Arbitral Insights

Reed Smith
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Arbitral Insights

Arbitral Insights brings you informative and insightful commentary on current issues in international arbitration and the changing world of conflict resolution. The podcast series offers trends, developments, challenges and topics of interest from Reed Smith disputes lawyers who handle arbitrations around the world.

  1. 3D AGO

    Inside Cambodia's international arbitration scene: Enforcement, challenges, and trends

    Discover the key features of Cambodia's arbitration regime with Joyce Fong and guest speaker Guillaume Massin from DFDL. This episode delves into the practicalities of Cambodia-related arbitrations, including the role of Cambodian courts in supporting arbitral proceedings, the process for enforcing foreign awards, and the most common grounds for challenge. Tune in to hear about the latest trends shaping Cambodia-related arbitrations, along with practical advice for practitioners navigating this dynamic jurisdiction.

    21 min

  2. JUN 5

    Navigating international arbitration in Bangladesh

    Shahwar Jamal Nizam, Partner and Managing Director at DFDL Bangladesh, joins Joyce Fong to provide insight on the arbitration regime in Bangladesh. This episode delves into the availability and enforcement of interim measures in support of arbitration, the procedural steps for enforcing foreign arbitral awards, and the judiciary’s increasingly pro-arbitration approach. Shahwar also examines common grounds for challenging enforcement, providing practical examples and advice for parties navigating the Bangladeshi arbitration landscape, supported by illustrative case studies from recent practice. ----more---- Transcript: Intro: Welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.  Joyce: Welcome to the latest edition of our Arbitral Insights podcast series. I am delighted to have Shahwar Nizam as our guest today. Good afternoon, Shahwar. It's a pleasure to be chatting with you this afternoon. Shahwar: Good afternoon, Joyce. The pleasure is all mine. Thanks for inviting me on this series of podcasts. Joyce: For the benefit of our listeners, Shahwar is the Managing Director of DFDL Bangladesh. He is qualified in Bangladesh, England, Wales, and has substantial experience in the energy and infrastructure industries. So while to kick us off, let's perhaps briefly discuss the arbitration landscape in Bangladesh. I believe that Bangladesh is a signatory to the New York Convention. How does the legal framework support the enforcement of foreign arbitral awards in Bangladesh? Shahwar: So the Bangladesh arbitration landscape is based on the Bangladesh Arbitration Act 2001. And that act is actually based on the UNCITRAL model laws. Bangladesh is a part of the New York Convention, and as part of that, these laws were brought about. So the laws are pretty internationally sort of standardized and quite well drafted. And the implementation of it has also evolved for the betterment of arbitration awards enforcement in Bangladesh over the years. It's basically something that is gaining more and more popularity and it's becoming more and more acceptable. Joyce: Thank you Shahwar, that's really positive to hear. Based on your experience, what are the most common seats for the Foreign Awards which you are seeing coming to be enforced and recognized in Bangladesh? Shahwar: So the most common seat for across the board is actually SISC. Because of the proximity of Singapore and because of the fact that SISC has actually done a lot of outreach programs in Bangladesh, it is commonly perceived to be sort of more usable, user-friendly. So Singapore has done a pretty good job in sort of showcasing itself as a neutral venue. From a cost perspective it's uh you know it's closer to bangladesh than say London or anywhere else and now i mean it's more difficult to get to Hong Kong than Singapore so you know SISC has taken the pole position in terms of the popularity of all the arbitration venues but having said that for a lot of the government contracts we see exit arbitrations you have the trade association arbitrations as well you know like the London Sugar Association for shipping we see a lot of LMA arbitration. We see for cotton and textiles, we see the Liverpool Cotton Association arbitrations. We see the Phosphor arbitrations as well. And also in any event, HKAIC, the Hong Kong Arbitration Centre, historically has been quite prominent as well. So we still see some of that, especially with Chinese parties on the other side. And also ICC Paris, ICC London. I mean, all of these are quite sort of prominent for arbitration need involving Bangladesh. Joyce: All right, that's really interesting. Well, let's now turn to enforcement. As you know, it's common for arbitral tribunals to issue interim awards and orders, for example, to preserve assets and evidence. Are such awards and orders enforceable in Bangladesh under the New York Convention? Shahwar: Yes, they are directly enforceable. By directly enforceable, I mean an arbitration award from a foreign arbitration, as long as it falls under the scope of the Arbitration Act as an international arbitration award, it is given the same legal status as a decree of a court in Bangladesh. So just like