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
CIArb members debate whether the UK should exit or remain in the EU Future plans for CIArb’s Dispute Appointment Service How to update your membership profile and details In pictures: Second International Women’s Conference Highlights from events in Asia and Australia May 2016
www.ciarb.org
Easing the strain The success of arbitration in domain name disputes
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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: 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 Deborah Watt T: +44 (0)20 7421 7481 E: marketing@ciarb.org EDUCATION AND TRAINING T: +44 (0)20 7421 7439 E: education@ciarb.org EVENTS Sophie Cordes T: +44 (0)20 7421 7427 E: events@ciarb.org
Sundra Rajoo
LEADER
IN THE LAST ISSUE, I MENTIONED THE STRONG camaraderie and willingness to work together for the common good of the global ADR industry that exists within the Institute. Almost half a year into ushering in our next 100 years, these values have become increasingly telling as I had the pleasure of delivering presentations, meeting and engaging in discussions with members from the North America and Far East branches, as well as crossing paths with many of you at global arbitration conferences held in Singapore and China. Gone are the days where we are required to work from just one or two jurisdictions and within cultures that we are familiar with. The arbitration landscape has shifted focus to the emerging markets, most notably China. Its ‘one belt, one road’ approach has seen thousands of arbitration cases being recorded yearly. So it is of little surprise that some of our members are constantly on the road to arbitrate, adjudicate and mediate, allowing businesses to continue to flourish and having a positive impact on the global economy. Relevant training and dissemination of information must be continuous and enhanced. Capacity building must also be continuous with a focus on the current challenges. The groundwork for this has already begun through email exchanges and impromptu conversations at conferences. Let us work collectively in seeing this through. I have continued to visit various branches and chapters to promote indigenous discussion, discourse and skills development in ADR. The key to the prosperity and long-term relevance of this Institute lies in working together and extending support to all. Through your continued energy and dedication, CIArb will undoubtedly help to ensure the lasting success of ADR globally.
The arbitration landscape has shifted focus to the emerging markets, most notably China
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 © 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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CONTENTS WATCH 4-5 News: CIArb members discuss Brexit; New construction adjudication guideline 6 Analysis: What the future holds for CIArb’s Dispute Appointment Service 9 Law round-up: Anzen Ltd and others v Hermes One Limited (British Virgin Islands) [2016]; Chimbusco International Petroleum (Singapore) Pte Ltd v Fully Best Trading Ltd
REGULARS AND FEATURES 8 10 14 16 18 19
Opinion: Confidentiality is the cornerstone of mediation, says Margaret BickfordSmith QC, but ways must be found to widen users’ understanding of the process Cover: Internet domain name disputes are flourishing and arbitration is playing a powerful part in their resolution CIArb news: News from around the world, including Hong Kong and Malaysia CIArb events: Second International Women’s Conference; Annual Willem C Vis International Commercial Arbitration Moot How to… Update your membership profile and details What’s On: Round-up of upcoming training courses May 2016 | THERESOLVER
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WATCH
Brexit in numbers To leave:
£128 bn
Total savings made between 2020 and 2030 as a result of the UK foregoing its net contributions to the EU budget
CIArb maintains neutrality over Brexit The UK economy is strong enough to survive a potential exit of the EU, it was widely agreed at a CIArb debate on the EU referendum. But there are many other significant issues that need to be weighed up in deciding whether to leave or remain in the EU, including issues around ADR. Senior representatives from both campaigns, Marcus Booth, a Partner at White & Case, and Clive Thorne FCIArb, a Partner at Wedlake Bell, put forward compelling arguments scoping out the issues around the impact of a Brexit. CIArb itself remains neutral to the issue. Booth, speaking in favour of the Britain Stronger in Europe campaign, said that the union was “a noble idea” and that the UK is more secure and safe as a result of being a part of it. “We are stronger because we can have a leading role in one of the leading organisations of the world,” he said. “One of the greatest achievements of Europe has been the maintenance of peace within its member states.” He argued that if we left, “Europe wouldn’t make it easy for us” and that the promise of “sovereignty is illusory.” “We would still have to comply with EU standards if we are selling to it. We would still also have to comply with World Trade Organization regulations.”
ANDY BARKER
But members in London debate the pros and cons of the UK’s EU membership
Marcus Booth: Britain Stronger in Europe
While Booth admitted Britain’s economy would ultimately survive, he made reference to a Law Society report, which concluded that the legal services sector would be disproportionately disadvantaged compared with the whole UK economy, if the UK was to leave. “Brexit would be a needless distraction” and be “needlessly harmful”, he said. Thorne, who argued in favour of the Vote Leave campaign, said it boiled down to whether the country wished to be selfgoverning or remain part of a strong union, what he referred to
Clive Thorne: Vote Leave
as “the United States of Europe.” The renegotiation exercise revealed the UK’s lack of influence and the EU’s incapability of being reformed, he said. Thorne also refuted Booth’s argument that the EU improved security. “It is a trite fallacy that the EU has preserved peace,” adding that the response in Brussels after the terrorist attacks showed incompetence. In terms of the economy, Thorne said that reports showed that post-Brexit, the UK would save £12 billion net per annum in payments to the EU.
Meanwhile, Thorne said the effect on the legal profession would likely be minimal. And as for ADR issues, he said “the mediation directive was not satisfactory, another example of the EU interfering in areas it shouldn’t.” Upon leaving the EU, there would, he admitted, be a transitional period, but he concluded, “there is no doubt that the fifth largest economy in the world will survive, adapt and flourish.” The debate was chaired by CIArb Director General Anthony Abrahams MCIArb.
LCIA India to close after six years due to lack of demand LCIA India is to close due to insufficient demand for LCIA India Rules. From 1 June, existing cases before LCIA India will be supported from the London office and the London-based casework team. 4
LCIA India Rules-based arbitration and mediation will not be offered for agreements concluded after 1 June. The subsidiary was first opened in 2009 to promote the use of arbitration and ADR through an Indian arbitral
institution that would offer institutionally administered arbitration based on Indiaspecific rules. However, the LCIA said, after six years it has become apparent that Indian parties are equally content to continue using the
LCIA Rules and “there are insufficient adopters of LCIA India clauses to justify a continuation of the LCIA India Rules as a separate offering.” The LCIA will revert to serving the Indian market from London, as it has traditionally done.
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Brexit in numbers To stay:
£1.7 bn
Projected annual output loss for the legal services industry in 2030 if the UK leaves the EU.
