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Guide to Regional Arbitration (volume 5 - 2017)

GAR’S Guide to Regional Arbitration 2017

02 November 2016

Why a guide to less well-known institutions? It’s a good question. After all, it’s not like there’s mass dissatisfaction with the existing, older arbitral institutions, or an appetite for experimentation among global corporations when it comes to their disputes. So why put together a book that largely ignores them in favour of less sure-fire options? One simple reason: those options exist. And if they exist you can’t ignore them, because, inevitably, some will be suggested. And some, as the Hong Kong International Arbitration Center (HKIAC), the Singapore International Arbitration Centre (SIAC) and others show, will become players. And new ones will – at least in the near term – continue to come along.

Why are there now so many centres – and why do new ones continute to appear? Well, for one the world is big – and getting bigger – and organisations such as the London Court of International Arbitration (LCIA) and the International Chamber of Commerce (ICC), consisting of two or three executives at the top end, are small. It’s unrealistic to think they will be able to hoover up all of the new work in the new frontiers of commerce. Others will believe they can get a nose inside the tent.

Second, the international corporation is more promiscuous than one might expect with these clauses. There will always be times when it makes sense to sacrifice its principles to go local. “It just depends how much they want the deal” according to one in-houser from an oil services company speaking at a GAR Live event (New York, 2012). In some places this tendency is more pronounced – lawyers who cover Latin America say it’s particularly common to have a local option imposed. It comes down to negotiating power.

Is this a positive or negative development? In a way it’s neither; it simply is. The impulse to have an arbitration centre is a bit like the impulse to have a stock exchange: fairly universal. It’s even stronger in places where the courts don’t really work.

If anything, for the specialist community that GAR serves, there are upsides to the breeding of new arbitral institutions. Competition is good. Would some of the innovations seen in recent years have come about if institutions weren’t keeping up with each other? It is also tremendously convenient if you work in a region where a good arbitral provider has taken root – as in time it may become less necessary to schlep witnesses, experts, lawyers and documents around the planet for something that has little connection with the city you end up in.

But, more than all that, it helps to expand the pie. When Kigali, the capital of Rwanda, opens a local yet “international” arbitration centre (as indeed it recently has) local industry is more likely to encounter the concept of arbitration; local businesses and their lawyers may experience it first hand in a local matter. In so doing, they should become more pre-disposed to accepting, say, an ICC clause in an international contract. In that sense, local and regional institutions are like go-karting to motor racing: the gateway. (In the same way, local arbitration centres help to expand the arbitral pool.) Or to use a more common refrain, a rising tide lifts all boats.

For that to be true, the “product” on offer at the local level must be “good”. That’s the only potential problem with unfettered expansion. What if it’s not? That’s where books such as this come in.

It aims to answer a couple of questions. First, how many local or regional arbitral providers are there? And second, which are dependable?

To that end you will find reports on the state of play in Asia; Eastern and Western Europe; Middle East and Africa; and Latin America – the places where one finds more of these lesser-known arbitral providers. These give you a “white list” that might be worth a closer look based on conversations with lawyers active in that region. (Don’t read too much into the word “white list” of providers where it occurs; it is just a useful shorthand to convey the general idea of the book.) There are also directories for each region, listing all the arbitral providers we know.

Throughout, the views expressed are those of GAR alone. We’re indebted to those who did assist, however, and some of them are credited in the relevant chapters. Thanks also go to the GAR journalists who scouted out individual views on the institutions from their users – Ali Khan, Tom Jones, Douglas Thomson and Lacey Yong.

Second, not everybody will agree with our selections. That seems to be inevitable – even we’re not fully content with the final list (there are a couple of organisations that we’d like to include who haven’t responded yet to our various enquiries). If you think a particular organisation has a strong case to be included, please do get in touch at the e-mail address below.

This is now our fifth edition. Unlike in previous editions we haven’t included lengthy descriptions of the LCIA or the ICC: we reason that anyone thinking of using a regional institution has already considered the two most established names. And the landscape has changed slightly since last year’s edition: LCIA India has left the scene in New Delhi, while ISTAC has joined it in Istanbul. Therefore, it will always be worth looking at the online version of the guide alongside the hard copy, as this will reflect the latest feedback. I hope you enjoy it. Please send any thoughts or suggestions it inspires to david.samuels@ globalarbitrationreview.com.

David Samuels
Publisher, Global Arbitration Review

All information in this guide is correct as of 2 June 2016.