enforcement of any decree of a court in Bangladesh, the arbitration award can also be enforced through the courts in Bangladesh. And there are specific courts through which the arbitration awards are sort of enforced. So, you know, there are certain procedural aspects that you have to qualify for in sort of enforcement. But once you go through and file the enforcement proceedings, the arbitration awards can be enforced through those. Joyce: Okay. On a related note, can Bangladeshi courts issue orders such as injunctions or asset preservation orders in support of foreign seated arbitrations? Shahwar: Yes. So for foreign seated arbitrations, while arbitrations are initiated or ongoing, parties in Bangladesh can apply for interim orders, directions, asset preservation orders, or all of those things under a special provision called Section 7A of the Arbitration Act 2001. That gives quite wide discretionary powers to the court, to the high court, to consider applications in support of the arbitration that is taking place outside Bangladesh. And also, if there is an interim order made in the arbitration tribunal itself, while there is a separate section that gives the legal status of those arbitrations as if there are interim orders of the tribunal themselves, to support those directions or orders, parties can also use the Section 7A route to apply to the court to sort of give force to those orders. If they are anticipating a contempt or breach of those interim orders given by the tribunal. Joyce: It's great to hear that the Bangladeshi courts are so supportive of arbitration and the parties arbitrating. So moving on to final awards then, could you please share a brief overview of the process for seeking recognition and enforcement of foreign awards in Bangladesh? How long does this process normally take and is there a deadline for parties to enforce foreign awards in Bangladesh? Shahwar: So usually it takes two to three years. The way it works, as I mentioned, that arbitration awards treat it as if they are decree of the local courts. And the way it works is that the arbitration award has to be received in Bangladesh, you know, notarized and consularized, which means that wherever it is a foreign arbitration, the award has to be taken to the Bangladesh High Commission or the embassy of that country, get it attested by that High Commission and then sent to Bangladesh. And along with other documents submitted to the court, and then the proceedings start. And it usually takes two to three years for the enforcement to take place because Bangladesh has a lot of due process safeguards built in the civil court of civil procedure. So that's why, you know, it usually takes a bit of time. Joyce: I see. And is there a right of appeal to decision of the court to enforce or to not enforce an arbitral award? Shahwar: Yes, I mean, that's actually something that we have to face with, or that's something that creates problems and delays. I mean, while we have seen a lot of the appellate courts or the superior court judgment that gives enforcement of international arbitration awards sort of priority, or they recognize arbitration agreement and arbitration award and gives direction for enforcement, In the lower courts, as I mentioned, because there are a lot of due process safeguards built in in the court of civil procedure. Parties usually file a lot of different types of application challenging the arbitral award themselves or challenge the procedural aspects of it and all these other things that sort of create a lot of delays. But what we have seen is that ultimately the appellate courts usually are quite stern in sort of upholding the sanctity of the arbitration awards and the Arbitration Act. Joyce: And how long would an appeal process typically take? Because you mentioned earlier two to three years for recognition and enforcement. So if you add in an appeal process, how long are we looking at? Shahwar: I mean, that's like a very difficult question to answer because, as I said, you have the high court process to go through. You have the appellate division to go through. And in Bangladesh, already the courts are overburdened with cases. We don't have enough courts or enough judges to look after the cases. So, I mean, it can get dragged up to five to six years. Joyce: Okay. Okay. And just from your experience, do parties tend to fight it all the way to the end or do parties tend to settle or reach an amicable resolution of the issue before? Shahwar: I mean, we have seen both. We have seen in some instances parties going all the way, but in many instances, parties usually try to use these proceedings to settle, to negotiate. Joyce: Just going back then to the challenges which parties can make, What grounds do parties tend to rely on when trying to challenge the recognition and enforcement of foreign awards in Bangladesh? Shahwar: So the Bangladeshi Arbitration Act, as I mentioned, it's based on the UNCITRAL model law. So it has the usual sort of exceptions or grounds under which arbitration award can be challenged. What we see is that in Bangladesh, in some instances, these are interpreted very widely. For example, the public policy or the national interest, right? I mean, these are the two grounds that we see used most commonly. And in certain instances