Source for both: Law Society report, The UK Legal Services Sector and the EU
New adjudication practice guideline CIArb has worked closely with the Adjudication Society in publishing a revised Guideline on the ‘Jurisdiction of the UK Construction Adjudicator’, write Nicholas Gould FCIArb and Claire King FCIArb. Published at the start of 2016, this will be the third edition. The Guideline was first published in 2011 with the aim of providing a sensible and practical approach to some of the everyday issues encountered in adjudication in relation to jurisdiction. The 2012 edition had incorporated the amendments made to the Housing Grants, Construction and Regeneration Act 1996 by the Local Democracy, Economic Development and Construction Act 2009. However, the time was felt to be right for a review given the Act (as amended) has now been in force for a number of years. A consultation was undertaken last autumn with feedback and comments reviewed and debated by a drafting committee as well as by representatives of CIArb and the Adjudication Society. The revisions in the 2016 edition are as follows: • Clarification that the Guideline
SHUTTERSTOCK
Third edition updates the information and guidance found in earlier editions
does not extend to Northern Ireland or to international standard forms providing for adjudication such as the FIDIC forms of contract; • Amendments to Paragraph 2.1 dealing with threshold jurisdiction. These now provide that an “initial and proportionate review to flag any issues” on jurisdiction should be undertaken by the adjudicator upon accepting the appointment. The committee
considered that this is right as a matter of law but the revised wording makes it clear that the adjudicator’s review of their jurisdiction needs to be proportional and based on the information available as at the time of the Adjudication Notice. A distinction has been made between the initial conflict check that an adjudicator should carry out and the checklist of jurisdictional hurdles that an adjudicator should keep under
review during the adjudication; • In Paragraph 2.1.2.10, an endnote now flags that some rules provide for more than one dispute to be referred to adjudication and refers to Willmott Dixon Housing Ltd v Newlon Housing Trust. • Sections 2.5 and 2.6 have been amended to clarify the position regarding costs. Nicholas Gould and Claire King are Partners at Fenwick Elliott LLP
Joint-action agreement with ICES Membership and Fellowship CIArb has signed a Memorandum of Understanding (MOU) with the Chartered Institution of Civil Engineering Surveyors (ICES). The MOU was entered into to provide a basis for joint action in areas of common interest including: continuing professional development, education, member services, professional services and other services relevant to both organisations. CIArb Director General Anthony Abrahams MCIArb
courses to be held in Brazil
signed on behalf of CIArb, and ICES President David Loosemore MCIArb, signed on its behalf.
CIArb is to offer the International Arbitration Accelerated Route to Membership and the Accelerated Route towards Fellowship courses in São Paulo, Brazil, this September. Supported by the Center for Arbitration and Mediation of the Chamber of Commerce BrazilCanada, the courses will consist of workshops and examinations. The Accelerated Route to
Membership course will be held on 5-6 September and the Accelerated Route to Fellowship will take place from 8-10 September. The courses take place before the Sixth Society of Construction Law International Conference 2016, which will be held in São Paulo from 13-15 September. → Email apapa@ciarb.org to register for the CIArb courses and receive a discount. May 2016 | THERESOLVER
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ANALYSIS DISPUTE APPOINTMENT SERVICE Keisha Williams, Head of CIArb’s Dispute Appointment Service (DAS), discusses future plans and new schemes
Y Keisha Williams
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Raising the profile of ADR You joined CIArb as Head of DAS in June 2015. What is your background in ADR and what does your current role entail? My fascination with alternative dispute resolution (ADR) started many years ago on the back of the Woolf reforms in 1999, when mediation was propelled into the spotlight. When I left private practice at a City law firm in 2009, I was appointed as Counsel at the London Court of International Arbitration (LCIA), where I spent six years managing the casework of arbitrations under the auspices of the LCIA Rules and the UNCITRAL Rules. In my last two years, I assumed the roles of Deputy Registrar of the LCIA and Acting Registrar of the DIFC-LCIA, and took a more active role in the supervision of the LCIA’s overseas ventures in Dubai, India and Mauritius. So I bring to CIArb both an institutional perspective and the benefit of having been a solicitor in private practice, as well as the experience I have gained from overseeing hundreds of international arbitrations and mediations in a wide range of industry sectors. These have included grappling with disclosure and jurisdictional issues pre-appointment, the review and issuance of awards, and everything in between. My current role gives me the opportunity to put that unique insight and experience to good use. As Head of DAS, I am tasked with managing the Institute’s
facilitation of ADR services and implementing all of the Institute’s ADR services and schemes. So, in addition to supervising the appointment process for the referrals we receive, much of my role entails developing the services DAS offers, raising the profile of DAS – and ADR in general – as well as engaging with those in our membership who wish to pursue careers as dispute resolvers. Could you explain DAS in a bit more detail? It provides quick, confidential and cost effective methods of dispute avoidance and dispute resolution for civil and commercial disputes in diverse areas, involving domestic or international parties. DAS either appoints, or recommends for party appointment, suitable candidates under a range of ADR methods, including arbitration, adjudication, mediation and expert determination. DAS also offers bespoke ADR schemes catered to specialist areas or lowvalue disputes and institutional rules, such as the revised CIArb Arbitration Rules 2015. The most popular service is the Presidential Appointments process. What does it entail? A ‘Presidential Appointment’ is essentially an appointment made by the President of CIArb. Where the parties have agreed in writing for the President of CIArb to appoint a dispute resolver – often
in reliance on a pre-existing dispute resolution clause – and the matter has been referred to DAS for an appointment, the President will select and appoint a dispute resolver from the applicable Presidential Panel with the assistance of the DAS team. CIArb has three Presidential Panels: a Panel of Arbitrators, Panel of Adjudicators and a Panel of Mediators. Each comprises pools of people from CIArb’s membership, all of whom have demonstrated that they have a suitable level of knowledge, skill and experience in their discipline, together with a commitment to ongoing personal professional development and to following high ethical and professional standards of conduct. CIArb has just launched the Business Arbitration Scheme (BAS). Can you describe how it works and which gap in the market it is filling? BAS was launched by CIArb in December last year. The scheme, which is operated by DAS, aims to provide simple, cost-effective and timely resolution of disputes of low-to-medium monetary
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How should one set about getting appointments as a dispute resolver with CIArb? DAS generally only appoints, or suggests for appointment, candidates who are members of the Institute. For our Presidential Appointments process, where the Presidential Panels are used, a member has to be a Fellow of the Institute in order to be eligible to apply to join the Presidential Panel of Adjudicators or Mediators.
