followed months of exacting work researching, drafting, peer reviewing, consulting and finalising. It brings the number of new Guidelines published in the past 10 months to seven.

The latest new topics include guidance on awards in three parts, covering drafting, costs and interest, as well as a Guideline on party non-participation. These can all be found on the Institute’s website at www.ciarb.org together with all the earlier Guidelines, which include guidance on jurisdictional challenges, applications for interim measures and applications for security for costs.

To ensure that views from around the globe have been taken into account each Guideline has been peerreviewed by prominent

PSC Chair Tim Hardy FCIArb

practitioners and academics from different jurisdictions and representing diverse legal traditions and cultures.

While the Guidelines are designed for international commercial arbitrations and are not based on the laws of any particular jurisdictions and/or

arbitration rules, the recommended good practice principles and standards are equally applicable in domestic arbitrations.

Additionally, even though they are all written from the perspective of the issues arbitrators must grapple with, they are a very useful starting point for any practitioner sitting down to draft submissions and/or preparing for advocacy at a hearing.

Tim Hardy FCIArb, Chair of the PSC said: “We are very proud of our work. It has been exacting but, in the end, very rewarding to produce something that has been so well received. In the past six months we have received messages from arbitrators, counsel, trainers and students from all over the world complimenting us on the Guidelines and telling us how useful they found them in practice, which is exactly what

they were intended for.”

One was received from Professor Dr Mohamed S Abdel Wahab FCIArb, Founding Partner and Head of International Arbitration at Zulficar & Partners, and member of the PSC practising in Egypt and the MENA region generally, who stated: “The new Guidelines tackle hot and controversial issues and appear to be very well received.

As an arbitrator, I am increasingly witnessing parties from the MENA region making references to them in their submissions and applications.”

Hardy also said the Guidelines are not written in stone.

“They are intended to be living, breathing documents that will be updated and improved regularly so anyone with comments or suggestions is invited to send them to the PSC’s dedicated email address, psc@ciarb.org, and they will be sure to be considered,” he said.

Hong Kong celebrates Mediation Week

GETTY

Hong Kong celebrated its Mediation Week 2016 in May. It was organised by the Department of Justice to further promote the development of mediation in Hong Kong and the use of mediation services in various sectors including education, medical, commercial, community and intellectual property.

Under the theme ‘Mediate First – Advance with the Times’ events included a conference, seminars and a carnival that featured game booths and free mediation consultation services.

August 2016 | THERESOLVER

p05_watch.indd Sec1:5

5

14/07/2016 17:06

ANALYSIS ARBITRATION IN SPORT

Sport fails to play by the rules

I Murray Rosen QC FCIArb practises at 4 New Square and has acted as a sports tribunal chairman for more than 20 years. He is a panel member of Sport Resolutions UK and the Court of Arbitration for Sport, as well as the Football Disciplinary Commission.

6

n the classic 1947 Bob Hope/Bing Crosby film comedy Road to Rio, the female lead, Lucia (Dorothy Lamour) is constantly being hypnotised into doing dastardly deeds by her crooked guardian (Gale Sondergaard). As we head off again to Rio for the Olympic Games this summer, how many athletes will be competing under the evil influence of doping programmes, betting rings and other corruption?

The Russian athletics team has already been barred from the competition following the International Association of Athletics Federations (IAAF) Taskforce interim report of 17 June, which found a deepseated tolerance, and even official encouragement, for endemic doping practices and cover-ups.

This is what sports discipline and the World Anti-Doping Agency (WADA) now has to contend with. And while tennis star Maria Sharapova’s appeal to the Court of Arbitration for Sport (CAS) as regards her long-term ‘medical’ regime was still pending as The Resolver went to press, her case shows, at least, that even the most successful sports people do not pay sufficient regard to the rules.

The processes involved in these cases, and indeed other disputes concerning sports participants such as eligibility, have to be very robust indeed.

On the face of it, the ad hoc division of CAS, which is based in Lausanne, Switzerland, did an

excellent job at the London 2012 Olympic Games.Two examples – both involving overnight hearings and counsel from my chambers, 4 New Square – illustrate the process.

In one case, the Irish boxer Joseph Ward failed in his attempt (CAS OG 12/02, 26 July 2012) to have the relevant IOC and International Boxing Association AIBA rules so interpreted as to qualify him as the next ranked athlete to fill a vacant slot for the London Games.

In the other, the Czech canoeist Jan Sterba succeeded (CAS OG 12/07, 6 August 2012) in challenging the International Canoe Federation (ICF) finding that a non-prohibited supplement found in his testing required punishment because it had acted as a stimulant.

It is often suggested that the processes of disciplinary tribunals, regulatory and almost quasi-criminal, should be very different to adversarial, civilstyle arbitrations, but in the sporting arena there is often a large degree of overlap both among those who practise and sit, and indeed the issues.

Both procedures are based on contract, whether between the particular parties

or contained in the regulations of the sports bodies to which they adhere.

In the case of Emmanuel Eboué v FIFA (CAS 2014/A/3803) the exArsenal footballer had been ordered by FIFA’s Players’ Status Committee (PSC) to pay his former agent 10 per cent of the salary he was to receive after moving to Turkish football club, Galatasaray SK. When he did not pay he was subjected to FIFA’s disciplinary process and unsuccessfully tried to revive his arguments against the agent’s contractual entitlement in order to avoid a future ban. He had not appealed to CAS on the PSC’s decision within the prescribed 21 days.

Sport is fertile ground for both contractual and regulatory disputes and it should never

SHUTTERSTOCK

In this Olympic year Murray Rosen QC takes a look at how sport is an increasingly fertile breeding ground for arbitrations and disciplinary tribunals

THERESOLVER | August 2016

p06-07_newsanalysis.indd 6

14/07/2016 16:19

be assumed that its practitioners cannot join up the two.

Nonetheless it is important to bear in mind some fundamental differences between arbitration and other juridical bases for internal discipline. Where English law and in particular the Arbitration Act 1996 is applicable, there are specific, limited rights of appeal, compared with recourse to national courts to challenge disciplinary decisions on judicial review grounds – lack of jurisdiction, irrationality and natural justice.