    19 min

  3. APR 24

    Esha Kamboj's journey from private practice to public service

    Esha Kamboj, attorney-advisor for Asia-Pacific with the U.S. Department of Commerce's Commercial Law Development Program, joins Rebeca Mosquera to share her professional journey from private legal practice to her current governmental role. She discusses the motivations behind her transition, the skills and experiences that shaped her approach to international arbitration, and the evolving ADR landscape in the Asia-Pacific region. ----more---- Transcript: Intro: Welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.  Rebeca: Hello, everyone, and welcome to another episode of Arbitral Insights. Today, I'll be your host. My name is Rebeca Mosquera, and I am an attorney at Reed Smith here in New York. And today, we have the pleasure of speaking with an incredible guest who has made remarkable strides in the world of international arbitration and ADR. Joining me is Esha Kamboj, attorney-advisor for the Asia-Pacific Region Team Commercial Law Development Program of the U.S. Department of Commerce. Esha, welcome to the podcast.  Esha: Thanks so much for having me, Rebeca. Thank you for the lovely introduction. It's my pleasure to be here today.  Rebeca: Well, let's dive in into things. And to kick things off, Esha, could you share a bit about your background and how you got into international arbitration? What was your practice focus when you first started?  Esha: Yeah, of course. So my background really is in international arbitration and private practice for about seven years before moving over to the U.S. government. And how I got into international arbitration is, I think, an interesting story. I grew up in the Bay Area in California with immigrant parents from India, and I had kind of the pleasure of having a lot of family all over the world. And so each of, you know, whenever we would go on a family trip, it would be to visit a different family member in a different part of the world, whether it was in India or parts of Europe. So I really had the benefit of growing up with a very global experience in terms of meeting different types of people, learning about different cultures, foods, etc. And so I was always very much interested in kind of international policy, international law, and focused my undergrad degree in global studies. And then, you know, shortly thereafter, did the teaching assistant program in France via the French embassy. So I taught English in a high school just outside of Paris for about a year prior to going to law school. And, you know, I didn't really know too much about international arbitration before law school. There aren't a lot of lawyers in my family. But I learned a lot about it when I went to law school and had really focused my curriculum on international law. And it really stuck out to me as something that was incredibly interesting. You know, I wouldn't say a newer area of law, but definitely younger than many other practices. And really pursued firms during on-campus interviews that had dedicated international arbitration practices within the firm. So that kind of led me to Norton Rose Fulbright, where I did my summer internship as well as my first year in their New York office before I moved to Washington, D.C. And over the course of the next six or seven years, I did a lot of international arbitration, including investor state disputes, commercial arbitration, and a lot of large-scale kind of commercial litigation. So that was the private practice part of my career and how I kind of transitioned and got into international arbitration in the first place.  Rebeca: That's fascinating, Esha. I mean, you've basically grown to some of the most, maybe we call it epicenters of where, you know, international arbitration develops today. So you established yourself in private practice, right? But what inspired you to make the transition to your current role? And was there something specific that drew you from private practice or the governmental side of, you know, international arbitration and ADR?  Esha: Yeah. So, you know, as I mentioned, I've always been interested in foreign policy, specifically like public international law. But when I was at the firm, you know, I never really had much thought about transitioning into a government role. I think it really came to a head when I was in my sixth and seventh year when I was kind of a senior associate and I had to decide at that point if I wanted to pursue partnership at the firm, which would entail me starting to build my book of business, doing a lot of networking, doing a lot of training to be able to apply for that role, or if I wanted to kind of transition out of private practice and maybe try something new. I knew I've only ever been in private practice and so I didn't really have a lot of experience as to what other international arbitration adjacent jobs there could be. How I ended up at CLDP is kind of by happenstance, in fact. So while I was going through this, what should I do with my life? Should I move on to partnership in private practice or should I do something else? I was asked to actually be an expert for CLDP. So they asked me to do a short video on how to draft an International Arbitration Clause. And following that, I learned about this division, learned about the great work that they do, and was so interested in it. And that's kind of joined their office from there.  Rebeca: So it all began with an arbitration clause, basically.  Esha: Yep, it did. It sure did, as many things do.  Rebeca: Very good. I mean, that's incredible. I really like hearing that. And obviously, it's always, to me, right, it's very interesting to hear about those pivotal moments in a career. I have done many myself as well. I mean, being an immigrant myself and having worked in-house and then in private practice, I understand how sometimes those pivotal moments just come out of the blue or based on a knowledge that you had. So, you know, it's just really, they shape the person that you are. And maybe sometimes we didn't quite understood certain training or certain things that we were going through until we get to that other position. And we're like, oh, now that's very useful, what I learned back then into the current role I am. And so speaking of transitions, how would you say your practice has evolved, right, from that private practice to the governmental role, especially now with the work that you do in the government focused on ADR?  Esha: Sure. So let me give a brief background as to what my current role is and how ADR fits into that. As I said, I focus my private practice on international arbitration, representing states and the private parties and the private investors in international disputes. And what the Commercial Law Development Program really does is, and we've been around since 1992, just after the fall of the Soviet Union, and the purpose is to ameliorate or improve the commercial environment or legal environment for businesses worldwide. What that means depends on the region that you work in. So as I said, I work in the Asia-Pacific team. We focus on the Asia-Pacific region, and there are various other teams that focus on other regions. We've got the Latin America team. We've got a Middle East, North Africa team, Europe, Eurasia, Sub-Saharan Africa, et cetera. And the focus of what we're doing within each country depends on a multitude of things. One, what the country's needs are, and also what our foreign policy directives are from the State Department. Our whole point is we are a legal office that really helps with infrastructure development, specifically in the Asia-Pacific. So we are looking to really accelerate U.S. business investments in critical infrastructure in Asia and protect those investments, you know, through legal protections. So what we, and the kind of the purpose of this and why we do this in part is because there's a huge infrastructure gap all over the world and specifically in the Asia Pacific. And I'm talking critical infrastructure, port infrastructure, airports, you know, bridges, roads, et cetera. And that infrastructure gap, you know, these host governments are looking to fill very, very rapidly. And so they're seeking investment at a rapid rate. And for the last 10 years or so, the People's Republic of China, the PRC, has been very diligent about filling that investment gap. And so they've. Funneled billions and billions of dollars of financing into large-scale infrastructure projects all over the world via the Belt and Road Initiative. On our end, the U.S. government doesn't do that. We don't funnel billions of state-backed bank money into infrastructure projects in other countries. But what we do at the CLDP is we kind of make it so that private investment from U.S. Businesses can be funneled into these investment projects. And we do that by making sure that the legal landscape in the country that we're working in is conducive to attracting and protecting that investment. Often that takes the form of making sure the project finance mechanisms are in line with international best practices, you know, making sure that there's regulations like a public-private partnership law or, you know, good government contracting processes, again, that are in line with international best practices that will then attract U.S. Investment and also then ensure a return on investment for those U.S. Businesses that are investing in this infrastructure. And how arbitration kind of fits into that? Well, ADR, Alternative Dispute Resolution, is very important for these large