What does DAS have in store this year? We will be embarking on an annual roadshow to law firms in London and around the UK with the aim of better informing lawyers and, in turn, their clients, about DAS and the various ADR rules and schemes we offer. This is the first time DAS has gone on the road, so to speak, so we are excited at the opportunity to engage with the legal community in person, to share experiences, and to hopefully get more CIArb dispute-resolution clauses entered into contracts. The introduction of BAS also provides us with an excellent
opportunity to engage with more small business owners, many of whom know little about ADR. By working with regional chambers of commerce and associations for small businesses and the self-employed, as well as partnering with other leading professional bodies, we hope the ADR message will resonate with a new audience. Finally, DAS and Falcon Chambers Arbitration (FCA) will embark on a joint initiative this year to promote arbitration and ADR as a means of resolving property disputes. We are working with FCA on the delivery of a series of in-house lunchtime seminars for property professionals in England’s leading property litigation, consultancy and surveying firms. The seminars will address issues and topics related to arbitration and ADR in the property arena, explain the benefits of arbitration and ADR as effective means of resolving disputes, and provide information on DAS’ Property Disputes Scheme. Any firms that are interested in getting more information on this initiative, or the DAS Roadshow, should contact the DAS team.
MORE INFO SHUTTERSTOCK
value before a sole arbitrator. Crucially, BAS is a fixed-fee scheme with respect to CIArb’s administrative costs and the arbitrator’s fees. Another important feature of BAS is that it offers parties a final and legally binding award in less than three months from the appointment of the arbitrator. The scheme is simple enough to allow most businesses to present their own case without legal representation. Formal procedural steps have been kept to a minimum, which shortens the timetable and reduces the expense of preparing the case. The costs recoverable have also been limited to protect parties against liability for their
opponents’ high legal bills. While the scheme is applicable to any dispute where the claim is between £5,000 to £100,000, BAS was created by CIArb particularly with small businesses in mind following the further round of court-fee increases last year, which has left many small businesses looking for alternative routes to justice.
For the Presidential Panel of Arbitrators, one must be a Chartered Arbitrator. The application form and applicable guidance notes to join any of the Panels can be found on our website: www.ciarb.org/das/presidentialpanels. For our various ADR schemes, there are usually specialist panels set up, each with their own criteria for eligibility. The BAS panel of Arbitrators, for example, is open to Fellows of the Institute based in England and Wales. Those members interested in gaining opportunities for appointment, but are not yet at the right grade of membership, can develop their knowledge and experience by moving through CIArb’s Pathways.
For more information on DAS, go to → www.ciarb.org/das or email: das@ciarb.org
May 2016 | THERESOLVER
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OPINION MEDIATION
Margaret
Bickford-Smith Confidentiality is the cornerstone of mediation. But we must find a way to make potential users understand the process
Margaret Bickford-Smith QC MCIArb (bickfordsmith@ crownofficechambers.com) practises as a mediator from Crown Office Chambers. She sits as a Recorder and is a former Chair of the London Branch of CIArb.
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WHAT ARE THE MERITS OF touted as a quicker and cheaper confidentiality in alternative way out for disputants keen to dispute resolution? This article airs cut short their involvement in some ideas prompted by the costly litigation. recent BAILII Lecture of the Lord But to over-emphasise these Chief Justice of England and Wales, aspects of mediation is to Lord Thomas of Cwmgiedd. underrate its real advantages. Lord Thomas draws attention What a well-conducted to the diminution in arbitration mediation can offer is an appeals, which he believes will opportunity for early settlement lead to difficulties in the proper within a short time-period when development of commercial law. the parties can focus on the issues There should, he says, be greater that are important in the dispute, scope for appeals from and the practical imperatives that arbitrations, less referrals to are important to them. Success arbitration, and more input in settling the dispute will cut from the courts. short court He points with proceedings, and concern to the US save substantial The decision in experience, legal costs and Farm Assist Ltd where arbitration personal/ v DEFRA that is widely used as internal in limited circumstances a it is quicker and management mediator can be cheaper for time. called as a witness disputants, and This demands to what occurred proper apt to reduce the in a mediation – burden of preparation by though criticised by the parties, in litigation upon some mediators, overworked assembling and was welcome courts. This, passing on their he considers, mediation undermines aspects of US law’s material, and by the mediator, development. He views with who needs to be familiar with it. coolness the perceived advantages In mediation the aspect of of arbitration: in particular he confidentiality is paramount: considers the merits of indeed UK mediation practice confidentiality overrated. depends upon “double The purpose of this article is confidentiality”. First, no party not to comment on the to a mediation is supposed to arbitration/ litigation issue, but to divulge information about the consider confidentiality in course, or maybe even the mediation, where some similar existence, of the mediation. arguments can be made. Second, within the mediation itself Mediation can be seen as a no party may without consent useful way to reduce the pressures divulge, in particular to other of court business for a court parties to the mediation, what service eager for cost-cutting happens in a confidential caucus. measures. And mediation too is Consent to convey factual
information, or an offer, may be given to the mediator during a caucus, but that consent is expressly circumscribed; and when the mediator and a party discuss exactly what might be useful for the mediator to tell other parties, this is the opportunity for the mediator to use experience and talent to help progress discussions. It cannot be a surprise that courts are wary of confidential processes they cannot control. The decision in Farm Assist Ltd v DEFRA, that in limited circumstances a mediator can be called as a witness to what occurred in a mediation, though criticised by some mediators, was a welcome development, I believe. On public policy grounds it could never have been right for a mediation to be conducted in a grossly unfair way without opportunity for redress. But confidentiality in mediation has another result I fear the mediation community has not addressed. Although legal professionals themselves are now familiar with mediation (and many are highly sophisticated in its use), all too many potential users – individuals and commercial operators – simply do not understand what a mediator actually does. A body of consumers who, through lack of knowledge, view a mediator’s role as somewhere between do-gooding and the black arts is not a good foundation for the development of this valuable mode of dispute resolution. A little light needs to be let in, somehow, to illustrate mediation in practice.
