Young ICCA Webinars: Supercharge your Arbitration Research and Arbitrator Due Diligence – expert strategies and practical tips

Post Event Report

Written by Chavah Apfelbaum (Associate, Asserson Law Offices)

On 16 March 2023, Young ICCA together with Kluwer Law International hosted a webinar titled “Supercharge your Arbitration Research and Arbitrator Due Diligence – expert strategies and practical tips”. The objective of the webinar was to provide practical tips and expert strategies on conducting efficient legal research in a leading international arbitration database Kluwer Arbitration.

Young ICCA Co-Chair, Shirin Gurdova opened the webinar by giving a brief welcome to the participants and explaining the objectives of the webinar. She then introduced Saemee Kim, Partner at Lee & Ko, and current Young ICCA Events Co-director as moderator of the panel.

Saemee spoke briefly on the importance of improving legal research skills, particularly in the context of legal research in international arbitration, and introduced the speakers. The panel was composed of Lisa Dubot, Global Professional Support Lawyer for Mayer Brown's International Arbitration Practice and Vincent Verschoor, Resident Arbitration Content Expert with Kluwer Law International.

In the first part of the webinar, Lisa Dubot gave a presentation on expert strategies and practical tips for arbitration research and arbitrator due diligence.

Arbitration Research

Lisa began by setting out 15 key tips and strategies for arbitration research as follows, encompassing (a) identification of appropriate research materials; (b) efficient and cost-effective use of research materials; and (c) appropriate application and expression of findings.

1. Know the importance of the research: Conclusions reached in research can influence case strategy

2. Adopt a broad mindset: Legal Research for international arbitration will be different to doing domestic legal research as there are multiple sources of law in play and a wider variety of resources. There is often no clear answer in international arbitration, and a plethora of resources to consult. It may be necessary to piece together the best answer using your legal analytical skills.

3. Understand the various sources of law/legal authority. Lisa’s recommended list of authorities to consult are as follows:

• International Conventions and Treaties E.g. New York Convention and ICSID Convention.
• National laws applicable to the case/issues
• Relevant Arbitration Rules (institutional/ad hoc)
• The Arbitration Agreement forming the basis for the proceedings.
• Procedural orders and interim awards within the dispute (if any)
• Arbitral awards
• Case law (may be binding where there is an issue governed by common law)
• Scholarly work (treatises, books, peer-reviewed journal articles, empirical studies etc.). Reputable sources are regularly cited in submissions.
• International arbitration practice (soft law instruments) e.g.  IBA guidelines, protocols and standards of practice

Resources 3.1-3.4 are a priority. The remainder should be considered in order of priority in light of the facts of the case. Resources 3.6 to 3.9 will generally be persuasive sources only.

4. Define the parameters of your research: before diving in, ensure that you understand the scope of your research question and the relevant background to the matter.

5. Assess what you know about the topic: if background is needed, try Jus Mundi Wiki Notes, PLC Articles or Kluwer’s “Practical Insights by topics” for an outline of the broader topic

6. Consider the intended audience and ultimate purpose of your research: is the research for a client? For counsel? Is it an internal memo? The purpose of the research will dictate the appropriate content, tone, and style of presentation of the research note.

7. Agree presentation format and timing (at the outset): ensure you understand the level of detail  expected (full research memo with citations vs quick bullet point reply) and the duration of time you should dedicate to the question. 

8. Strategically select the most relevant resources: determine whether primary or secondary sources are most important as it will dictate which resource(s) you start with and don’t forget print resources too (not everything exists in electronic format).  By way of example, the ICCA Compare Jurisdictions Tool and New York Convention Tool are excellent for comparing issues across jurisdictions.

9. Mindset and strategy #2: Take a broad approach and set out all possible scenarios. For example, jf the issue you are researching is impacted by the law governing the arbitration agreement, then be sure to set out the position under all possible laws that might apply (this assumes the parties have not expressly picked the law of the arbitration agreement).  Consider, for example, the counter position, and flag any risks.

10. Take a broad approach to search terms: consider all possible terms to capture relevant material (including foreign language terms). E.g. in researching “early determination”, it would also be worth applying the terms: “summary disposal”; “summary procedure”; “summary disposition”; “dispositive motion”; and “summary dismissal”.  

11. Case law research considerations: locate any persuasive authorities which yield a conclusion helpful to your case and present these first. Note that cases based in a similar legal system may be more persuasive. Flag any unhelpful cases for risk management.  

12. Track your research: track in writing where and what you’ve researched and how useful each search was. This is both critical for accountability and helpful in identifying any gaps in research.

13. Can’t find something on point? So long as you have devoted sufficient time to the task and taken a sophisticated approach, don’t be disappointed. It happens. Try to find plausible points and piece them together into a persuasive argument.