    26 min

  4. FEB 19

    HKIAC at 40: Reflections and future ambitions with Secretary-General Joanne Lau

    As the Hong Kong International Arbitration Centre celebrates its 40th anniversary, Reed Smith’s J.P. Duffy welcomes Secretary-General Joanne Lau to discuss the center’s major milestones, including the launch of its Beijing office and the updated 2024 rules. J.P. and Ms. Lau explore trends in the HKIAC’s caseload, its goals for the next five to 10 years, and its strategies for maintaining its leadership in dispute resolution across the Asia-Pacific Region and beyond. ----more---- Transcript: Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.  JP: Welcome back to the next episode of Arbitral Insights, in which we'll discuss recent developments at the Hong Kong International Arbitration Center with Joanne Lau, who is the HKIAC Secretary General. I'm JP Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai, where I previously practiced. I routinely represent clients in arbitrations involving China and East Asia, and I also have the good fortune to be listed on the HKIAC Arbitrator panel. With us today is Joanne Lau. Joanne is the HKIAC Secretary General and Principal Officer, which is a role she assumed just about a year ago in February 2024. Prior to becoming the HKIC Secretary General, Joanne was an international arbitration partner at Allen & Ophrey in Hong Kong, where she practiced for over a decade. Joanne brings a wealth of experience with us today and a wealth of information, and we're really lucky and grateful to have her speaking with us. So thank you, Joanne, and welcome. Joanne: Thank you for having me. JP: Great. Well, we're so glad you can join. Let me begin just by setting the table a bit and giving a bit of background information on the HKIAC. While it doesn't need any introduction because it's so well known, there may be listeners in the U.S. Or elsewhere that are less familiar, so I'll just start by giving a bit of background there. Celebrating its 40th anniversary this year, the HKIAC is an independent, not-for-profit arbitral administrator that was established in Hong Kong in 1985 by a group of leading business people to provide dispute resolution services in Asia. It provides a full range of alternative dispute resolution services, including arbitration, mediation, adjudication, and domain name dispute resolution. Joanne will discuss them in greater detail later on, but the HKIAC also has some of the most modern and innovative arbitration rules in the world, having just updated its rules last year that took effect on 1st June 2024. The HKIAC also offers state-of-the-art hearing facilities that were ranked first worldwide for location, value, IT services, and staff helpfulness. To give you an idea of how prominent the HKIAC is globally, the 2021 Queen Mary Survey, which most listeners will know, also found that the HKIAC is the third most preferred used arbitral institution globally. And in 2023, it received more than 281 arbitration cases, with a total amount in controversy of approximately $12.5 billion. Around 90% of the administered cases are international. So clearly, the HKIAC has accomplished amazing things in its first 40 years, and we're really lucky to have Joanne tell us more about it. So with that, let's turn to Joanne so we hear more from her and less from me. And let's start by talking about the HKIAC's caseload a bit. Joanne, the HKIAC is one of the most transparent arbitral organizations in the world, and it publishes detailed case statistics on its website. But I'd like to dig into those statistics a bit more for the audience's benefit. While the HKIAC administered cases involving parties from 45 jurisdictions in 2023, what were the top three jurisdictions in that year? Joanne: Sure. And I might be a bit greedy here talking about more than three jurisdictions. But just to answer your question first, in 2023, our top jurisdictions, first of all, unsurprisingly, is Hong Kong, Hong Kong parties, followed by mainland Chinese parties. Again, I think that one is unsurprising. And then at 3, 4, 5, 6, in that order, BVI, Cayman Islands, Singapore, and the United States. I would say these are pretty consistently featured in our most popular jurisdiction. So 2023 was similar to the previous several years in terms of parties who often submit cases to HKIAC. JP: Joanne, you mentioned the Cayman Islands and the BVI as some of the top five jurisdictions, I think. What's the reason for that? Joanne: For BVI and Cayman Islands, a lot of those entities from those places, they could be investment vehicles. I think quite a lot of them also have Chinese shareholders or Chinese interests, although not exclusively so. So I think that's one of the reasons why BVI and Cayman feature heavily in our caseload. JP: Got it. So it's a function of offshore Chinese investment structures that parties typically use. Is that right? Joanne: Yeah, correct. And I think another reason is to also look at the types of cases that HKIAC gets. So we do have a lot of shareholder disputes or post-M&A disputes. And especially when it comes to, as we discussed earlier, some of the China-related transactions, parties often choose to structure those through offshore vehicles. So hence, you do see BVI and Cayman entities in those transactions and consequently those disputes as well. JP: Yeah, that's really interesting. I've certainly done HKIC arbitrations that have involved that structure, which is why I asked, because I think it's a surprise sometimes to people in the U.S. To see that that is so common. Now, you mentioned as well, I think some of the other jurisdictions you mentioned were the U.S. and Singapore. Let's start with Singapore. How often do you see cases involving parties from Singapore? Joanne: Pretty regularly. And I think if you look at parties from Asia, Singapore is the active economy, large economy in Asia. So it's not surprising that we have lots of cases from Singaporean parties. The other one, I would say, you know, South Korea and Singapore might be the two most common Asian parties that we see in our cases. So yeah, we do see those pretty regularly. JP: That's really interesting, given that both jurisdictions have their own arbitral institutions or arbitral institutions that are associated with them. Is that a function typically of the counterparty to the dispute, do you find? Joanne: I would say sometimes, but not necessarily so. So we, in terms of our case law, I think around 40% of our cases would involve one mainland Chinese party. The remaining 60% don't have any mainland Chinese parties. So I think you're right that in a number of disputes with Singaporean parties or South Korean parties on one side, you might see a mainland Chinese party on the other side. And HKIAC would be a very natural choice of arbitral institution in those cases. But then we also see some cases, say, between a Singaporean party and another, say, Southeast Asian jurisdiction or between South Korean party and a party from elsewhere in the world. So there's a variety, although I think you're also right that in disputes which involve one mainland Chinese party, there may be even more reason for parties to think of Hong Kong and HKIAC. JP: Got it. Got it. Well, that's still a very strong endorsement for the HKIAC as a strong arbitral institution in the region that people would choose. That's a really interesting figure. Now, you also mentioned the U.S. being one of the top five or six parties. Is that a trend that you have seen continue in the years, or is that a trend that's increasing? What's the trend there that you're seeing? Joanne: I would say that's a pretty steady, it's a very steady observation. So US features quite consistently in our top 10 popular jurisdictions throughout the years. There are a lot of US, China investments and transactions going on. And, you know, despite some geopolitical tensions in recent years, I don't see that changing. And that I think, you know, US and China, they will continue to be very active, strong economies. So I do foresee that we'll continue to see US being in our top 10 jurisdictions. If you say whether we've seen any particular changes in parties in our cases, I would say maybe in the past two, three years, we've seen more activity from Middle East. I think that's one. The other one is we've also been seeing some cases with the Latin America connection. And again, going back to the types of cases that HKIC often handles. And by that, I mean, you know, where the Chinese investments are going. I think the reason Middle East and Latin America has come up more may also be a reflection of the fact that there are a lot of Chinese investments going to these parts of the world. JP: That's fascinating. I want to talk in a minute about what industries you're seeing there, but let me focus for just a second on, take those in pieces. Let's start with the Middle East. Are there particular jurisdictions in the Middle East from which you're seeing more cases rather than less? Joanne: UAE, yeah, we've seen, we haven't released our latest statistics yet. But to give you a teaser, I think UAE might be in our top 10 jurisdictions for 2024. JP: Okay, great, great. Yeah, I would suspect that would be the case. You know, it's been a little bit since I've lived in the UAE, but that's a

