Arbitration Re-examined
Law School's Annual "Arbitration Day" Conference Considers the Future of Alternative Business Dispute Resolution
New York, February 29, 2016—With the growth of arbitration to settle international business disputes, legitimacy debates continue to shadow the results of resolutions reached outside of the courts. In an effort to encourage the evolution of transparency, diversity, and standards of conduct in international arbitration, both commercial and investor-State, Columbia Law School hosted its annual “Columbia Arbitration Day” on Feb. 19.
Now in its seventh year, Columbia Arbitration Day has become an important source of information and debate on the most significant trends and challenges in international arbitration. The annual event attracts hundreds of practitioners and scholars, as well as students, from around the world and is sponsored by the Columbia International Arbitration Association. It is the largest student-organized conference on the developing practice of arbitration. This year’s conference was organized by co-chairs Libby Marden J.D. ’17, Tamer Mallat LL.M. ’16, Amanda Jiménez Pintón LL.M. ’16, Simón Navarro González LL.M.’16, and Mevelyn Ong LL.M.’16.
This year’s Arbitration Day invited “new perspectives” on “canonical aspects of the system,” weighing the prospects for class arbitrations; the role of auxiliaries and associated conflicts of interest; and the enforcement of arbitral awards in violations of international law and instances of public corruption. An afternoon panel on challenges to the legitimacy of international arbitration was introduced by conference co-chair Simón Navarro González, and moderated by George A. Bermann '75 LL.M, the Jean Monnet Professor of EU Law, Walter Gellhorn Professor of Law, and director of the Center for International Commercial and Investment Arbitration at Columbia Law School.
“This entire symposium could have been devoted to questions of legitimacy in arbitration,” observed Bermann, explaining that he had already circulated among his panelists a list of “aspects of legitimacy” to consider, including transparency, the limitations on access to courts following arbitration, public accountability and diversity and inclusiveness among arbitrators. “When we turn to investor-State arbitration, there arise the perennial question of the proper balance between investor protection and public protection, and, frankly, the indeterminacy of ethical standards in international arbitration.”
The panel featured short presentations and responses by:
- José Ricardo Feris, deputy secretary general of the ICC International Court of Arbitration in Paris;
- Justin D’Agostino, global head of the dispute resolution practice at the firm Herbert Smith Freehills, based in Hong Kong, and its joint regional managing partner for Asia and Australia;
- Gabrielle Kaufmann-Kohler, professor of arbitration and private international law at the University of Geneva Law School and a senior partner in the arbitration firm Lévy Kaufmann-Kolher; and
- José Manuel Garcia Represa LL.M. ’03, a partner in the firm Dechert LLP, specializing in international commercial and investment arbitration in Latin America and Spain.
The panel considered a wide range of issues—such as national court interventions, the “judicialization” of arbitration, diversity in the composition of arbitration tribunals, and the gaming of court systems to delay arbitration and the enforcement of arbitral awards—and then the experts took questions from the audience. A conference attendee asked about “sovereignty challenges” to independent arbitration tribunals arising from the present political currents of populist nationalism and social democratic liberalism.
Represa insisted transparency would resolve political problems. “Frankly the legitimacy concern boils down to having a process that everyone can understand and adhere to, and that will promote voluntary enforcement and compliance with the awards,” he said. “The key for transparency is to ensure that the public understands how the tribunals [reached their decisions].”
“My takeaway,” concluded Bermann, “is that international arbitral institutions have a major role to perform in all the challenges we’ve been discussing, whether in terms of diversity, transparency, or efficacy. I applaud the innovation and resourcefulness that the institutions have displayed so far, and I hope we will get more from them in the future.”