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LAW
An overview of recent key court cases
ROUND-UP PRIVY COUNCIL INTERPRETS PERMISSIVE LANGUAGE AS GIVING PARTIES THE RIGHT TO COMPEL ARBITRATION
THE CASE ○ ARBITRATION
Anzen Limited and others (Appellants) v Hermes One Limited (Respondent) (British Virgin Islands) [2016] UKPC 1 Privy Council Appeal No 0041 of 2015
THE APPEAL RAISED SHORT AND INTERESTING POINTS ON the interpretation of an arbitration clause in a shareholders’ agreement providing that in the event of an unresolved dispute “any party may submit to binding arbitration”. The parties are shareholders in a BVI company (Everbread) that was established to pursue the development of airline fare search software and entered into a shareholders’ agreement dated July 2012 (SHA). The SHA provided that if a dispute could not be settled within 20 days through negotiation, any party may submit the dispute to binding arbitration. H brought proceedings against A and Everbread claiming statutory remedies in relation to A’s alleged unfairly prejudicial conduct in the management of the affairs of Everbread, damages and/or the appointment of a liquidator over Everbread. A sought to stay the proceedings on the grounds that the SHA contained a valid and binding arbitration provision. At first instance, this application was dismissed on the basis that (i) the SHA conferred an option upon any party to submit to a dispute arising under or relating to the SHA to arbitration, (ii) if one party commenced litigation in respect of a dispute, the option under the SHA was only exercisable by the other party by referring the identical subject matter to arbitration, and (iii) since A had not done this, but had merely sought a stay of the proceedings, it could not rely
on section 6(2) of the Arbitration Ordinance 1976. The Court of Appeal dismissed A’s appeal essentially for the same reasons. The Privy Council was invited to consider the correctness of the decisions of the judge and Court of Appeal on these points and the construction of the arbitration clause. ○ THE JUDGMENT
The Privy Council overturned the decisions of the lower courts. In doing so, it held that the wording “any party may submit to binding arbitration” enabled a party wishing for a dispute to be arbitrated either to commence the process itself or to insist on arbitration, before or after the
other party commences litigation, without itself actually having to commence arbitration if it does not wish to. A stay of the court proceedings was therefore ordered. ○ WHAT IT MEANS
The Privy Council’s interpretation of this permissive clause is that it is an exclusive agreement to arbitrate. However, unless and until one party insists on arbitration, there is no promise not to litigate. In these circumstances, and where litigation is properly begun, it should be stayed when arbitration is invoked. The full judgment is available at:
→ www.jcpc.uk/cases/docs/jcpc-20150041-judgment.pdf
COST CONSEQUENCES OF AN UNSUCCESSFUL CHALLENGE TO AN ARBITRATION AGREEMENT
THE CASE ○ ARBITRATION
Chimbusco International Petroleum (Singapore) Pte Ltd v Fully Best Trading Ltd (HCA 2416/2014)
C COMMENCED PROCEEDINGS AGAINST F TO SEEK payment of sums due under an agreement for its supply of fuel oil. In March 2015, D applied by summons for a stay of the action to arbitration, pursuant to an arbitration clause contained in the agreement. The hearing of the stay application was adjourned to 30 November 2015. On 19 November, C confirmed that it consented to D’s application for stay of this action. The remaining issue before the court related to whether C should pay D’s costs on an indemnity basis, or whether, as C claims, the costs should be in the cause of the arbitration. Since the decision in A v R (Arbitration:Enforcement) [2009] HKLRD 389, it has been the practice in Hong Kong, where a party unsuccessfully applies to appeal against, set aside or refuse enforcement of an arbitral award, to order costs on an indemnity basis, unless special circumstances can be shown. In C v F, C sought to distinguish indemnity costs being awarded in cases of challenges against an arbitral award, on the basis that in such cases, the parties have already gone through arbitration and had the opportunity to argue their case. Having succeeded before the tribunal, the winning party should not be taxed again by the losing party rearguing the case before the court. In the present case, there is no arbitration yet, and no award. The basis of awarding costs on an indemnity basis, when a party unsuccessfully seeks to challenge an arbitral award, either to set it aside or to resist its enforcement, is that the arbitral award is made under a consensual agreement, whereby the parties have agreed that they will
submit their dispute to arbitration, and that the award made under such an arbitration agreement will be treated by them as final and binding. ○ THE JUDGMENT
The judge saw no reason to differentiate between unsuccessful attempts to resist enforcement of an arbitral award made under an arbitration agreement and unsuccessful attempts to resist enforcement and recognition of the arbitration itself. The judge also rejected C’s argument that there were special circumstances that should result in the general rule of ordering indemnity costs not being followed. The judge was satisfied that there was clear evidence of an arbitration agreement between the parties and that the agreement was not void by
reason or uncertainty as alleged by B nor was it inoperative or incapable of being performed. There was a clear intention by the parties to refer disputes to arbitration in Singapore under the contract. C was ordered to pay the costs of D’s application to stay the proceedings on an indemnity basis. ○ WHAT IT MEANS
This is another indication from the Hong Kong courts that they will not permit any unmerited interference with arbitration and are increasingly willing to sanction parties who engage in such conduct. The full judgment is available at:
→ http://legalref.judiciary.gov.hk/lrs/ common/search/search_result_detail_ frame.jsp?DIS=101668&QS=%2B&TP=JU Both reports by Tom Cadman, Director of Governance and Legal Services at CIArb. May 2016 | THERESOLVER
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The battle of the web domains As the internet’s commercial role expands, domain name disputes are flourishing. And arbitration is playing a powerful part in their resolution
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CYBER LAW DOMAIN NAME DISPUTES
Words: Rima Evans Illustration: Nick Lowndes
Domain names are merely a technical shortcut, addresses that can be quickly accessed via the internet all over the world. While computers identify each other using numbers (an IP address) it is impractical for humans to remember a string of digits each time they want to search for a website. So computer scientists came up with a more user-friendly method, the domain name system (DNS), assigning unique names rather than numbers with which to navigate the internet and reach another person. Thanks to the net’s accelerated growth and expanded role in commerce, domain names now have much more than a technological function. They act as the foundation of the internet, according to The Hon Neil Brown QC C.Arb, a prominent arbitrator in the domain name field, since they are required for the creation of websites and in turn, email addresses. They have also come to be a valuable form of personal property – domain names are becoming a critical link between the public, customers and individuals, a means of promoting and cementing a corporate and personal brand. As such, ownership of them is a serious issue and has opened up a steady flow of disputes. “It was thought that the number of disputes over domain names might decline over the years” says Brown. “Yet, if anything, these disputes are being fought with increased enthusiasm as the value of good domain names increases.” Some 2,754 cases were filed with the World Intellectual Property Organisation (WIPO) in 2015, an increase of 4.6 per cent on the previous year. Cases in 2015 involved parties from 113 countries. And arbitration is playing a central role in addressing this relatively recent source of conflict. First, how do disputes arise? The main cause is confusingly similar domain names that throw up issues over ownership and that result in one party claiming another has registered a domain name wrongly, and that it should be transferred to them. A domain name comprises two elements, before and after ‘the dot.’ The part that follows the dot is called a top-level domain (TLD) with some of the more popular and familiar suffixes being com, net, org, and so on. TLDs fall into two categories: country code top-level domains (ccTLDs ) such as .uk or .au, or generic top-level domains (gTLDs) such as .biz, .info, .jobs, or .museum. The section that precedes the dot is the part that can then be used for websites and to support email. It may consist of an May 2016 | THERESOLVER