    39 min

  5. 11/26/2024

    Spotlight on ... Professor Yarik Kryvoi

    Reed Smith partner Gautam Bhattacharyya sits down with Professor Yarik Kryvoi, Senior Research Fellow in International Economic Law and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law. Yarik reflects on his career journey, highlighting the mentors who influenced his path. The duo then discuss the interplay between corruption and arbitration, the evolving role of public international law in the global legal landscape, and the intricacies of sanctions regimes and their impact on arbitration, before turning to the challenges arbitrators face when navigating these complex issues – and Yarik's love of judo. ----more---- Transcript: Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.  Gautam: Hello, everyone, and welcome back to our Spotlight On podcast series. And I'm delighted that our spotlight today is on Professor Yarik Kryvoi. Hello, Yarik.  Yarik: Hi, Gautam.  Gautam: It's really nice to see you. Yarik is a senior fellow at the British Institute of International and Comparative Law, and he's also a director at the Investment Treaty Forum and a very well-noted and well-regarded academic in the areas of public international law and associated areas. So it's a real pleasure to be doing this podcast with you, Yarik, and I look forward to our discussion. There's going to be a number of things that we're going to talk about, which I know our listeners will find very, very interesting, given your very, very interesting background and your areas of specialism. So thank you again for joining me, Yarik.  Yarik: My pleasure.  Gautam: So let me first of all ask you about your background and if you could tell our listeners a little bit about your background and what drew you to the areas of international arbitration and public law, which of course you specialize in and which you teach.  Yarik: Yes, happy to talk about that So I've been in London for around 15 years of my life, so the last 15 years. And I first came here to work as an associate at one London-based law firm And prior to that I was based in Washington, D.C. where I also worked for another law firm doing primarily international arbitration work and going back prior to that Immediately prior to that I did an LLM at Harvard Law School, and prior to that, I was based in my home country, which is Belarus. So I was born in Belarus, I grew up there, but I did my first law degree actually in Russia. And after that, I also did degrees in England, in the Netherlands, and in the United States. So my path towards international arbitration was not very straightforward, because initially I was more interested in public international law, in international labor law, so more public side of public international law, if I may say so. But then I understood that there is not that much work for people who do just purely PIL. And if you want to work with international law issues, then you need to be a bit more of a generalist and be flexible and do commercial arbitration. And at some point, I discovered the area of investor-state arbitration, which is somewhere on the border between public international law and domestic law. So you have an interaction of domestic legal systems and public international law, important public policy issues are also decided in this context. And that was intellectually challenging, and that was also something quite sophisticated and quite new at that time. Even though I was in Washington, D.C., at that time, the area of ISDS was not as well-developed and as fancy as it is today. So that was sort of my reasoning why I wanted to explore more this area. And just before joining a law firm in Washington, D.C., I did a short clerkship. I worked as an extern law clerk for a judge on the U.S. Court of Appeals for the District of Columbia Circuit, which is quite an important court in the United States because it has jurisdiction over many disputes which involve public international law issues. And sometimes you hear about annulment proceedings or Guantanamo cases or whatever. So a very important case, a very important court, and I had a chance to work on some of PIL cases also within the context of domestic courts. And now I've been in London, as I mentioned, for a few years already, for, well, soon it will be two decades, and here I combine academic work, practical work, as well as other activities. I will be happy to discuss those later today.  Gautam: Thank you very much, Yarik. Now, that's a very, very interesting background. You certainly studied in many countries. You worked in many countries. And, you know, I suppose this explains why you are so international in your outlook, in what you teach, and in your academic interests of research. And we'll come to that. And I'll certainly be following up with you on some of the points that you spoke about there, because I know they'll be of interest to our listeners, and they're certainly going to be of interest to me. So so let me ask you this next in the course of your journey so far which we've obviously ascertained is a very interesting one and a very international one who along that journey have been your biggest inspirations and who've given you your biggest guidance and your biggest mentorship to make you the person you are today,  Yarik: Yeah, it's a good question. Because I started arbitration and investor state arbitration work fairly late in my career, so after I did my first PhD, the influence of people also so when I was doing my first law degree, I was not particularly focused on one area. So it was more generally international law and domestic law. But then once my focus has become more clear, I think already when I was doing my LLM at Harvard, at that time, arbitration was not even taught there. But there were some other areas of law which were very well taught. And for example, I was quite interested in law and economics classes. And it was possible to attend joint seminars of the Department of Economics of Harvard University and Harvard Law School, where they brought together students, or mostly LLM students and PhD students from Harvard and from these two departments of Harvard. And we discussed various areas and how to use law to regulate particular issues, a variety of topics, from damages to most efficient dispute resolution mechanisms. So this way of thinking about law as an instrument to deal with real-life issues, I think that was quite inspiring. And, for example, Andrei Schleifer, professor of economics, was there. And Louis Kaplow, who is professor of law and economics at Harvard Law School. So they certainly impacted me. Then when I worked for Judge Stephen Williams in Washington, D.C., the common law approach, the approach of judges to common law issues, understanding law, interpreting law, including public international law, had also great influence on me. I remember working on one case which involved. An archive of one Jewish group, which was confiscated by Russia at the beginning of the 20th century. And then this Jewish group was trying to sue the Russian Federation to get those documents back from Russian archives, and they relied on various international law concepts. And so it was possible to see how international law works in practice and how closely it's linked with politics and with history and Judge Williams at that time and he was a great mentor, unfortunately he passed away a few years ago and then i found my first job and partners who worked there Mark Bravin for example he used to work on the with the cases on the Iran-U.S. claims tribunals in early years of this tribunal and we had a case uh representing government of Romania in Roussalis vs Romania and I was in charge of preparing arguments on counterclaims. And it was still very novel at that time. Nothing has been written on counterclaims. So I had to come up with my own arguments. And then I published the first ever article on counterclaims in investor state issue settlement. And then when I moved to London, well, London is great when it comes to human capital and the number of people who are great experts in the area, particularly when I joined the British Institute of International and comparative law. We have a great advisory board. But actually, even before I joined, when I was interviewed for my job, I was interviewed by the then director of the institute, Robert McCorquodale, but also by Johnny Vida and by Audley Sheppard. Unfortunately, Johnny Vida passed away as well a few years ago, but I still remain in contact with Audley Sheppard, with other people on the advisory board, for example, Professor Andrea Bjorklund, with Robert Volterra and others. So we regularly were in touch to discuss events, discuss projects and so i feel very privileged to be able to work with with people of this sort of expertise and reputation  Gautam: Well there's some great names there and some really big names there who you've mentioned and you know and you know no doubt been huge inspirations to you and you know and i think this is an area of law i can remember Yarik when i was a young law student many years ago, and it was many, many years ago. Of public international law wasn't really that well-known at all. And I'm thinking back to my first degree that I began in 1987, and I graduated in 1990. It really wasn't that well-known at all. And it's been amazing how over the years, it's become such a popular area, and there's so much academic research and study in these areas, and also the practice of ISDS arb