These were highlighted by the (English) Commercial Court recently in the case of Kaneria v England and Wales Cricket Board Ltd [2014] EWHC 1348 when the ECB brought disciplinary proceedings against Pakistani spin bowler Danish Kaneria for allegedly bribing a young Essex teammate, Mervyn Westfield, to underperform in a match against Durham to assist ‘spot-fixing’.

Challenging a witness summons against Westfield (who had pleaded guilty) on the grounds that the appeal panel was not subject to the Arbitration Act, Kaneria argued that the rules referred to ‘prosecution’ and did not mention ‘arbitration’. He also claimed that the procedure failed the relevant test for arbitration, that is, a process which in substance mirrored the role of a civil court, determining legal rights and obligations judicially

and with binding effect.

This argument was rejected

by Hamblen J – the appeal panel was independent, allowed the parties to adduce their cases and evidence, and reached a binding determination of legal rights and obligations.

The same reasoning led the Chancery Division, in Baker v British Boxing Board of Control [2015] EWHC 2469 to find that the BBBC’s appeal procedure before the appeal stewards was categorised as an arbitration. This meant the court had no jurisdiction to quash the suspension of his licence for misconduct by boxing at an event that was not properly organised.

Some similar issues arose at international, CAS level, in the case between Claudia Pechstein and the International Skating Union (ISU). The German speed skater initially succeeded in founding jurisdiction for German proceedings challenging the ISU/ CAS finding of doping violations, which had been upheld by the Swiss Federal Tribunal. The recent decision of the German Federal Tribunal (GFT), announced on 7 June, allowing the ISU’s appeal is in one sense the most important decision in the lead up to the Rio Olympics, because it confirmed the binding effect of CAS decisions.

The case has been widely publicised and commented

upon. For more than a year there was some panic at the thought that, after 30 years and now running at some 500 cases a year, CAS and international sports dispute resolution might need to start again.

But, in a nutshell, the GFT held that (a) any possible imbalance by a predominance of federations in CAS’ appointments is balanced by CAS procedural rules, the independence of its arbitrators, and the possibility of an appeal against a CAS decision to the Swiss Federal Tribunal; (b) the interests of sports federations and athletes are aligned when the question at stake is the fight against doping;

and (c) the advantages of a single international sports jurisdiction, standard and procedure, benefit not only sports federations but also athletes.

So CAS is still there, its work vindicated and expanding, and it will be working hard at Rio, as it did at London.

This summary barely scratches the surface of the work now carried out by sports arbitrators and disciplinary tribunals.

Corruption scandals such as the one that has hit FIFA have gripped the world’s press and rightly so.

There are commendable sources for following the legal issues, especially LawInSport and the British Association for Sport and Law, which have recently produced an excellent joint Sports Law Yearbook 2015-2016.

No-one can doubt that, in the light of the issues now bubbling up to (or on) the surface, Rio will be adding another major chapter for the next year.

To return to our starting point, Bob Hope once famously said that Watergate was enough to give dirty politics a bad name.

The past year, with FIFA and the Olympics movement reeling

from scandal after scandal, has almost done the same to international sport. But we look forward in the hope that, with robust dispute resolution processes upheld and in place, Rio will be eventful only in the best sporting senses – and mark a better road onwards.

August 2016 | THERESOLVER

p06-07_newsanalysis.indd 7

7

14/07/2016 16:20

OPINION PROFESSIONAL ARBITRATION ON COURT TERMS (PACT)

Michael

Whitson Take-up of an arbitration scheme to deal with commercial lease renewals has been limited despite it being more costeffective than court.

How can its use be bolstered?

Michael Whitson FCIArb FRICS, Principal at Michael Whitson and Co, commercial real estate consultants, can be contacted at mike@ michaelwhitson.co.uk Richard Poole FRICS, Principal at Poole and Co, chartered retail surveyors, independent experts and arbitrators.

8

Richard

Poole

THE LANDLORD AND TENANT The Law Society, and Act 1954 (LTA 1954) allows the introduced in 1997. With the disputed terms of a commercial consent of both parties, some or lease renewal to be determined all of the terms can be devolved by the courts. This is unlike a to a third party, either a rent review, which is surveyor or lawyer, or both. automatically dealt with by ADR PACT has been established for and is normally a documentsalmost 20 years, but its take-up only procedure. has been paltry, despite the cost Again, and unlike a rent of a documents-only arbitration review, there is confusion being less than half the cost of over the valuation date. court on average.

Unless agreed to the contrary, Perhaps this is an opportunity the valuation for CIArb to date is the promote PACT. How can the commencement Lord use of PACT be date of the new Neuberger wrote improved? The lease. However, the foreword in LTA 1954 has been 2009 for the in the event of amended by the proceedings, RICS fi rstLaw of Property the date is three edition guidance Act 1969 and by the note on the months after Regulatory Reform matter. In it, fi nal disposal (Business of the court he states: Tenancies) application “PACT deserves section 64. to become (England and In other words, Wales) Order 2003 better known surveyors are among being asked to practitioners value at a future but as yet and more widely considered unknown date. in the courts as a method of The main terms of a lease: alternative dispute resolution.” rent, length of term, rent review The ‘market’ has driven the pattern and repairing reduction in length of leases obligations are determined by from a standard 20- or 25-year the ‘market’. The problem is term, to an average of around that a judge is not immersed in seven years. Standard unit the ‘market’ and may not shops are, more often than not, understand its nuances or its let for a term of 10 years with a turning points. tenant’s option to break after As an alternative option to the fi fth year. court, Professional Arbitration Clearly, this has led to a on Court Terms (PACT) was reduction in the number of rent devised by the Royal Institution reviews but also to a simultaneous of Chartered Surveyors and increase in lease renewals.

So why is it that even following Lord Justice Jackson’s civil litigation reforms, PACT is not more widely adopted?

Currently, PACT can be used when the tenant wishes to take up a new tenancy and the landlord does not oppose under any of the grounds specified under section 30 of the LTA 1954. Both parties must consent to PACT and the method can be adopted either before or after an originating application is made to the court.

The crux of the matter is that both parties must consent; it is not by default as with a rent review, which is stipulated in the lease.

So how can the use of PACT be improved? The LTA 1954 has been amended by the Law of Property Act 1969 and by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003.

We propose that further amendment is required by stipulating the valuation date for the new lease, as being the contractual date for expiry of the old lease or the date extended by either a notice served by the landlord or tenant. In addition, the right of either party to refer to PACT should be no more than one month before the expiry date or at any time thereafter.

