30 Jun 2011

Dispatches from a wandering president

by Doug Jones

The progress of arbitration reforms is intrinsically linked to their respective governments

My recent election to President of the Chartered Institute of International Arbitrators has provided me with an unparalleled opportunity to pursue the interests of one of the world’s leading professional institutions and to prominently position Australia on the map of international commercial arbitration. It is an opportunity for which I am very grateful.

Since my election in February the role has demanded attendance at numerous arbitration conferences, participation in international Vis moots, the delivery of countless speeches and has undoubtedly increased my familiarity with many international departure lounges!

One thing that I am convinced of is how intrinsically linked the progression of arbitration reforms are to their respective governments. Here in Australia we have witnessed how important the support of Attorney-General McClelland has been. However the experience of international jurisdictions varies dramatically. Below are some of my findings on the places I have visited since my election.

United Arab Emirates: The Dubai International Arbitration Centre has seen its caseload almost quadruple over the course of the past three years. Plans to reform the UAE Arbitration Law that begun before the global financial crisis have revived following the slump. Reform is certainly necessary as the existing law is well and truly outdated and does not meet the needs of a modern commercial community for predictable regulation of international arbitration.

South Korea: I was fortunate to attend the IBA International Arbitration Day in Seoul, in March. The opening up of the Korean legal market means that opportunities for international arbitration practitioners in Korea are considerable. The arbitration practices of the existing Korean law firms are booming, with both local and expatriate international arbitration practitioners being kept busy.

India: I attended the LCIA India Symposium in Hyderabad, which was well attended by in-house counsel, and had a series of meetings in Delhi with CIArb members, senior lawyers and government officials. India continues to debate the question of whether the present structure of one act for both domestic and international arbitration should be maintained. My personal view, which I expressed at a number of public and private gatherings during my visit, is that the two should be separated.

United States of America: Practice of international arbitration in the US is undoubtedly diverse. On my first visit to the US I travelled to the New York office of JAMS, spoke at Georgetown University in Washington DC, spoke at a meeting of the Miami International Arbitration Society, and addressed members of CIArb and the Houston International Arbitration Group in Texas. I returned in May to attend a number CIArb meetings and deliver speeches in Chicago, San Francisco and Los Angeles. A highlight of my visit was attending the American Bar Association Section of International Law and Los Angeles County Bar Association Section of International Law conference, "International Arbitration in the 21st Century: Trends, Developments, Challenges". The Conference was attended by over 100 delegates from various parts of the US, and a sprinkling of participants from Europe.

Given the amount of interest in international arbitration, the size of the US economy, and the developments of international arbitration practice in a number of parts of the country, it would be good to see some reform of their federal international arbitration law to ensure consistency with best practice in other parts of the world.

Japan: I visited Japan shortly after the tragic events unfolded in March this year to attend the Inter-Pacific Bar Association Conference. The attendance and support of all conference delegates was sincerely appreciated by the Japanese. The recurring topic in sessions related to the Asian practice of Arb-Med. This practice often causes a debate between civil lawyers and common law practitioners. The emerging consensus seemed to be that arbitrators may not (at least in some legal systems) be able to provide the full panoply of mediation methods including caucuses – but there is a strong need for them to take a more active role in assisting parties to settle their disputes.

More locally, I was proud to host the 2011 CIArb Conference in Sydney. It was appropriate that we met in Sydney because of the recent developments in international dispute resolution through legislative and institutional reform. I was very proud to showcase Sydney to CIArb's 200 delegates from the UK, Europe, US, Asia, Middle East and Australasia. I believe the conference was very successful in achieving its aim of facilitating a collaborative learning so that attendees could hear the latest news and developments from practitioners and clients in the region and discuss what is new, what is working and what needs to change.

During my role as President I have also had the privilege of participating in the 18th Vis moot in Vienna and the more regionally focussed Vis (East) moot in Hong Kong. Both moots had their charm; from an intoxicating buzz in Vienna to the intimacy of Hong Kong. I was delegated the honour of judging the Vis (East) moot and I was exceedingly impressed with the next generation of legal minds. At risk of perhaps being too parochial, I have been particularly impressed by the legal minds of young Australians and am proud of the success they have enjoyed in this area.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.