    34 min

  6. 11/20/2024

    Insights into the AAA Commercial Division with Vice President Jeff Zaino

    J.P. Duffy is joined by Jeff Zaino, vice president of the AAA-ICDR's Commercial Division, to discuss the AAA's upcoming centenary and its enduring reputation as a trusted choice for resolving commercial conflicts across industries. The conversation delves into the AAA's significant milestones and accomplishments, highlighting its commitment to innovation, including its approach to AI and the recent appointment of Bridget McCormack as president and CEO. ----more---- Transcript: Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.  J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the American Arbitration Association with Jeff Zaino, who's the vice president of the AAA's commercial division. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales in the DIFC courts in Dubai, where I previously lived and practiced. I routinely represent clients and arbitrations involving a range of issues and frequently sit as an arbitrator in commercial disputes as well. I also have the good fortune to be a member of the AAA's commercial division arbitrator roster, the ICDR panel, and I'm a member of the AAA-ICDR Life Sciences Steering Committee and a member of the ICDR Publications Committee as well. So I get to do a lot with the AAA, which is really a wonderful organization. As I mentioned, with me today is Jeff Zaino, who's the vice president of the commercial division of the AAA in New York. He oversees administration of the large, complex commercial caseload, user outreach, and panel of commercial neutrals in New York. He joined the association in 1990, and Mr. Zaino is dedicated to promoting ADR methods and services. He's also written and published extensively on the topics of electronic reform and ADR, including several podcasts with the ABA, talks on law, and corporate counsel business. And he's appeared on CNN, MSNBC, and Bloomberg to discuss national election reform efforts and the Help America Vote Act. He was deemed a 2018 Alternative Dispute Resolution Champion by the National Law Journal and received awards for his ADR work from the National Academy of Arbitrators, Region 2 and Long Island Labor and Employment Relations Association. In 2022, Jeff received the Alicott Lieber Younger Committee of the Year Award for the New York State Bar Association Commercial and Federal Litigation Section. And in 2023, the Chairman's Award, NYSBA Dispute Resolution Section. So as you can tell, Jeff is a highly experienced, highly lauded arbitration expert, but we're really lucky to have his valuable insights today. So before we begin with some of the substance, let me just give a little bit of background on the AAA and the commercial division so that those that are less familiar have a little bit of information about what we're going to discuss today. The AAA is a non-profit alternative dispute resolution service provider headquartered in New York that administers arbitrations, mediations, and other forms of dispute resolution, such as ombudsperson and dispute avoidance training. It was founded in 1926 to provide an alternative to civil court proceedings, and that makes the AAA one of the oldest arbitral institutions in the world, as well as one of the largest, having administered over 11,553 business-to-business cases in 2023 alone, with a total value of over $19.1 billion. So that should give you a pretty good idea of the scope of what the AAA does. Notably, the AAA has several divisions that offer users substantial subject matter expertise. For instance, the commercial division, which Jeff heads, specializes in business-to-business disputes of all sizes, but has a particular expertise with large complex cases across a variety of industries, including accounting, communications, energy, entertainment, financial services, franchise, hospitality, insurance and reinsurance, life sciences, sports, and technology. There are also separate AAA divisions that focus exclusively on construction issues, consumer disputes, employment matters, government issues, healthcare, and labor disputes. Lastly, as many of our listeners will know, the AAA has a well-known international division, the International Center for Dispute Resolution, or what's colloquially known as the ICDR, that focuses on disputes that have an international component. Before we get into some of our recent developments, Jeff, if you could tell us a bit about what makes the AAA different than other arbitral administrators, I'm sure our audience would love to hear that.  Jeff: Sure. Hey, thanks so much, J.P., for having me today, and thanks for the kind words at the beginning. It's great to be here today. Well, you mentioned it. The AAA is the largest and oldest ADR provider in the world. We have over 700 staff worldwide and 28 offices, including one in Singapore. And we have a huge panel, and you're on that panel. We have 6,000 arbitrators on our panel, and we consider them experts in the industry. And we're really proud of our panel. And like you mentioned, we're hitting our 100th anniversary in 2026. And since then, when I started, I started in the 90s, like you mentioned, 1990. From 1926, when we were founded, to 1990, we did a million cases, one million cases. And then, since then, from 1990 until now, 2024, we hit 8 million, 8 million cases. So it's growing. And I feel that's because of AAA, AAA-ICDR. Again, we've been around for almost 100 years, and we keep on growing. And I feel that we took the A out of ADR. I mean, everyone says alternative dispute resolution, but I really think now it's, and you'll probably agree with me, J.P., that it's dispute resolution. It's something in our toolbox and it's not alternative any longer. And then another thing about us, a huge difference about AAA-ICDR is we're not for profit. That makes us unique in this space. Profit-based companies are a little bit different than what we are. We're not criticizing them, but we're unique in the sense that we work directly for the parties, not for the arbitrators.  J.P.: That's a really interesting stat, Jeff. Let me unpack some of that because I think, first off, if I understood that correctly, you said up until 1990, there were 1 million cases administered. Is that right?  Jeff: That's correct. We did 1 million cases from our founding, 1926, a year after the Federal Arbitration Act in 1925. So we did 1 million when I came on board in 1990. And then from 1990 until now, we've done a total of 8 million. So we doubled that, or tripled it. It's been amazing how the growth that we've seen. And also during a pandemic, we saw a huge growth at AAA-ICDR.  J.P.: And Jeff, one thing that I think you're obviously very involved with the New York State Bar, and I've done quite a bit with the New York State Bar myself over the years. One thing that I noticed, and you just reminded me of this, was an uptick in submission agreements during the pandemic, by which I mean parties taking existing disputes for which there was no arbitration clause, drafting an arbitration clause for it to submit it and move it into arbitration. And I think some of that was a function of the recognition that disputes would founder if the courts were closed and that parties needed things done. Did you see that kind of growth during the pandemic of submission agreements as well?  Jeff: Absolutely. The courts were shut down, like you mentioned, for three to four months worldwide. And the ADR providers, like the AAA-ICDR, did not shut down. And we did have submissions, more submissions than we've ever seen. And usually it's only about, I would say, 2%, 3% of our caseload is submissions, but we saw the court systems. And I had, personally, I had over a billion dollar case, a bankruptcy case that came to us from Texas and it was mediated. We had two mediators, one in Connecticut and one in Texas. We had six parties, 40 people showed up on the Zoom, J.P., it was amazing. And that was a submission to AAA through the court system. The judge talked to the parties and said, listen, we're shut down. This is an important matter. Why don't you go to AAA? And so, yes, we did see submissions during the pandemic. I'm not sure if that's going to continue on. Most of our disputes are features of contract, as you know.  J.P.: Yeah. I mean, that's always going to be the case in arbitration, right? That the vast majority of cases will be subject to a pre-dispute arbitration clause. But I think it's really interesting when you see submission agreements like that, because I think it's a clear recognition that one, arbitration is a really valuable tool. And two, it's a real plus for the AAA and a real nod of confidence that those are submitted to AAA because that's parties taking something they know has to be figured out and saying, all right, AAA is the guy to do. I wanted to pick up, too, on that exponential growth of 8 million cases between 1990 and the present versus 1 million over the first, you know, what is that, 70-something years or 60-plus years?  Jeff: 60-plus years, absolutely, yeah. J.P.: Are there particular industries that you've seen significant growth in since the 1990 period that you were discussing, like between 1990 and the present? Are there particular industries that you are seeing more growth in or that you think there could be m

    36 min

  7. 11/14/2024

    Navigating construction disputes in the energy sector: Insights from Mehak Oberoi