We would be very interested to hear from CIArb members whether they consider our proposed amendments a practical proposition.

THERESOLVER | August 2016

p08_Opinion.indd Sec1:8

14/07/2016 16:10

LAW

An overview of recent key court cases

ROUND-UP THE SUPREME COURT RULES ON A SECTION 69 CHALLENGE TO AN ARBITRAL AWARD

THE CASE ○ ARBITRATION

NYK Bulkship (Atlantic) NV v Cargill International SA [2016] UKSC 20

THIS RULING RELATED TO THE INTERPRETATION OF AN off-hire clause in a time charterparty dated 11 December, 2008. NYK chartered the vessel, Global Santosh, to Cargill for a time charter trip to carry a cargo of cement from Sweden to Nigeria.

The charterparty contained an off-hire clause setting out that payment for the hire of the vessel would be suspended should the ship be captured, seized, detained or arrested. Should these circumstances have arisen because of any personal act or omission or default of Cargill or its agents, NYK would be reimbursed for any expenses incurred.

The ship was mistakenly arrested as a result of a dispute between the buyer and seller of the cement and costs were incurred. The issue before the courts was whether the buyer and/or seller were agents of Cargill and, if they were, was the vessel off-hire during its arrest?

The arbitrators held, by a majority, that the arrest could not be regarded as having been occasioned by the time charterer’s agents in the sense in which that word was used in the charterparty. This award was appealed by NYK under Section 69 of the Arbitration Act 1996 on point of law.

At first instance, it was held that Cargill was responsible for the cement buyer’s action and was therefore liable for subsequent losses.

At the Court of Appeal, Gross LJ came to the same conclusion, but on different grounds. At every level of appeal, it was intended that the

award be remitted back to the tribunal having only clarified the point of law.

Permission to appeal to the Supreme Court on the question of construction of the term “agent” was granted on the basis that this was an arguable point of law of general public importance. ○ THE JUDGMENT

By a majority ruling, the Supreme Court set aside the decisions of the lower courts and dismissed NYK’s appeal under Section 69 as the actions of the buyer were not relating to a right or obligation of Cargill.

The Supreme Court upheld the original decision of the arbitrators.

○ WHAT IT MEANS

In the context of arbitration, this case is a rare example of proceedings brought under Section 69 reaching the Supreme Court. At every level, the courts only considered the point of law and respected the parties’ choice to arbitrate by remitting the arbitral award back to the tribunal.

The full judgment is available at:

→ https://www.supremecourt.uk/cases/ docs/uksc-2014-0143-judgment.pdf

This is a rare example of proceedings brought under Section 69 reaching the Supreme Court

HONG KONG COURT REJECTS ALLEGATION OF FRAUD AS BASIS FOR SETTING ASIDE AN ARBITRAL AWARD

THE CASE

T v C [2016] HCCT 23/2015

○ ARBITRATION

C MADE AN APPLICATION TO SET ASIDE AN ORDER MADE by the court that granted T leave to enforce an arbitral award made in Malaysia. Under the award, C was made to pay T in excess of US$5 million as damages for breach of a contract for the supply of coal.

C alleged that there was no binding contract between the parties, that there had been fraud and forgery of documents, that the tribunal did not have competence to rule on a matter that is not capable of settlement by arbitration, and that it would be contrary to public policy to enforce the award. C asserted that signatures appearing in relevant documentation were forged. It was T’s position that apart from making bare assertions on affidavit, C had not adduced any expert evidence to support its claim.

Significantly, similar allegations had been made by C in proceedings in Malaysia that had failed. ○ THE JUDGMENT

Chan J rejected the application to set aside the order and found that C’s case failed to satisfy the threshold required, namely a real prospect of success in persuading a judge to find that the award had been obtained by fraud.

This is a high standard, which is not surprising, bearing in mind the serious nature of an allegation of fraud, the binding nature of an arbitral award and the principle of speedy finality that underpins the Arbitration Ordinance (Cap 341) that applied to the application.

Chan J also commented that it was incumbent on the applicant to

make full and adequate disclosure of the facts and matters it relied upon to substantiate an allegation of fraud as opposed to simply making bare assumptions.

In her view, C had failed to adduce any or sufficient evidence to show a case of fraud.

As C was unsuccessful in its application, the judge ordered C to pay T’s costs on an indemnity basis.

refuse enforcement on public policy grounds, the award must be so fundamentally offensive to that jurisdiction’s notions of justice that, despite it being a party to the Convention, it cannot reasonably be expected to overlook the objection.

C’s application failed to reach this threshold.

The full judgment is available at:

→ http://legalref.judiciary.gov.hk/lrs/ common/search/search_result_detail_ frame.jsp?DIS=103406&QS=%2B&TP=JU

○ WHAT IT MEANS

The Court of First Instance followed the established practice in applying a very high threshold to challenges on public policy grounds. This decision follows the principle that contrary to public policy means contrary to the fundamental conceptions of morality and justice of the forum.

Furthermore, before a Convention jurisdiction can

Both reports by Tom Cadman, Director of Governance and Legal Services at CIArb.

The Court of First Instance applied a very high threshold to challenges on public policy grounds August 2016 | THERESOLVER

p09_Law.indd 9

9

14/07/2016 16:10

INTERVIEW FRANCIS XAVIER

Going the extra mile What does your current role entail?

I oversee the dispute practices across Rajah & Tann’s 11 offices in nine South East Asian countries, including in Malaysia, Vietnam and Indonesia. My work is fairly divided between international arbitration and court litigation in the Singapore Supreme Court (including the recently opened Singapore International Commercial Court).

Why were you attracted to international arbitration as a career?

Interview: Rima Evans Photography: Danny Santos 10

I started practising in 1989. Back then, Singaporean legal firms were fairly inwardlooking and mostly concerned with local affairs and issues.

Practice in the Supreme Court at that time was challenging. The courts had a serious backlog placing pressure on the system and there was a top-down approach.

Arbitration was a rarity then. It was during the early 1990s that it became clear that arbitration was the next big chapter in dispute resolution. Asia took off economically and started to have global significance. We are still seeing the region develop with economies such as the Philippines currently powering up.