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CYBER LAW DOMAIN NAME DISPUTES individual’s name, trademark, trading name, business name, organisation – the choice is endless. However, chosen domain names have to be registered via registrars, organisations that act as ‘retailers’ of domain names and that charge for the service. It is a business that is booming. By the third quarter of 2015, there were 299 million domain name registrations across all TLDs, a 5.3 per cent increase year over year, according to Verisign. And it is the principal responsibility of the company, the Internet Corporation for Assigned Names and Numbers (ICANN), a not-for-profit formed in 1998, to undertake the enormous task of coordinating, creating and managing the domain name system. Its work safeguards the reliability of the internet “phone book” and ensures the net operates safely, and as a single and global entity. ICANN describes disputes as arising through “alleged abusive registrations of domain names.” For example, where a trademark is used in the domain name of another unconnected website. Brown explains: “A trademark owner, let us call it Ford, which it uses to sell its motor vehicles finds that someone has registered the domain name fordspareparts.com, and it is being used to sell counterfeit, second-hand or illegally obtained Ford spare parts.” Another example is cybersquatting. This is where a person registers a domain name similar or identical to a well-known trademark or brand, with the deliberate intention of making a profit by selling it to the business, which may want to register it themselves. Cybersquatting disputes relating to new gTLDs accounted for 10.5 per cent of WIPO’s caseload in 2015, which covered a total of 4,364 domain names. Kate Colleary, arbitrator and Managing Partner at Colleary and Company, who has acted in Intellectual Property issues for brands such as Coca-Cola, Heinz and Kellogg’s says it
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Typosquatting is where a domain name is registered that resembles a registered name but contains a typographical error can be a lucrative business. “People ‘bulk buy’ domain names and just sit on them (hence the term cybersquatting) without any intention of using them. Their hope is then that the trademark owner will buy it from them at an inflated price.” Organisations including Microsoft and eBay as well as celebrities such as Morgan Freeman and Madonna have fallen prey to cybersquatting. A more refined version of the practice is typosquatting where a domain name is registered that closely resembles the valuable and registered name but contains a single typographical ‘error’. One such campaign involves the country Oman’s ccTLD, which is .om and, of course, very similar to the more widely used suffix .com. A study conducted in March this year by cybersecurity firm Endgame demonstrated how this practice works. It looked at 5,000 of the most popular domains globally to see if the brand resolved to either a .om or c.om domain. Just 15 of the .om domains were registered by the legitimate brand owner including pizzahut.om, bbc.om or marriott.om. The rest are registered by third parties. Some .om sites redirect visitors to adware sites or attempt to trick users into installing malicious software. The study concluded: “The majority of .om registered domains are malicious, according to our research, and they are receiving a non-trivial amount of traffic. Equally concerning, many popular sites remain unregistered and therefore vulnerable.” Other examples of disputed registrations may arise from ‘gripe sites’ that are devoted to mocking or criticising an organisation, institution,
person or place. Examples include walmartsucks.com or natwestsucks.com. Though there is a defence here that the site is simply used to air legitimate grievances, a dispute could follow if the registrant is acting in bad faith, for example, by trying to elicit commercial gain from the trademark holder. David Levin QC MCIArb, Barrister, Arbitrator and Mediator also reminds us that genuine disputes arise. It is all too easy given the complexity and vastness of language and words. “There are no global laws applicable to domain name registration so you can register a domain name in your country that incorporates what might be a trademark or brand in another country. You might not know of the significance of the name elsewhere. You might then use that domain name for a number of years and establish a reputation on the back of it. So, who does it rightfully belong to?” The number of disputes is on the rise for two reasons, according to Brown. First, is the value of a good name. “All the good names have been taken. So the millions of names that have been registered become more valuable over time or at least they do in many cases. But not all. Some people buy domain names and find they are virtually worthless. But at the auctions, prices of $1,000, $10,000 or $100,000 are not rare and in a few cases the price has gone over $1 million.” Second, is the ever-expanding list of domains available. The list of gTLDs is constantly growing. According to ICANN, 1,300 new names could become available in the next few years, a move which has its commercial merits, but also further extends the scope for malicious registrations. Levin points out: “The opportunities for a resourceful individual to grab a well-known name and exploit it via the internet for nefarious purposes are endless. “As the digital age matures, the creation and maintenance of an electronic presence on the internet becomes an increasingly critical facet of commercial existence, thus the domain name must be protected.” Colleary likens the registration process to “planting your flag on a plot of land”. “When a new set of gTLDs is launched there is a flurry of activity. Brand owners will all have internal departments ready to register their brands as domain names as soon as those gTLDs are released. They know that if they don’t act within a short period of time, registration will be opened to the public, which leaves their brands available to
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WHAT IS THE ROLE OF THE ARBITRATOR IN DOMAIN NAME DISPUTES UNDER THE UDRP? The role of the arbitrator or panellist is to apply ICANN’s UDRP Policy and Rules to see if they have been complied with or broken, writes The Hon Neil Brown QC. It is this policy that tells us if the registrant has a right or legitimate interest in the domain name, and whether it has registered and used the domain name in bad faith. It is here that the real fight takes place and not only if the case is defended. There are certainly cases where, although the claim is undefended, it has not been proved and the complainant has lost the undefended case. So, what do you have to prove to win? The complainant must prove three elements before it can have a domain name transferred to it or cancelled. All three of these elements have to be proved, if you fail on one the case is lost. The three elements must also be proved by evidence; a frequent failing in these cases is where parties and their legal advisers simply make assertions, rather than prove facts by evidence. Also, being a civil case, the proof must be on the balance of probabilities. The three elements that must be proved are: (i) That the domain name being claimed is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) The party who holds the domain name has no rights or legitimate interests in it; and (iii) That the domain name has been registered and is being used in bad faith. Brown’s domain name cases can be seen at www.domaintimes.info cybersquatters and others to buy.” Arbitration has established itself as a principal method for the resolution of domain name disputes. A tailored scheme was initiated by WIPO, but mandated by ICANN in 1999, called the Uniform Domain Name Dispute Resolution Policy (UDRP), a system of compulsory arbitration of disputes over the most prominent gTLDs, as well as some ccTLDs. It looks at whether the party who registered the domain name had a right to do so and whether they acted in bad faith. “The UDRP system has been a wonderful success and produced great results,” says Brown. “There have been court cases but very few of them. There have been at least 53,000 decided arbitration cases, all of which are posted on the internet [a key difference to usual arbitration proceedings, which are confidential], so a large body of experience has been built up. “As the years have passed, the success of the UDRP has been due to the fact that it is a system comparatively free of legal complexity, conducted completely online (using written submissions only) thus reducing travel and kept within strict time limits. It is a system that produces a result quickly and economically, and a decision that is automatically enforceable and one that produces finality and closure.” ICANN-approved providers of dispute