    Mehak Oberoi, Legal Head/General Counsel for GE Vernova, Hydro Power, joins Niyati Ahuja to discuss the importance of lawyers understanding business needs and the intricacies of construction disputes, emphasizing the importance of claim avoidance and the challenge of finding the right arbitrators for a case. The conversation covers top tips for minimizing risks during the construction phase, including detailed briefings and early involvement of project managers, before discussing the impact of technology on dispute resolution. ----more---- Transcript: Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.  Niyati: Welcome to today's episode of our Arbitral Insights podcast. I am Niyati Ahuja, a senior associate in the International Arbitration and Global Commercial Disputes Group in Reed Smith New York. I'm duly qualified in New York and India. My work involves both commercial and investor state arbitration, white collar investigations and litigation proceedings in New York. I'm delighted to have Mehak Oberoi with us today. Mehak is currently the legal head and general counsel for General Electrics for NOVA in Asia Hydropower, APAC. She has over 17 years of experience during which he has helped businesses develop and implement legal strategies for the renewables business on a wide array of legal issues facilitating seamless business operations and commercial transactions, deal negotiations, and offering critical legal insights to the board, ensuring an alignment with organizational objectives and compliance. Welcome, Mehek. We'll start very quickly with learning more about your career path. Could you just spend a few minutes telling us about what your career has looked like so far? Mehak: So I finished law school in 2008. I worked with a couple of law firms in India for about seven years. And that's when I moved to General Electric. And I hopped around various businesses of GE. So I've seen a lot of businesses being bought and sold and acquired. So all of that. And now for the last five years have been with the renewable piece of GE. Niyati: That's very interesting. Thank you. One thing that I love to ask and understand about is who has been your inspiration in your personal or professional life or somebody like a mentor? Who would you think is that one person or two or three, as you wish? Mehak: So I'm actually a first generation lawyer so I wouldn't I mean as far as my field is concerned I don't think I really have a role model from my within my family but when I was in third year law college I interned with Pepsi and at that time the the VP of legal was Mr. V.R Shankar. So I think he is the one who really started grooming me and helped me understand that this is something that I would possibly like to do. So yeah, so he was, I think, my first mentor. Then I think once I moved into GE, I had a couple of them over here because in-house legal work was very new to me. I think for all people who work in a law firm would understand that work in a law firm versus work in-house is very different the way the way it is structured whether it's process or just general day-to-day work is very different so I think I needed some hand holding in the beginning so I had some good people at that time also to help me out. Niyati: Well that's that's really nice to hear that there were people helping because it's sometimes hard to find just people who help you when you need hand holding so that's that's nice to hear. Mehak, can you tell us a little bit more about so you said you started with law firm working at law firms so what pushed you or what made you choose to move in-house because you have been in-house for several years now so what made you think oh yeah maybe I want to as you mentioned there's a difference what made you think maybe I could do in-house? Mehak: The very honest answer, I think life took me on that path because I just had my first daughter. I couldn't manage the commute because I stay in a particular place and my office was about an hour and a half one way. So I used to not see my daughter in the morning. She was sleeping when I used to leave and she was asleep again by the time I used to come back. So I decided I had to shift my job closer to home. and at that time when I took it on I think there were there was this myth that you know it'll be probably a slightly more relaxed and time effective job to have in terms of raising children. So that's how I took it on and very frankly at that time also it was very difficult for me to make the switch because I don't know I was stuck in that phase in terms of not having too much to be a legal head but having you know I was stuck somewhere in the middle so when I got GE actually I really really took a leap of faith because the person who interviewed me actually told me that I'm overqualified for the job I know it's it's really it's really like that because you know you will be shocked if you even hear what I was actually doing I was reviewing non-disclosure agreements globally for oil and gas business that's all that i was hired to do after seven years of experience so I was told but I was so yeah so I was so desperate to get that job I said no I will do it and maybe somewhere I think I had that faith that I'll be able to climb up the ladder and I think three months in I grabbed on the role to start reviewing their global sourcing agreements as well and slowly I climbed the ladder and, nine years later, here I am, but it was a true leap of faith. Niyati: That's been a very successful leap of faith, I will tell you that. It's also inspiring to hear that you were hired first to do something so basic and you're doing such an excellent job now. Well, that is very inspiring. So what is one thing, and this is actually feedback for people like me who are working inside law firms. What is one thing that you wish outside counsel did that they don't currently do? So is there like any feedback or like have you seen in your experience that you wish, oh, this law firm that I'm working with or I worked with at some point, I wish they did something differently? Mehak: So I think what typically happens is that law firms work in a slightly more theoretical manner. And I don't think it's any fault of theirs. It's just that they're not so in tune with the business needs as I would be as a company counsel. So I think possibly they need to walk a couple of miles more and try to show a little more interest in the business perspective of things. And when I say business perspective, the first ground rule is to try to understand what the business is. What do they really do? If there's a construction dispute, for example, I need the law firm to be able to show me interest as to what that project really was. How was it constructed? Why is there a dispute? You know, so maybe slight engineering nuances, which even I'm not really comfortable with. There's a lot of technical jargon, just some interest to be able to appreciate the nuances. And I think that helps them become better lawyers also, because then they can help me make those commercial calls which are compliant legally. Niyati: Yeah, no, I completely, completely agree with that. In my experience, I try to understand what their business objective is, especially as a dispute resolution counsel. The business goal is not to get into a dispute. It is to avoid a dispute. So if we can catch it at an earlier stage or try to find an amicable resolution, I think all clients appreciate that because they want to keep functioning. They don't want to get into a dispute and get busy with that dispute. So I completely understand what you're saying. And I think I agree with you that it's not for a fault of law firms that they sometimes don't get into what the business goals are or what the business is actually doing, because they're handling several clients at the same time. So maybe they are not as in tune with the business goals as an in-house counsel. But that's why it's really, really important to have open communication channels between the in-house counsel as well as the law firm. So that's a really good point. Mehak: And I think it's also a perspective that for a law firm, you have thousands of clients, clientele. My only client is my company. So I'm watching out for one single interest, whereas you're looking out for multiple. So I guess that also creates that shift of focus. Niyati: Yeah, no, I completely understand. And as you said, your one client is the company that you're working for. Can you share what your day-to-day looks like? Because a lot of people on the outside are curious, what does an in-house counsel really do? Can you share just like what? Because you do a lot of things. I'm sure like the stresses that you deal with are very different from somebody at a law firm. So I'd love to know like what does your day-to-day look like? Mehak: Oh, chaotic. I think that's the best way to describe it. I think the moment you open your eyes, the first thing is that you check your phone and you just need to know that no bomb has exploded overnight. And that could be, you know, it could be an injury on site. It could be a flood on a site. It could be an accident. It could be some criminal complaint that has been filed. And so, you know, or your bank guarantee has gotten invoked. So all of those kind of things you're kind of watching out for something not happen overnight. Plus, I work with different time zones. So a lot of the times that urgent factor comes in overnight when I'm just about