A big chunk of global business and commerce flowed into Asia. Singapore, in particular, enjoyed rapid business growth and globalisation. As a result, the country opened up its legal market quite aggressively and Singaporean firms found they had to internationalise to compete.

A number of firms started to expand and to focus on arbitration and ours was the first in Singapore to be listed in the GAR 30 (a ranking of the world’s busiest international arbitration practices). We remain one of the few Asian firms on the list.

International arbitration grew in popularity because it was, and is, more flexible and it was a much more pleasant experience for both practitioners and clients than court, given the challenges it was then facing.

Francis Xavier, Chartered Arbitrator and Senior Counsel at the Supreme Court of Singapore, was elected Chairman of the Singapore Branch last year. He talks to Rima Evans about the challenges of establishing a successful arbitration and legal career – and the importance of maintaining a work-life balance

THERESOLVER | August 2016

p10_13 cover feature.indd 10

14/07/2016 16:12

p10_13 cover feature.indd 11

14/07/2016 16:12

INTERVIEW FRANCIS XAVIER We could see arbitration was the future. Enforceability offered a big advantage, especially as we moved from domestic to cross-border cases. The legal landscape in Singapore is now completely transformed. Arbitration now has to remake itself, though, in the face of new challenges such as the advent of the international commercial courts.

What challenges and opportunities have you experienced in your career?

I was born in Malaysia and my parents were fairly poor. I was very lucky to be awarded a scholarship to study in Singapore in 1981, where I went on to achieve my law degree.

The country has been very kind to me.

I have been fortunate to have had some very good mentors. My training path fell under the spell of some great legal minds. My pupil master was Michael Hwang SC FCIArb, who is currently the Chief Justice of the Dubai International Financial Centre (DIFC) Courts.

During my practice as a young lawyer I trained closely under the current Singapore Minister for Law K Shanmugam SC. I also worked under the current Chief Justice of Singapore [and also CIArb Patron] Sundaresh Menon. And I had the privilege of working with the current Attorney-General of Singapore VK Rajah SC and the former Attorney-General, Steven Chong SC. The latter three were former Managing Partners at Rajah & Tann.

It is vital that young lawyers have access to good mentors who are strong role models and can guide and exemplify fundamental ethical and legal skills. You learn a great deal from working on real cases with lawyers who epitomise the best of the profession.

One of the challenges in the legal profession is the self-limiting belief that to get ahead you have to devote yourself to work and sacrifice your work-life balance. You are expected to burn the candle at both ends if you want to climb the career ladder. I don’t believe that is necessary and fortunately my mentors didn’t subscribe to that view either. Life is for living.

It can be difficult to keep that in mind considering what is expected of lawyers on a daily basis from clients and practices. The breadth of knowledge we require is farreaching. One day we could be handling a ship-collision case, the next day a case of a collapsed building or an issue with a coal mine.

We are constantly having to enter new worlds and gain more knowledge about them than those working within a specific field. We have to familiarise ourselves with the historical 12

background of an industry and its context, and also the technical jargon. On top of that, of course, we deal with legal analysis.

So the challenge of keeping on top of your workload and being, for example, a good friend, son or daughter, parent or partner is tricky. But we need to be able to look back on our lives and be proud of what we achieved for ourselves, not just for work.

Ultimately, law is a creative endeavour. Being overworked or feeling trapped because you haven’t seen your family or spent time with friends is not going to enhance that creativity.

You simply cannot be at your best when you are running on empty.

I always think that rather than focus on what we are doing, we should also focus more on how we are doing it. That way, we can pave a path towards a better work-life balance.

Have you experienced a career defining moment?

I have had two. When I was growing up, the Indian community in Malaysia didn’t think highly of lawyers. As a result, I always wanted to be a doctor. I did my A-levels in Singapore and five weeks before my first exam I cracked my lumbar vertebrae during a football game and came close to becoming quadriplegic.

I ended up in hospital strapped to a bed and couldn’t move for an entire month. It was in hospital that I realised that I didn’t want to be a doctor. I had lots of conversations with the doctors, nurses and patients and came to the conclusion that I lacked the degree of self-sacrifice that the role requires.

The intellectual demands for medicine and law are quite different and I was attracted

more to the demands that law requires, especially verbal skills.

I made a momentous decision that changed the course of my career. Looking back, I can now see that injuring my spinal cord was actually a blessing.

And what about the other?

It was 2008 and I was Head of the Commercial Litigation department at Rajah & Tann.

The Managing Partner at the time was Steven Chong SC, who is now a Judge in the Supreme Court.

I was heading a large department and had considerable responsibilities. I had also developed a passion for mountain climbing and got it into my head to climb the world’s sixth-highest mountain, Cho Oyu. It stands at 8,201 metres above sea level. The climb takes around two and half months, even longer if the weather is against you. On top of that, the Himalayas is not a BlackBerry-friendly place!

So here was my dilemma: how do I manage a busy practice but be absent from it for that period with little means of staying in touch?

I felt it was my last chance to fulfil this ambition since I wasn’t getting any younger.

It was then or never.

I had a life-defining conversation with Steven Chong. He was really taken aback at first and asked me why I would want to do such a risky thing and whether I was sure about it.

I was asking a lot from him to grant me permission but I said I wouldn’t go without it.

He listened carefully and began to understand how much it meant to me, it was a life aspiration. It would have been perfectly reasonable for Steven to say no but,

THERESOLVER | August 2016

p10_13 cover feature.indd 12

14/07/2016 16:12

Potted CV: Francis Xavier SC C.Arb PBM Education LLB (Hons), National University of Singapore

Previous employment Partner, Allen & Gledhill LLP

Current employment Regional Head, Dispute Resolution, Rajah & Tann LLP Senior Counsel, Supreme Court of Singapore Solicitor, Supreme Court of England and Wales Chartered Arbitrator, CIArb Fellow, Singapore Institute of Arbitrators Fellow, The Malaysian Institute of Arbitrators Panel of Arbitrators, Singapore International Arbitration Centre Panel of Arbitrators, Kuala Lumpur Regional Centre for Arbitration, Malaysia

Recognised as a leading lawyer in The Legal 500 Asia Pacific (2001 to 2016) Chambers Asia-Pacific (2011 to 2016) Chambers Global (2010 to 2015) Who’s Who Legal (2013 and 2016) miraculously, he said yes. I went and climbed that mountain. I didn’t reach the summit, I was only about half a day away from the top when I got stuck in a blizzard for three days. But it didn’t matter to me, my dream was realised.