resolution services will appoint an arbitrator or arbitrators after a complaint is made. Decisions have to be given by a panel within 14 days and the fees start from $1,500 (for a single panellist for up to five domain names). The system circumvents any jurisdictional issues and once a complaint is filed the registrar has to ‘freeze’ the domain name so the respondent cannot avoid the dispute by cancelling registration and re-registering with another registrar. Decisions are final and there is no appeal. Levin, a WIPO Domain Name Panellist, also says: “Any dispute panel decision determining the rights to a domain name must be implemented by the relevant registrar so the complainant party, if successful, does not have to worry about enforcement. Enforcement will be effected within days. “The losing party is entitled to attempt to proceed in any court having jurisdiction, to reargue the relative rights to the disputed domain name, although such a process must be commenced within 10 days of determination. It is very rare for this to occur, from my experience.” There can be one of three results: a) the transfer of the domain name to the complainant if the complainant has won; b) the cancellation of the domain name if the complainant has won, but is content just to have the domain name cancelled; or
c) an order that the claim be dismissed, with the domain name remaining in the ownership of the respondent. The compulsory nature of the scheme is what drives its success and gives arbitrators their jurisdiction. At the very purchase of a domain name via an accredited registrar, the buyer is bound to an agreement that automatically includes the compulsory arbitration process. Brown explains: “ICANN makes it a condition of buying a domain name that the contract under which you acquire the domain name includes the approved dispute resolution process, the UDRP. ICANN also has another important role, namely that it supervises accredited registrars who sell domain names and if an order to transfer a domain name is made by an arbitrator, the registrar must comply with it or be at risk of losing its accreditation from ICANN.” The arbitration scheme does have its limitations however. It can be challenged in a court of law and damages or lawyers’ costs are also irretrievable. Brown explains that resorting to national courts still remains despite the UDRP taking such a dominant role. “As a rough rule of thumb, if all that you want is the domain name, and you want it by a quick and economical process, you should arbitrate. If you want injunctions and specific orders, damages or any other remedy, going to law in the appropriate courts is the avenue that has to be followed.” Colleary highlights that resolution through private means is also common. “Many of the disputes I deal with are negotiated and resolved before making an application under the UDRP. The cybersquatter may offer the domain name for sale to a brand owner at a cheaper rate than UDRP fees. The domain name can then be transferred to the purchaser. An application for formal arbitration will be available should the negotiations fall through.” However, more than five years of the UDRP has demonstrated its effectiveness. Brown says: “Online resolution does work. It is possible, even in a difficult case, for the panellist to have access to all or virtually all of the evidence that a court would have before it. “The UDRP seems to me to have been such a success that we should study its policy and rules and see if they can be used as precedents for the resolution of other types of disputes such as in finance contracts like pay day loans, hotel bookings, catering and hiring services, and others. I am certain that they can be.” THERESOLVER
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CIArb NEWS ASIA AND AUSTRALIA EAST ASIA
President’s visit East Asia Branch Chair, CIArb Regional Trustee Tony Houghton SC C.Arb and Regional Director Camilla Godman MCIArb met Rimsky Yuen SC, Hong Kong’s Secretary for Justice, on 7 March. Many areas for collaboration were discussed. CIArb representatives then met the Hong Kong Chief Justice on 8 March. The EAB Annual Dinner was held on 9 March at the Hong Kong Club. The guest speaker was CIArb President Datuk Professor Sundra Rajoo C.Arb who spoke on the theme, ‘Old but not Obsolete: CIArb and Asia’. This all took place against the backdrop of the 13th Vis East Moot, which took place from 6-13 March. It is the sister moot of the Willem C Vis International Commercial Arbitration Moot held in Vienna. The Moot was co-sponsored by EAB and hosted by City University of Hong Kong. Earlier in the month, a Hong Kong-Shanghai-Singapore UNCITRAL Model law workshop was held in Shanghai, China, as was an Accelerated Route to Membership course. MALAYSIA
Speech on ISDS On 9-17 January the CIArb Diploma in International Arbitration was held in Kuala Lumpur. The course Co-Directors were Rashda Rana SC FCIArb and Datuk Professor Sundra Rajoo. More than 30 candidates took part. Malaysia Branch has a full schedule of talks, workshops and courses lined up, including an Introduction to International Arbitration course and an Accelerated Route to Fellowship course. Notably, a Mock Arbitration Workshop took place on 17 March in Kota Kinabalu, Sabah. This was in response to a request from the International Islamic University Malaysia. Malaysia Branch provided a series of weekly ADR lectures to its 14
Attendees at the Asia Pacific Region Branch Chairs’ meeting in Kuala Lumpur in April
students throughout April. The KLRCA International Investment Arbitration Conference took place over 10-11 March in Kuala Lumpur. The keynote speech was delivered by academic and arbitrator, Brigitte Stern. CIArb Regional Director Camilla Godman presented on ‘InvestorState Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP): the EU’s proposed Investment Court System’. The conference generated active participation from practitioners, institutions, professors and investment treaty enthusiasts from around the globe. SINGAPORE
ADR for Judges An ADR Training for ASEAN Judges course was held from 23-25 February at the Supreme Court of Singapore. The course was conducted by the Singapore Judicial College, jointly organised with CIArb, and sponsored by the Singapore Cooperation Programme and Supreme Court of Singapore. The initiative was launched under the auspices of the ASEAN Chief Justices’ Meeting Working Committee on Judicial Training and led in Singapore by CIArb Patron The Hon Chief Justice Sundaresh Menon. CIArb instructors were Datuk Professor
Sundra Rajoo, Richard Tan C.Arb, Francis Xavier SC C.Arb and Camilla Godman. The branch has been active in pathways training. A Module 1 Law of Obligations and Civil Evidence course began in March, an Accelerated Route Towards Fellowship course was held from 21-22 March and an Accelerated Route Towards Membership course from 31 March-1 April. THAILAND
New committee At the AGM in November 2015, the Thailand Branch elected a new executive committee. The committee consists of Jayavadh Bunnag C.Arb (President), Jerrold Kippen MCIArb (VicePresident), Weeraya Kippen MCIArb (Treasurer), John Frangos (Secretary), Olaf Duensing FCIArb (Membership), Gregory Zysk MCIArb (Public relations), as well as Thavisak Na Takuathung MCIArb, Dr Rungsaeng Kittayapong, Albert Chandler MCIArb, Nattaphol Chinawong ACIArb and Vanina Sucharitkul MCIArb. The branch, in cooperation with the Thailand Arbitration Center, then conducted an Introduction to International Arbitration course over 25-26 February, which was a tremendous success.
The branch has also launched its new website at
→ www.ciarbthailand.org AUSTRALIA
The role of courts On 22 March, CIArb Australia and the Federal Court of Australia jointly organised an event on ‘The Role of the Courts in International Arbitration’ in Melbourne. Chaired by The Hon Justice John Middleton, the presenters were Neil Kaplan CBE QC SBS C.Arb, Caroline Kenny QC FCIArb, Professor Jeffrey Waincymer and Julie Soars FCIArb Barrister, Mediator and Arbitrator. OTHER NEWS
Offices now open The CIArb Asia Pacific Office is now fully registered in Singapore and has opened in Maxwell Chambers. A Regional Office is also based at the Kuala Lumpur Regional Centre for Arbitration, staffed by Regional Director Camilla Godman and Business Development Manager Chalee Nai Kin. CIArb Immediate Past President Charles Bown C.Arb visited Vietnam in early March and made presentations to the Vietnam International Arbitration Centre and to the Pacific International Arbitration Centre.