    32 min

  8. 11/06/2024

    ICDR’s strategic vision for Asia

    J.P. Duffy welcomes Luis Martinez, vice president of the ICDR, and Thara Gopalan, director of arbitration and ADR for the Asia-Pacific region, to discuss the organization and its strategic plans for expansion in Asia. Together, they explore the ICDR’s role in the global arbitration landscape, the opportunities and challenges that lie ahead in this dynamic region, and the potential impact of these developments on the global arbitration community. ----more---- Transcript: Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights, and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.  J.P.: Welcome back to the next episode of Arbitral Insights, in which we will discuss the ICDR and its Asia initiatives with Luis Martinez and Thara Gopalan, who are both vice presidents of the International Center for Dispute Resolution, or ICDR. I'm J.P. Duffy. I'm an international arbitration partner with Reed Smith, based in New York, that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai where I previously practiced. I also have the good fortune to be listed on the ICDR arbitrator roster and to regularly sit as an arbitrator in ICDR Matters, as well as acting as counsel in arbitration governed by the ICDR rules. We're very fortunate to have with us today a repeat guest, Luis Martinez. Luis is the vice president for the ICDR, which is the international division of the American Arbitration Association. Luis is responsible for their business development covering the East Coast of the United States, Latin America, the Caribbean, the EU, and the UK. He's co-chair of the ABA's International Arbitration Committee and an honorary president of the Inter-American Commercial Arbitration Commission. He's admitted to practice in New York and New Jersey and is a dual citizen of Spain and the United States. And our third guest today is Thara Gopalan. Thara leads the ICDR in Asia and is based in the organization's Asian headquarters in Singapore. Thara brings extensive experience in commercial disputes to the table. Prior to joining the ICDR, she was a commercial disputes attorney, representing clients in international arbitrations and at all levels of the Singapore courts. Her expertise spans a wide range of industries, and she has a proven track record of successfully navigating complex legal issues, including high stakes to bet the company disputes. So as you can see, we have excellent guests today, and Luis and Thara will be able to tell us not just about the ICDR's ongoing initiatives around the world, but in Asia in particular. So we're really looking forward to hearing their insights. Let me just set the table a bit by talking for a moment about the ICDR for those that aren't as familiar with it. The ICDR was established in 1996 and is the international division of the AAA, which was itself founded in 1926. The ICDR provides dispute resolution services to businesses and organizations around the world in cross-border matters and administers all arbitrations filed with the AAA that have an international component. While it's based in New York, the ICDR has offices in Houston, Miami, Chicago, Los Angeles, and Singapore. And it also maintains a separate group called ICDR Canada for Canadian disputes. The ICDR has some of the most modern rules in the world, which it last revised in 2021. And you can learn more about those innovations in a podcast I recorded with Luis in April 2021 that's available on iTunes, PodBean, and the Reed Smith website. Now, to give you a sense of the scope of the ICDR's caseload, it administered 848 new claims in 2023 with an amount in controversy of 5 billion. So as you can see, they're one of the largest and most active arbitral administrators in the world. And we're really fortunate to have Luis and Thara here today to talk about that. Now, let's jump right in on that caseload and those caseload statistics for a minute. Luis, of the 848 new cases filed in 2023, what were the top three industries represented?  Luis: Well, thanks, J.P. And it's a real pleasure to join you again on this podcast series and to be here with my colleague from our Asia Case Management Center. To touch base, our statistics are available on our infographics, which we do put one together each year to give some summaries and highlights of our particular caseload. You can find them on our website at icdr.org. But the top three caseloads came in using international arbitration, the ICDR system in the technology sector, the international construction sector, and international financial services. Those are the top three groupings we saw last year in 2023.  J.P.: Now, Luis, that's interesting to me. I think the third category you mentioned was international financial services. Can you expand on that a bit? Because that's an area that I think is underrepresented in most institutions in the international arbitration space.  Luis: Sure. They cover a range of different subtypes in the financial sector. There could be cases involving the financing of infrastructure projects. There could be cases involving financial documents in M&A agreements or shareholder agreements. It is an interesting cross-section, and it is an area that we are focusing on, not only in the international sector, but also working with our colleagues in the domestic divisions. So I think that with the construction and the technology caseloads are areas of focus for us.  J.P.: That's great to hear. Now, Luis, tell me a bit more, too, about the technology sector and the types of cases you're seeing there.  Luis: Sure. And that has been an expanding caseload for us in the last several years. The largest subtypes of these cases, they include, for example, software system developments. We have cases in related to that with partnership and joint ventures. You could have subcontracting agreements with independent contractors and, of course, licensing disputes. An interesting fact that goes with that is that over two-thirds of these technology cases, they actually settle prior to an award hearing and 28% prior to incurring any arbitrator compensation at all. As you know, we do a great deal at the outset to try to explore any procedural efficiencies. As we covered in the rules, the mediation step is actually obligatory with us unless the parties opt out. We will be amenable, of course, especially if the case falls within the appropriate range, use the expedited rules. So whatever the institution can do to bring the parties together and try to get these things settled at the earliest possible step is something that we try to explore.  J.P.: That's really interesting. And I guess it's unsurprising to me that the technology sector would be so highly represented in the case statistics, because we really are seeing a lot more cross-border technology transactions, both in software, hardware. I mean, I think all the different facets of the technology sector, which is really, really broad. So that's pretty interesting. What are some of the other industries, Luis, that you're seeing cases come from?  Luis: The other top leaders that use our rules are the real estate. We have entertainment cases. We actually are the administrators for the International Film and Television Alliance that also has opted to use our rules. Insurance, energy is very important. We have subgroups, by the way, that we've created joint teams internally, combining international and our commercial colleagues to focus on various sectors. So energy, construction, life sciences, financial services are all areas where we're pooling our resources and studying the market and seeing how best to position our domestic and international services. Energy is very important. And I think, you know, the subtopic of that, of course, obviously the upstream and downstream types of disputes, but certainly the ESG-related claims that we're going to be seeing and we're forecasting that that's going to be on the rise, Cases brought to mandate perhaps climate change-related policy or conduct. Cases brought to seek financial redress for damages associated with climate change, etc. And I think the energy sector is going to see a surge on that and probably some other sectors too because it's not limited only to the energy sector.  J.P.: That's really interesting. And just to circle back on one of the earlier industries you mentioned, it's kind of fascinating to me. I've had the opportunity to sit as an arbitrator and to act as counsel in a few entertainment cases. And that's a sector globally that I think gets overlooked on occasion. People tend to not realize how broad that industry is and how much cross-border activity there is in that industry. So pretty fascinating.  Luis: It also plays a large part in our history. I mean, as you mentioned, the ICDR was started in ’96, but going far back as 1927, we had a foreign division. And in the 50s, we also worked with the motion picture industry, which really helped us establish offices throughout the country because they wanted to have local offices in many locations where they have theaters. And that really led to our national infrastructure to provide ADR services in the United States.  J.P.: Interesting. I was not aware of that history, but that makes an awful lot of sense. Now, let's turn to Thara for a minute, just to sort of talk about that caseload as well. Thara, how many of those cases had an Asian component to them?

    31 min
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About

Arbitral Insights brings you informative and insightful commentary on current issues in international arbitration and the changing world of conflict resolution. The podcast series offers trends, developments, challenges and topics of interest from Reed Smith disputes lawyers who handle arbitrations around the world.

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  • Years Active
    2020 - 2025
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