When I returned to civilisation and switched on my BlackBerry I had something like 9,000 emails pour in! But the trip unleashed a new energy in me. When I went back to work I was able to give it my all because there was no feeling that I should be doing something else or be somewhere else. My commitment to the firm became deeper knowing that it was there for me.

What advice do you have to others trying to get a foothold in the arbitration/ADR profession?

In Singapore I hear young arbitration practitioners and litigators say that it’s far harder to be successful now and advance your career compared with 20 or 30 years ago, particularly since the profession is more crowded. There may be some truth in that but I think every generation has its own obstacles and challenges. I don’t believe any generation has it any easier than any other.

There is always room at the top. And today the legal market is not confined to Singapore, it goes beyond that. Borders have disappeared so there are fewer limits. For an enterprising arbitration practitioner trying to make his or her mark on the legal landscape in Asia, or wherever, there is plenty of opportunity.

What is the best piece of advice you have been given?

As a young lawyer, I was advised to go the extra mile or two in whatever task I was doing.

What was your toughest dispute? What lessons did you learn from it?

It’s hard to single out just one dispute. I have a number of cases that have been among the toughest. The common denominator was that they required me to dig deep and pull something out of myself I didn’t think I had in me, to overcome the challenges they posed.

There were many challenges, ranging from dealing with difficult opponents, short timescales, difficult client challenges or trying to simplify complex legal issues. Each of those challenges called for me to be resourceful and find strength from within. Mentally, you can believe you can’t overcome a problem but what is needed then is a change in your perspective and thinking: be malleable, keep an open mind so you can approach challenges without first forming the conclusion it’s going to be impossible. Commit to doing your best and take one bite of the apple at a time.

What do you identify as the main benefits of being a CIArb member?

I have been a member for more than a dozen years. The Institute represents a fantastic opportunity, especially for young professionals around the world, to gain access to knowledge and expertise.

CIArb courses are run by dedicated industry experts who take time from their busy schedules to share their experience and knowledge. It offers unprecedented access to learning and mentorship.

CIArb accreditation is also recognised all over the world. I travel a lot and wherever I go

if I mention I’m a Chartered Arbitrator, that is taken very seriously.

Training is also continually being taken to new and diverse parts of the world. The Singapore Branch (working with the East Asia Branch and CIArb Asia Pacific Regional Office) is taking training initiatives to the Maldives, Vietnam, Cambodia, Bangladesh and beyond.

What are the biggest issues facing the ADR profession right now?

Arbitration rose in prominence quickly, especially in Asia, because in comparison with court, it was regarded as a process that was cheaper, faster, more flexible and offered enforceability. However, current experience now tells us it doesn’t always deliver these benefits and it is increasingly now being viewed as time-consuming and expensive. As a community we cannot allow this to continue; arbitrators and counsel on the ground have to work strategically to ensure that arbitration does deliver. The reality of arbitration has to come close to its ideal.

Arbitrator quality and performance has been identified as a key challenge. It’s important that the ADR community takes this seriously and arbitrators stay on their toes and utilise innovative techniques to speed up the arbitral process, and use its flexibility to the best possible advantage for the parties. We are seeing the rise of the international commercial courts (London, Qatar, Dubai, Singapore and possibly Australia) and this may pose a key threat to arbitration in the coming decades.

THERESOLVER

August 2016 | THERESOLVER

p10_13 cover feature.indd 13

13

14/07/2016 17:07

CIArb NEWS MEMBER UPDATE

New pathway programmes set for 2017 Changes to global standard for ADR training are part of Golden Thread project CIArb’s pathway programmes are recognised as the gold standard for ADR training and the International Arbitrator Pathway remains the only globally recognised qualification for arbitrators. To ensure that the qualifications are up to date and lead current ADR practice, new programmes will be launched in 2017.

Changes across all arbitration, mediation and adjudication courses will be rolled out over a two-year period across CIArb’s eight regions, starting with the UK and Europe.

The launch forms a central part of the Golden Thread project, started three years ago, which is aimed at improving global consistency of training courses delivered by CIArb, enhancing its learned society role and helping to better facilitate ADR. The changes bring in three areas on the training side: • A revised global syllabus and materials for each module on the pathways for arbitration, mediation and adjudication to ensure syllabuses are

Pledge on parity CIArb has signed up to an initiative aimed at increasing the number of female arbitrators in the international arbitration community.

The Institute became a signatory to the Equal Representation in Arbitration Pledge following a joint event with ArbitralWomen, which was held in March.

The Pledge has two main objectives: to improve the profile and representation of women in arbitration; and to appoint women as arbitrators on an equal opportunity basis.

The Pledge is a collaborative 14

The improvements are in line with CIArb’s core values

standardised and have the same learning outcomes everywhere.

• Centralised assessment to ensure transparency, consistency and fairness during the assessment process with regard to setting, marking, moderating and delivery. A bank of assignment and examination papers will also be created.

• Improved training for tutors so all have a globally standardised

set of knowledge and skills.

Minimum standards of quality for the delivery of training will also be defined.

In addition, the mediation pathway is being brought closer in line with the arbitration and adjudication pathways where candidates learn the practical elements and law up to Member level, then progress on to theory to reach Fellow level.

effort between corporate entities, states, arbitral institutions, arbitration practitioners and academics in addressing the issue of gender diversity.

CIArb Director General Anthony Abrahams MCIArb felt the commitment demonstrated the Institute’s push for change.

“It is of paramount importance that we promote parity within the arbitration community,” he said.

able to apply to be on the Register. Other benefits include being able to apply for Paralegal Practising Certificates, free legal updates via email, free webinars; and discounts on PPR events.

Paralegal status CIArb is now a recognised body under the Professional Paralegal Register (PPR).

CIArb’s new status is set to benefit its members who will be

→ www.ppr.org.uk/

Centenary book A book of essays that celebrates CIArb’s 100th anniversary has been published.

Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators features insight from world-renowned international arbitration specialists, practitioners and academics.

Paulette Morris MCIArb, Mediation Programme Leader at CIArb, said: “All pathways should provide skills, knowledge and understanding consistent with becoming a competent practitioner.”