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CIArb NEWS BRANCH ROUND-UP NORTH AMERICA
Resolving disputes with Asian companies On January 22, NAB held a conference in San Francisco titled ‘Resolving Disputes with Companies From Asia: What is the Best Approach?’ It was held at the University of California, Hastings College of the Law with attendees from all over the world. CIArb President Datuk Professor Sundra Rajoo C.Arb opened the substantive portion of the conference with an overview of recent developments in arbitration in Asia, including his predictions for its future direction. LONDON, UK
Two seminars London Branch held its first 2016 seminar, ‘Arbitrating Development Agreements’ on 1 February. The seminar was hosted by Hogan Lovells International LLP. The panel, chaired by Nicholas Cheffings FCIArb, Global Chair, Hogan Lovells, comprised Katharine Holland QC FCIArb of Landmark Chambers and Graham Chase C.Arb, Branch Committee member. Branch Chair Irvinder Bakshi C.Arb thanked the panel and organisers. On 1 March, the branch held a seminar entitled ‘Costs in Arbitration and ADR’. Hosted by CMS Cameron McKenna LLP, it was introduced by Guy Pendell (CMS) and chaired by Irvinder Bakshi. EAST ANGLIA, UK
Annual surgery On 4 March, the branch held its Arbitration, Adjudication and Mediation Surgery at the Hallmark Hotel in Cambridge. The surgery is held annually and the branch is very fortunate to have Tony Bingham C.Arb as its regular speaker. This year Tony was assisted by John Riches FCIArb, Matthew Davies, Dr John Keane FCIArb and Jon Nugent FCIArb.
Current and past President of CIArb, NAB Chair, speakers, moderators and organisers of the conference, held in San Francisco
The day began with an analysis by Tony Bingham of a recent case concerning ‘apparent bias’ in adjudication. Reference was made to the case Eurocom v Siemens. John Riches followed with a refresher on jurisdiction with particular reference to the revised guideline on the ‘Jurisdiction of the UK Construction Adjudicator’, as published by the Adjudication Society and CIArb. John also explored the meaning of a ‘crystallised dispute’. Matthew Davies of Blue Sky ADR presented on ‘Liquidated Damages or Penalty’ and Dr John Keane gave a talk on planning law. The event concluded with a vote of thanks by Neville Tait C.Arb. SOUTH EAST, UK
ADR legal update South East Branch held its annual ADR Legal Update on 23 February at the Holiday Inn Sutton. Victoria Russell FCIArb, Partner at Fenwick Elliott, discussed major judgments of the Technology and Construction Court on the applications made by parties to adjudication, mediation and arbitration cases. The branch then held its AGM Lecture on 12 April at Weald of Kent Grammar School in Tonbridge.
The conference also featured Teresa Cheng SC C.Arb from Hong Kong who was interviewed by Southern California Chapter Chair, Ambassador (ret) David Huebner FCIArb. NAB hosted an Introduction to International Arbitration programme on 20 February, in Montreal, Quebec, in conjunction with the McGill Journal of Dispute Resolution. It will also host an Accelerated Route to Fellowship Programme in May in Houston, Texas.
David Sears QC FCIArb and Charles Pimlott of Crown Office Chambers delivered a masterclass on ‘Payment and Payless Notices under the “New” Construction Act’. Event handouts can be found at
New York Branch course on International Commercial Arbitration. The course is designed for arbitrators, advocates, in-house counsel and others interested in international arbitration.
→ www.ciarb.org/branches/ great-britain/south-east/branch-news
WALES, UK
NEW YORK, USA
Mock mediation
LLM graduates Organised by Program Chair Richard Mattiaccio ACIArb of Squire Patton Boggs, the first event of the year, ‘International Arbitration Opportunities in New York City for LLM Graduates’, was held on April 1. The programme was designed for international LLM students currently enrolled in New York law schools. Another event, ‘Red Flag Alert: Data Security in Arbitration,’ is to be held on 3 May, hosted by Debevoise & Plimpton LLP and co-sponsored by the New York International Arbitration Centre. Organised by branch member Stephanie Cohen FCIArb, it will focus on whether the arbitration community is paying adequate attention to data security in arbitration. During the week of June 6, the branch is holding its 2nd Annual Joint Columbia Law School-CIArb
On 6 April, in conjunction with the Association of Wales & Border Counties Mediators and 3 PB Barristers, the Institute hosted a successful mock mediation at Cardiff University. The mediation scenario centred on a dispute, commercial and personal, between two folk singers from a once popular band. On 28 April, CIArb and the Chartered Institute of Building co-hosted a mock adjudication at the ATRiuM Building, University of South Wales. SOUTHERN, UK
Family disputes On 12 April, there was a talk on ‘Developments in Family Arbitration’ given by Andrew Parsons FCIArb, Barrister, Mediator and Arbitrator and Chair of the Southern Branch. • For longer versions of branch news
→ www.ciarb.org/branch-news May 2016 | THERESOLVER
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CIArb EVENTS 2ND INTERNATIONAL WOMEN’S CONFERENCE NFERENCE RENN C E The Second International Women’s Conference – an event organised jointly between CIArb and ArbitralWomen – took place on 16 March at UNESCO House in Paris. The theme was: ‘Improving the Role of Women in Dispute Resolution: Evolution or Revolution?’ In the final session, Rashda Rana SC FCIArb, President of ArbitralWomen, announced the organisation’s commitment to The Pledge and what it stands for – improving diversity in arbitral tribunals. It was signed by a number of speakers and members of the audience. The event was supported by numerous ADR organisations and institutions worldwide. For further information see → www.ciarb.org/news-views-events/events/awconf
Delegates engaged in the conference discussions
Hilary Heilbron QC of Brick Court Chambers gave the keynote address
Conference participants gathered for a group photo
President of ArbitralWomen Rashda Rana SC
Anne-Marie Blaney MCIArb, Chair of CIArb’s Irish Branch Nicolas Bourdon, a Partner at Accuracy
An Expert Panel discussed ‘Experts and lawyers: Building A Winning Combination’
Delegates took the time to network during conference breaks
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Discussions took place inside and outside the conference room on the role of women in ADR
Dialogue on the role of women in ADR took place inside and outside the conference room
Conference speakers gathered at UNESCO House
The event engaged the audience in an Oxford-style debate
Delegates came from far and wide to attend
Asoid García-Márquez of UNESCO (centre) chaired a mock arbitration
Speakers and members of the audience signed The Pledge: committing to equal opportunities for women on arbitral tribunals
ANNUAL WILLEM C VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT The 23rd Willem C Vis International Commercial Arbitration Moot took place in Austria in March. The event was used to launch CIArb’s new student membership offer, which is available to university students and those who are studying at higher educational institutions. CIArb’s student offer includes discounts on training courses and free access to professional standards, guidance and law updates. For more details visit → www.ciarb.org/membership/students
Katie Odling, Governance Secretary and Owen Brigden ACIArb, Membership Coordinator both from CIArb, signing up student members
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HOW TO…
...Update your membership profile and details
U
UPDATING YOUR CIARB PROFILE online is essential. It ensures your professional information and details are visible to users in the online members’ directory, which may be key to securing appointments. Other benefits of updating your details include always having access to the latest news alerts and invitations to branch events, of critical importance if you wish to maintain an active presence in our international network; and that our publications, The Resolver and The Journal, are sent to the correct address. Here are a few tips.
