Young ICCA - CAM Seminar: Tips for Conducting a Successful Arbitration
Post Event Report
by Eva Kalnina and Michele Potestà
On 3 October 2013, an event co-organized by Young ICCA and the Milan Chamber of Arbitration took place in Milan, at the Chamber’s premises. The overall theme of the conference was “Tips for Conducting a Successful Arbitration”, and it was attended by practitioners and academics from a number of different jurisdictions.
Stefano Azzali (Secretary General of the Milan Chamber of Arbitration) opened the conference with some introductory remarks. Prof. Luca Radicati di Brozolo (Catholic University, Milan; ARBLIT – Radicati di Brozolo Sabatini) delivered the keynote address, in which he addressed various problematic issues relating to the enforcement of arbitral awards. Prof. Radicati highlighted the pivotal role of the New York Convention in the general architecture of commercial arbitration and also discussed the arbitrators’ “duty to render an enforceable award”, a concept which entails both advantages and possible drawbacks.
The first panel, moderated by Eva Kalnina (Lévy Kaufmann-Kohler, Geneva) discussed the initial steps in an arbitration proceeding and the importance of getting off on the right foot. Michael Mcilwrath (GE Oil & Gas) provided a valuable practitioner’s perspective on the difference between “drafting” and “negotiating” dispute resolution clauses and warned against risks from being creative in the process. He also underlined that it was in the negotiation of dispute clauses that litigators added value and gave a number of practical tips for preparing a negotiation. In his presentation, David Roney (Sidley Austin, Geneva) set out six rules for persuasive submissions in international arbitration, and emphasized the importance of persuading the arbitral tribunal that one’s theory of the caseis not only the correct one, but also the one that accords with justice. Finally, Hussein Haeri (Eversheds, Paris) discussed the mechanics of arbitrator appointment and examined the most recent jurisprudence with respect to arbitrator challenges. He also provided insights on the controversial topic of arbitrator interviews.
After a coffee break, made possible thanks to the generous support of ASLA (Associazione Studi Legali Associati), the second panel addressed the issue of the significance of the New York Convention in practice. The panel’s moderator Cecilia Carrara (Legance, Rome) discussed certain peculiarities of the enforcement of foreign awards in Italy, pointing to recent examples from practice. Domenico di Pietro (Freshfields, Milan) dealt with the issue of the enforcement of awards set aside in the country of origin. After introducing the relevant legal framework, in particular the importance of Article V(1)(e) of the New York Convention, he considered both the “classic cases” as well as more recent decisions that enforced an award which had been set aside at the seat of arbitration (e.g., Putrabali before the French Courts and Yukos Capital v. Rosneft before the Dutch courts). Eliana Tornese (ICC, Paris) focused her presentation on recent case law on annulment and enforcement of ICC awards. With respect to annulment, she pointed to recent court decisions (U.S., Italy, Germany) where the scope of the public policy ground for annulment had been at issue. She also discussed recent cases in enforcement proceedings which had taken a rather formalistic approach, requiring, for example, that the award be signed at the seat of arbitration and initialized on each and every page. The third speaker, Michele Potestà (Lévy Kaufmann-Kohler, Geneva), discussed the difficulties that parties face at the enforcement stage. He addressed recent developments in the field of investment arbitration, where investment treaty tribunals have entertained claims relating to domestic courts’ misconduct in relation to commercial arbitration proceedings. This possibility provides aggrieved parties with further avenues for relief but also challenges the general arbitration framework.
The conference was closed by the presentation of the forthcoming Italian version of the “ICCA Guide to the Interpretation of the New York Convention” (Italian translation by Michele Potestà and Anna Biasiolo (Bonelli Erede Pappalardo, Milan), with the collaboration of Benedetta Coppo (Milan Chamber of Arbitration)). The Italian translation of the ICCA Guide is the latest addition to the ICCA Guide series, which now includes versions in Burmese, Chinese, Georgian, French, Indonesian, Portuguese, Russian, and Spanish.
Young ICCA extends its thanks to Benedetta Coppo and Carlo Riccardi from the Milan Chamber of Arbitration for their extensive support with the organization of the event.