The changes reflect feedback given from branches and trainers delivering the existing courses with input from course delegates and practitioners.

An Oversight Committee has been appointed to review and implement the updates giving added objectivity to the project.

Director General Anthony Abrahams MCIArb said: “The improvements to the training pathways are vital in order to stay true to CIArb’s vision and strategy.

They are in line with our core values that encompass the need for continuous improvement.

“We always seek to measure, monitor, analyse and improve productivity, processes, tasks and ourselves in order to achieve consistent and high quality standards across the globe and to maintain the well reputed CIArb brand.”

The book provides expert guidance on recent developments and current issues in international arbitration, with reference to more than 300 arbitration-related cases.

Alexis Mourre, President of the ICC International Court of Arbitration, said the book is “a tribute to the great contribution that CIArb has made to the progress and development of international dispute resolution in a time of renewed challenges.”

Members are entitled to a 20 per cent discount on the book, which is published by Oxford University Press.

→ www.ciarb.org/defining

THERESOLVER | August 2016

p14-15_Branch news.indd 14

14/07/2016 16:14

CIArb NEWS BRANCH ROUND-UP MAURITIUS

MOU paves way for future collaboration A Memorandum of Understanding (MOU) was signed on 12 May between the CIArb Executive in London and the Mauritius Branch to cement a closer relationship between the two.

CIArb Director General Anthony Abrahams MCIArb signed on behalf of the Institute and Anand Juddoo, Branch

EAST ASIA

Tokyo speech President Datuk Professor Sundra Rajoo delivered a speech to the Japan Chapter of the East Asia Branch on 27 May entitled ‘Japan’s new arbitration regime and the role of CIArb’. The event was held at the Tokyo Club, Tokyo.

LONDON

AGM and keynote The London Branch held its AGM and Keynote Address at the Oxford and Cambridge Club on 28 April.

Irvinder Bakshi C.Arb, Branch Chair, introduced The Hon Sir Bernard Eder QC ACIArb of Essex Court Chambers who addressed the topic, ‘Does arbitration stifle development of the law? Should section 69 be revitalised?’ It was followed by the AGM. The branch held its first arbitration workshop of the year on the topic of ‘Effective Management of Arbitrations Without Fear of Challenge’ on 19 May. The workshop, hosted by CIArb and moderated by Irvinder Bakshi, was led by David Brynmor Thomas MCIArb and Marion Smith QC FCIArb, both of 39 Essex Chambers.

The London Branch welcomed President Datuk Professor Sundra Rajoo, colleagues from the India

Signatories: Anthony Abrahams and Anand Juddoo

Branch and other attendees to its successful and well-attended seminar addressing ‘What do Insurers need out of ADR?’ on 7 June, generously hosted by Reynolds Porter Chamberlain LLP. The event concluded with a reception kindly hosted by RPC. NORTH WEST, UK

New chairman The North West Branch held its AGM on 10 March at the Daresbury Park Hotel and Spa, near Warrington, Cheshire.

Michael Pye C.Arb formally handed over the chain of office for the chairmanship to Michael Hawkyard FCIArb FRICS FCIOB who has been Hon Sec of the branch for the past four years.

At a dinner which followed the AGM guest speaker was barrister Tony Bingham C.Arb. The branch is also pleased to note that Michael Pye has put himself forward for CIArb Presidency this year.

AUSTRALIA

FCA seminars The past few months have been eventful. CIArb Australia Vice President and Education Committee Chair Caroline Kenny QC FCIArb secured a partnership with the Federal Court of Australia to conduct arbitration seminars across Australia via the court’s network. The series was

Chair, signed on behalf of the Mauritius Branch.

It means Mauritius will work together with CIArb’s Dispute Appointment Service to set up a Panel of Adjudicators that will be used for selection of an adjudicator for construction industry disputes, in view of a forthcoming Construction Contract Act setting down

statutory adjudication in Mauritius.

The signing ceremony was witnessed by CIArb President Datuk Professor Sundra Rajoo C.Arb and Immediate Past President Charles Brown C.Arb. Also in May, an Introduction to Adjudication course was held at the Voilà Hotel in Bagatelle, Port Louis.

launched on 22 March in Melbourne where a panel addressed the topic, ‘The Role of the Courts in International Arbitration’.

In April, the Australia Branch entered into a joint venture with the East Asia and Singapore Branches to conduct the CIArb Asia Pacific Diploma in International Commercial Arbitration course in the region.

It has been agreed it will be held in Singapore from 20–28 August 2016, then Hong Kong in 2017 and Australia in 2018.

Registrations are open at: → www.

Gary Born. Opposing the motion was Toby Landau C.Arb QC and Lucy Reed. The event attracted more than 200 delegates and was followed by a drinks reception.

The debate was overwhelmingly won by those opposing the motion.

ciarb.net.au/training/diploma2016/ On 20 May, the branch held its second Introduction to International Arbitration Course.

The Hon Chief Justice of Western Australia Wayne Stewart Martin AC delivered a post-address. Also in May, Gianna Totaro was appointed inaugural CEO. SINGAPORE

SIAC debate As part of Singapore Arbitration Week, on 26 May the Singapore Branch jointly organised a debate with the Singapore International Arbitration Centre, held at Raffles Hotel Singapore. The motion was ‘This house proposes that an arbitral award that has been set aside at the seat may, and often should, be enforced abroad’.

Proposing the motion was Professor Bernard Hanotiau and

EUROPE

Practice seminar The Europe Branch held its popular practice seminar on cross-examination techniques in international commercial arbitration in Rome on 4 April, having previously held it in Paris and Geneva. An international audience attended the event, hosted at the offices of Gianni, Origoni, Grippo, Cappelli and Partners.

Two arbitral tribunals heard the cross-examination of Dr Meloria Meschi of FTI Consulting by four teams of counsel in a mock case. The proceedings were introduced by Niccolò Landi of Gianni, Origoni, Grippo, Cappelli and Partners, Andrew Paton FCIArb and Laurence Burger FCIArb, Branch Chair.

This was followed by introductory talks from Andrew Burr ACIArb, Adjudicator, Arbitrator and Barrister of ArbDB Chambers and Meloria Meschi.