14. What’s next? If may be helpful to set up legal alerts from e.g.  Lexology and GAR so that you can stay up to date on the relevant issues and alert team members on your case of any updates which may affect the case. Blogs like Kluwer Arbitration Blog, Jus Mundi’s Blog and the Young-OGEMID discussion forum can also be really useful in this regard.

15. Regular training on your electronic resources: refresh your understanding of how the databases operate to remain as efficient and effective as possible when conducting legal research.  

Arbitrator Due Diligence

In the second part of her presentation, Lisa explored various tools to streamline arbitral due diligence. Selecting an arbitrator, Lisa explained, is one of the most important decisions in a party-nominated case, and a key part of case strategy. The goal is to identify someone that will be neutral and impartial who has accepted legal arguments in line with those than you plan to advance on behalf of your client. This involves careful scrutiny of arbitrators’ past awards, and anything they have written “off the tribunal” in journals, textbooks or blogs.

Where to find prospective candidates? External resources such as Kluwer Arbitration – Profile Navigator, Jus Connect (Jus Mundi), Arbitrator Intelligence, GAR Arbitrator Research Tool (GAR-ART) and IAReporter.com – Arbitrator Profiles are helpful tools for identifying a multitude of arbitrators without needing to visit an equally large number of websites. Lisa advised that if you don’t have access to these databases, institutions’ websites and other online directories are invaluable. These include ICSID’s Arbitrator Database, Energy Arbitrators List, Mute Off Thursdays’ Global Guide to Women Arbitrators, African Arbitration Association’s Directory and NAMWOLF Arbitrators & Mediators Directory.

How to identify an appropriate arbitrator? Lisa noted that it is important to prepare a list of arbitrator requirements before beginning research. These requirements could be derived from the arbitration agreement, law of the seat or the arbitration rules and will be case-specific. You will usually need to  consider nationality, language, applicable law, and expertise in a particular industry and you may need to look at their prior appointments as arbitrator and/or counsel.

Lisa then discussed the need to report back to the client on arbitrator candidates in a comprehensive and balanced way and touched on diversity when devising arbitrator shortlists.

Lisa concluded by adding that it is also crucial to conflict check the arbitrator to reduce the risk of allegations of lack of impartiality. Jus Mundi’s conflict checker or Kluwer Arbitration’s relationship indicator are both excellent conflict check tools to use in combination with an internal conflict check.

Kluwer Arbitration

Following Lisa’s excellent presentation, in the second part of the webinar, Vincent Verschoor demonstrated how to successfully navigate legal research on Kluwer Arbitration’s newly refreshed interface. Highlights included how to view content per jurisdiction; using the ICCA International Handbook on Commercial Arbitration Compare Jurisdictions tool and Profile Navigator (database of profiles of arbitration practitioners and experts); access answers to frequently asked questions (“Quick Answers”) on (a) appointment and challenge of arbitrators, (b) arbitral institutions, (c) drafting agreements, (d) privacy and confidentiality, and (e) state immunity; and how to personalise the platform and save favourite tools and resources for future reference.

A Q&A session was held at the conclusion of each part of the webinar.

The webinar was concluded by Shirin Gurdova who thanked participants for attending and notified them of the following workshop on legal writing scheduled in May 2023.  

Meet the Speakers

Lisa Dubot

Lisa Dubot is an English qualified solicitor and a Global Professional Support Lawyer (PSL) for Mayer Brown’s International Arbitration Practice. Lisa is responsible for knowledge management and business strategy, client and lawyer training, thought leadership and advising on complex arbitration matters (among other matters). Lisa has significant experience advising on a wide range of high-profile international arbitrations, including investment treaty, ad hoc and institutional arbitrations, many of which concern the energy sector. Lisa is also a member of the City of London Law Society's Arbitration Law Committee and she enjoys mentoring junior lawyers as a PSL and a mentor for ArbitralWomen's Mentorship Programme.

Vincent Verschoor

Vincent Verschoor is the resident arbitration content expert at Kluwer Law International. His primary focus is on the acquisition, management and updating of content and on the enrichment thereof for use and discoverability on Kluwer Arbitration, although he is also closely involved in the technological development of the site.

Saemee Kim

Saemee Kim is a Partner at Lee & Ko, specialising in international arbitration and cross-border litigation. Ms Kim has handled a variety of high value, complex commercial disputes administered under ICC, SIAC, LCIA, KCAB, AAA (ICDR), HKIAC and UNCITRAL Rules as well as ad hoc arbitrations and cross-border litigation before foreign courts. Ms. Kim is well known in the Korean arbitration community, and has been active in the global arbitration community by acting as Young ICCA Events Coordinator since 2018. She has been promoted to one of the two Young ICCA Events Co-Directors overseeing all of the events and workshops globally held by Young ICCA. She is qualified in Korea and California.

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