Illustration: Cameron Law
1 ⁄
After accessing the CIArb website (www.ciarb.org) click on ‘Login’ on the right-hand side of the page. You will need your email address and password. If you have forgotten your password, you can click the ‘Forgotten your password’ option.
2 ⁄
On the MyCIArb page the details that require updating regularly are on the left. These include: personal details,
professional profile, member’s profile and CPD record.
3 ⁄
Click on the ‘Member Profile’ tab on the left-hand side to select what information should be visible in the members’ directory and click the ‘Show’ button to publish. Save the details.
4 ⁄
When updating your personal details, include a link to your website and/or LinkedIn profile if you have one. Both personal and professional contact details can be updated on the MyCIArb Login page.
5 ⁄ 6 ⁄
Remember, CIArb logos can be downloaded from the membership area for your professional use.
To access electronic versions of
The Resolver and The Journal, click on the ‘Publications’ section. Click on the ‘Subscriptions’ tab to check the delivery address is correct and to opt for paperless versions.
7 ⁄ 8 ⁄
Don’t forget that information on CIArb membership level upgrades can be accessed by logging into MyCIArb.
If you are keen to promote CIArb membership throughout your network click on the ‘Membership’ tab. Then click on ‘How to join’, which can be found near the top of the page in the black strip. Copy and paste the weblink and send to your colleagues’ email addresses. A CIArb form, subscription rates and methods of payment can also be accessed under ‘How to join’.
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If further help is needed, members can call the CIArb Helpline on +44 (0)20 7421 7493 or Email webhelp@ciarb.org
MEET THE MEMBERSHIP TEAM MORE INFO CIArb’s membership fee is due for renewal on 1 January every year. For any renewal queries, please contact Membership Records Executive Lisa Mulholland on T: +44 (0)20 7421 7429.
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Neil Newman, Director of UK Branches and Membership T: 020 7421 7488 Email nnewman@ciarb.org
Nigel Joseph, Member Services Manager T: 020 7421 7490 Email njoseph@ciarb.org
Owen Brigden, Membership Coordinator T: 020 7421 7469 Email obrigden@ciarb.org
Kamal Hussain, Membership Services Executive T: 020 7421 7497 Email khussain@ciarb.org
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WHAT’S ON
ONLINE
For further information on professional training courses: → training.ciarb.org Education Team • T + 44 (0)20 7421 7439 • F + 44 (0)20 7404 4023 • E education@ciarb.org
TRAINING
May – November 2016 CIArb professional training diary Unless otherwise stated, all courses below are held in London. Introduction to ADR Now available online 12 May or 20 September or 11 November Duration: 1 day Fee: £480 A complete explanation of the main disciplines of alternative dispute resolution. Introduction to International Arbitration 23 June or 12 October Duration: 1 day Fee: £480 An introduction to the general principles of international arbitration. Module 1 (Law of Obligations and Civil Evidence) 27 September Duration: 9 months Fee: £1,320 For those wishing to gain a firm understanding of all 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. 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. Accelerated Route to Membership (International Arbitration) 16-17 August or 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) 3-4 August or 20-21 October Duration: 2 days Fee: £1,860 Specially designed for busy, legally qualified professionals. Introduction to Mediation 4 October Duration: 1 day Fee: £480 An introduction to the general principles of mediation. Module 1 (Mediation) 27,28,29,30 June, 1 July or 2,3,4,5,7 November Duration: 5 days
KEY: GENERAL ADR ARBITRATION INTERNATIONAL ARBITRATION ADJUDICATION MEDIATION
Fee: £2,400 An intensive five-day course for those who wish to become an accredited mediator. Module 2 (Mediation) 4 July or 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 3 (Mediation) 27 September See Module 1, Adjudication, for details. 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 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. 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. Accelerated Route towards Fellowship (Domestic Arbitration) 20-21 October Duration: 2 days Fee: £1,860
For those with substantial unassessed knowledge of domestic arbitration.
CIArb EVENT SPOTLIGHT
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.
9 June: CIArb AGM Followed by CIArb Roebuck Lecture The Institute’s AGM will be held at 12 Bloomsbury Square, London, WC1A 2LP on Thursday 9 June at 5.30pm. The annual accounts and other AGM papers will be available for viewing from 19 May at → www.ciarb.org/publications/annualreports-and-accounts/ To request hard copies, please email or telephone as far in advance of the meeting as possible. To attend please email the Governance Secretary no later than Friday 3 June at governancesecretary@ciarb.org The AGM is to be followed by the Roebuck lecture, this year delivered by Professor Doug Jones AO C.Arb, former President of CIArb (pictured above). The theme will be ‘Using Costs Awards to control the cost of International Commercial Arbitration’. 20 June: London Summit on Commercial Dispute Resolution in China CIArb is co-hosting this event along with the Beijing Arbitration Commission/ Beijing International Arbitration Center. It is to be held at the DoubleTree by Hilton in London Victoria. The event is based on Commercial Dispute Resolution in China: An Annual Review and Preview (2016), and is expected to serve as a gateway to grasp the nuances of recent developments in Chinese Commercial Law and to unlock the intricacies of China-related investment and trade business. Register at: → www.bjac.org.cn/registration/london.html
RECOMMENDED COURSE Diploma in International Commercial Arbitration (Parts 1 & 2) Oxford Fee: £7,200 PART 1 – Diploma Course (includes Practice and Procedure examination at a later date) Covers all the key elements of the international arbitration process. Dates: 2-10 September 2016 (nine-day residential course) PART 2 – Module 4 International Award Writing course (including assignment and examination) Provides the knowledge for writing a final, reasoned arbitration award. Date: 26 October 2016 (delivered over five months) For more information, call the Education and Training team: +44(0)20 7421 7439.
May 2016 | THERESOLVER
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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: 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 •
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