• For longer versions of branch news, please visit

→ www.ciarb.org/branchnews August 2016 | THERESOLVER

p14-15_Branch news.indd 15

15

14/07/2016 16:15

CIArb EVENTS THE ROEBUCK LECTURE The annual Roebuck Lecture, held on 9 June at CIArb’s headquarters in London, saw leading international arbitrator Professor Doug Jones AO C.Arb rb provide insight on the topic: ‘Using Costs Orders to Control the Expense off International Commercial Arbitration.’.’

Prof Jones has also recently b, been appointed a Companion of CIArb, one of only four. There can be no more e than 10 at any one time, unless agreed by the members at an AGM. • You can read the full speech at → www.ciarb.org/roebucklecture

Tim McQue FCIArb and James Clanchy FCIArb

Sholape Abidakun ACIArb and nd Ekundayo Akande ACIArb rb

Delegates enjoyed a lively discussion

Prof Doug Jones Pr P

Datuk Prof Sundra Rajoo C.Arb, Neil Menzies, Olivia Morrison-Lyons, Anthony Abrahams MCIArb and Tony Canham FCIArb

Right: Sergejs Dilevka MCIArb

The Rt Hon The Lord Hacking C.Arb

CIArb BOOK LAUNCH In celebration of CIArb’s latest publication: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators, CMS Cameron McKenna LLP generously hosted a book launch on 7 July, which attracted international arbitration specialists, academics and practitioners.

16

Facing the audience are The Rt Hon Professor Sir Bernard Rix FCIArb, Julio César Betancourt and Tim Hardy FCIArb

The definitive text…

THERESOLVER | August 2016

p16-17 pic spread.indd 16

14/07/2016 17:08

CIArb EVENTS YOUNG MEMBERS GROUP SEMINAR The London and South East Young Members Group held a seminar titled ‘A Practical Introduction to the World of Arbitration’ on 16 June. Guest speakers at the event, which was hosted by White & Case LLP in London, were Artem Doudko FCIArb and Ronan O’Reilly MCIArb.

Two attendees at the event

Amanda Lee FCIArb, Sabina Adascalitei MCIArb, Ronan O’Reilly, Aje Adeniyi and Artem Doudko

Amanda Lee, Sabina Adascalitei and Aje Adeniyi

The event provided an opportunity to network

Questions from the floor Ronan O’Reilly chats to an attendee

Participants mingle at the event The event attracted a good crowd

Participants gained insight into arbitration

Audience members heard what to expect during an arbitration

A reception hosted by White & Case followed the seminar

August 2016 | THERESOLVER

p16-17 pic spread.indd 17

17

14/07/2016 16:17

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

August – November 2016 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 Now available online 20 September or 11 November Duration: 1 day Fee: £480 An explanation of the main disciplines of alternative dispute resolution.

Module 1 (Mediation) 2,3,4,5,7 November Duration: 5 days Fee: £2,400 Intensive five-day course for those who wish to become an accredited mediator.

Introduction to International Arbitration 12 October Duration: 1 day Fee: £480 An introduction to the general principles of international arbitration.

Module 2 (Mediation) 8 November 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.

Module 1 (Law of Obligations and Civil Evidence) 27 September Duration: 9 months Fee: £1,320 Provides a firm understanding of the key elements of obligations and evidential law that affect civil and commercial disputes.

Module 2 (International Arbitration) 12 October Duration: 5 months Fee: £1,320 This module provides detailed knowledge of the law underpinning international arbitration.

n1

Accelerated Route to Membership (International Arbitration) 16-17 November Duration: 2 days Fee: £1,320 Assesses whether the candidate has the knowledge required to understand the process of international arbitration.

Accelerated Route towards Fellowship (International Arbitration) 20-21 October Duration: 2 days Fee: £1,860 Specially designed for busy, legally qualified professionals.

Diploma in International Commercial Arbitration (Parts 1 & 2) 2-10 September and 26 October Duration: 9 days + 5 months Fee: £7,200. Location: Oxford Part one is a residential course covering the key elements of the process. Part two provides the knowledge for writing a final, reasoned arbitration award.

Introduction to Mediation 4 October Duration: 1 day Fee: £480 An introduction to the general principles of mediation.

18

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

Introduction to Domestic Arbitration 19 October Duration: 1 day Fee: £480 Provides an understanding of the general principles of domestic arbitration.

Module 3 (International Arbitration) 5 October Duration: 7 months Fee: £1,860 Provides detailed knowledge of the main elements of international arbitration.

Module 4 (International Arbitration) 26 October Duration: 5 months Fee: £1,320 Provides the knowledge required to write an international arbitration award.

Module 3 (Mediation) 27 September See Module 1, Adjudication, for details.

Module 1 (Law of Obligations and Civil Evidence) 27 September 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 2 (Domestic Arbitration) 13 October Duration: 5 months Fee: £1,320 Provides detailed knowledge of the law underpinning domestic arbitration.

Module 3 (Domestic Arbitration) 5 October Duration: 7 months Fee: £1,860 Provides detailed knowledge of the main practice and procedural elements of domestic arbitration.

Module 4 (Domestic Arbitration) 26 October Duration: 5 months Fee: £1,320 Provides the knowledge required to write a final, reasoned and enforceable domestic arbitration award.

For those with substantial unassessed knowledge of domestic arbitration.

Introduction to Construction Adjudication 15 September Duration: 1 day Fee: £480 An introduction to good practice and procedure in construction adjudication.

Module 1 (Law of Obligations and Civil Evidence) – (this becomes Module 3 in the Mediation Pathway) 27 September 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) 5 October Duration: 5 months Fee: £1,320 Provides detailed knowledge of the law underpinning the process and procedure of construction adjudication.

Module 3 (Construction Adjudication) 5 October Duration: 6 months Fee: £1,860 Provides detailed knowledge of the main practice and procedural elements of construction adjudication.

Module 4 (Construction Adjudication) 27 October Duration: 5 months Fee: £1,320 Provides the knowledge required to analyse submissions, arrive at a conclusion and write a cogent and complete decision.

Accelerated Route towards Fellowship Construction Adjudication) 21-22 September Duration: 2 days Fee: £1,860 Assesses whether the candidate has the knowledge required to apply the principles and procedure of construction adjudication.

CIArb EVENT SPOTLIGHT 19 August: CIArb Malaysia Young Members Group 1st Regional Conference, Kuala Lumpur This will be on the theme, ‘Bridging the Gaps’ and held at the Kuala Lumpur Regional Centre for Arbitration. The conference will cover critical themes and bring together student and senior arbitration practitioners from around the world to discuss challenges and share ideas.

Speakers include YA Tuan Lee Swee Seng, Datuk Professor Sundra Rajoo C.Arb, Justin D’Agostino of Herbert Smith Freehills and Karen Mills C.Arb. For more details and to book, see → www.ciarb.org/malaysia 16 November: Alexander Lecture, London Fee: Free for members, £40 for non-members The Alexander Lecture, held at CIArb’s headquarters in London, is considered one of the most widely respected events in the ADR calendar. This year’s speaker is Bernardo M Cremades FCIArb, a pioneer in the field of international arbitration.

Dr Cremades acts as an arbitrator in domestic and international disputes, including both commercial arbitration and investment protection.

Registration opens at 6.15pm for a 6.55pm start. The lecture will be followed by a networking reception.

SAVE THE DATE 26 September: Mediation Symposium, London For more details → www.ciarb.org → Email: events@ciarb.org

RECOMMENDED COURSE Mediation Training and Assessment

Accelerated Route to Membership (Domestic Arbitration) 16-17 November Duration: 2 days Fee: £1,320 A fast-track route to membership via the domestic arbitration pathway.

Module 1 (2,3,4,5,7 November) Fee: £2,400 Module 2 (8 November) Fee: £1,560

Accelerated Route towards Fellowship (Domestic Arbitration) 20-21 October Duration: 2 days Fee: £1,860

Module 2 is an assessment programme aimed at candidates who wish to become a CIArb Member and CIArb Accredited Mediator. It is also beneficial to those who wish to use mediation skills in their current profession.

For more information, call the Education and Training team: +44(0)20 7421 7439.

Module 1 is aimed at candidates who wish to become an accredited mediator.

On successful completion, candidates will be able to define mediation and explain its place in the context of other forms of dispute resolution; explain its advantages and disadvantages; demonstrate competence in the mediator’s core skills and demonstrate that they can manage a mediation.

THERESOLVER | August 2016

p18_what’s on.indd 18

14/07/2016 16:19

(I½RMRK -WWYIW MR -RXIVREXMSREP %VFMXVEXMSR Edited by Julio César Betancourt.

8LI ZSPYQI MW MRXIRHIH XS GSQQIQSVEXI XLI 100th anniversary of the Chartered Institute of Arbitrators XLI ½VWX PIEVRIH WSGMIX] MR XLI [SVPH HIZSXIH XS XLI XIEGLMRK SJ EVFMXVEXMSR

20%

DISCOUNT*

• %R MRZEPYEFPI GSPPIGXMSR SJ IWWE]W TVSZMHMRK I\TIVX KYMHERGI SR WSQI SJ XLI QSWX VIGIRX HIZIPSTQIRXW ERH GYVVIRX MWWYIW MR MRXIVREXMSREP EVFMXVEXMSR ˆ *IEXYVIW HMWXMRKYMWLIH MRXIVREXMSREP EVFMXVEXMSR TVEGXMXMSRIVW ERH [SVPH VIRS[RIH EGEHIQMGW GSZIVMRK HI½RMRK MWWYIW MR XLI ½IPH ˆ 4VSZMHIW TVEGXMGEP EHZMGI EW [IPP EW XLISVIXMGEP EREP]WMW SJ XLI MWWYIW ERH GLEPPIRKIW EWWSGMEXIH [MXL MRXIVREXMSREP arbitration ˆ -RGPYHIW VIJIVIRGIW XS QSVI XLER EVFMXVEXMSR VIPEXIH GEWIW ERH MR HITXL EREP]WMW SJ VIGIRX XVIRHW MR MRXIVREXMSREP EVFMXVEXMSR

MAY 2016 | 416 PAGES | HARDBACK 9780198783206 PRICE: £120.00

DISCOUNTED PRICE: £96.00 Ordering Details ONLINE www.oup.com/uk/law | POSTAGE & PACKAGING ;IFWMXI 3VHIVW *6)) JSV SVHIVW † SV SZIV 4PIEWI UYSXI ALFLY5F [LIR SVHIVMRK 0MQMX GSTMIW TIV XVERWEGXMSR 3JJIV ZEPMH YRXMP WX 1EVGL 8LMW SJJIV MW SRP] EZEMPEFPI XS MRHMZMHYEP

RSR XVEHI GYWXSQIVW [LIR SVHIVMRK HMVIGX JVSQ XLI 3\JSVH 9RMZIVWMX] 4VIWW [IFWMXI 8LMW SJJIV MW I\GPYWMZI ERH GERRSX FI VIHIIQIH MR GSRNYRGXMSR [MXL ER] SXLIV TVSQSXMSREP HMWGSYRXW eBooks: I&SSOW EVI RSX HMVIGXP] WSPH F] 394 *SV ER YT XS HEXI PMWX SJ I&SSO WYTTPMIVW ZMWMX www.oup.com/uk/academic/ebooks. eBooks are RSX TEVX SJ ER] HMWGSYRX TVSQSXMSRW SJJIVIH ;LMPWX [I EVI [SVOMRK LEVH XS IRWYVI XLEX I&SSOW EVI EZEMPEFPI EX XLI WEQI XMQI EW XLI TVMRXIH FSSO SR WSQI SGGEWMSRW XLIVI QE] FI E HIPE] 8LI WTIGM½GEXMSRW MR XLMW PIE¾IX GEXEPSKYI MRGPYHMRK [MXLSYX PMQMXEXMSR TVMGI JSVQEX I\XIRX RYQFIV SJ MPPYWXVEXMSRW ERH QSRXL SJ TYFPMGEXMSR [IVI EW EGGYVEXI EW TSWWMFPI EX XLI XMQI MX [IRX XS TVIWW Registered charity number: 803725 © Chartered Institute of Arbitrators 2016

RES.03.16.019.indd 1

14/07/2016 11:37

Central London Arbitration Suites Available '-%VF &PSSQWFYV] 7UYEVI 0SRHSR

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: New for 2016 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 •

•

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

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

RES.01.16.019.indd 1

19/01/2016 15:28