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Guide to Regional Arbitration (volume 8 - 2020)

Whitelist / Institutions Worth a Closer Look – Special Occasions

23 January 2020

Overview

Not every “specialist” arbitration centre specialises in a region. Some specialise in a sector or type of work. It’s these we mean by “for special occasions”. The occasion may be a contract for a financial product or some intellectual property, or connected with a regular pursuit – shipping, direct foreign investment, sport, etc. Or it may be even more specific: eg, German–Chinese trade, African–Chinese disputes or basketball.

Why does this sort of arbitral providers evolve? Can’t mainstream arbitral providers perform the role satisfactorily, merely by appointing arbitrators with the correct background or experience? Of course, that works too. But specialist providers offer potentially more. First, repetition leads to efficiency. Second, if they emanate from the community they serve, there is the possibility of greater legitimacy and adoption. Here one strays into the territory of different tribes protecting their turfs but, ignoring those concerns for a second, it’s fair to say members of a particular community will be happier to entrust their fate to people they already know and respect than people or organisations they don’t – such as the ICC, or LCIA or other generalist bodies.

White List

  • Court of Arbitration for Sport (CAS)
  • International Centre for the Settlement of Investment Disputes (ICSID)
  • The Permanent Court of Arbitration (PCA)
  • World Intellectual Property Organization (WIPO)

Worth a Closer Look

  • Chinese-European Arbitration Centre (CEAC)
  • DELOS
  • Panel of Recognised International Market Experts in Finance (PRIME Finance)
  • Silicon Valley Arbitration and Mediation Centre

At their best, a specialist provider can offer a remarkably well designed and appropriate version of arbitration. Consider, for example, the Basketball Arbitration Tribunal (BAT, not listed yet here because it is so niche). It provides a full ex aequo et bono decision, delivered within months that is exactly what’s needed by the professional basketball community that exists outside the NBA (the US league). In the non-NBA world, players move between teams in Turkey, Spain, Italy, Greece and a host of other leagues and are at the prey of local courts should the team decide to stop paying them or otherwise tinker with the contract. The BAT was devised at the request of players’ agents to lubricate the market and ensure precious playing time isn’t lost.

Pulling our focus wider, in this chapter we white-list four organisations, and suggest four others as worthy of consideration, should the fit seem right.

White List

COURT OF ARBITRATION FOR SPORT (CAS)

What is it?

An independent institution, created for the settlement of sports-related disputes.

How is it different to standard commercial/investment arbitration?

It functions mainly as an appeals body, rather than a trier of fact (though it does some of the second when agreements allow). CAS spends most of its time reviewing decisions issued by sports federations.

There’s also a difference in how parties opt in to CAS. In “normal” arbitration, the sides have usually signed an arbitration agreement – a contract. But many sportspeople have CAS imposed upon them when in the small print of a sporting body’s code or an event’s rules.

What kinds of cases are most common?

The two biggest categories of work are disputes about football contracts and transfers, and doping. The court has a separate, dedicated list of arbitrators for football disputes. The doping work arises because the World Anti-Doping Code – signed by hundreds of sporting organisations and Olympic committees – contains a mandatory reference to CAS for appeals by international athletes.

In addition, since 1996, CAS has provided on-site dispute resolution for each summer and winter Olympic Games – and latterly – for the FIFA World Cup. For each of these games or tournaments CAS forms a special ad hoc division.

What do those ad hoc divisions do?

They’re a mini, on-site version of CAS. They set up an office in the host city and accept filings from participants or sports entities.

The president of the division establishes a panel (or sole arbitrator) and offers all potential parties the chance to argue at a hearing. There are no written submissions outside of the request; and decisions are rendered within 24 hours. Working in real time this way has meant some of CAS’s work has been pretty groundbreaking.

What’s an example of being “groundbreaking”?

Well, in Salt Lake City, for example, an arbitral tribunal ordered a witness not to flee the jurisdiction – in a dispute about the judging of figure skating. It’s seen as the first time arbitrators have ever asserted such a power.

Or, with the clock ticking down to the PyeongChang 2018 Winter Olympics, two CAS tribunals batch-decided whether to let a large number of Russian athletes return to competition. The athletes had been banned for life following a state-sponsored doping scandal could overturn those bans. Twenty-eight athletes were let back in on appeal (out of the 39) .

Most of the time, though, the disputes that occur during the Games are about qualification and eligibility.

Is there a doctrine of precedent?

De facto – yes. When a tribunal is asked to consider something seemingly novel it frequently looks to earlier CAS awards. In 2012, for example, at the London Olympics, Swedish athlete Lisa Norden was awarded silver in the triathlon, despite being given the same time as the winner. Sweden challenged the photo-finish decision. The CAS tribunal looked at previous cases where tribunals had been asked to review umpire or referee decisions and had declined because those are “field of play decision”. It rejected Norden’s case for the same reason.

Is it busy?

Very. Every year the workload grows. Its latest statistics are from 2016 when it hosted 599 procedures (101 more than in 2015). Of those, 100 were “ordinary” procedures; 458 were appeal procedures; 28 arose from ad hoc divisions; and 13 were anti-doping matters.

That’s more than a case a day.

True. But then individual cases don’t last long. The average CAS case is in fact heard in a day, with four to five months to wait for the award.

Where does it find its arbitrators – and are they sportspeople?

You can only sit as a CAS arbitrator if you are on the approved list. And most of those who gain approval are lawyers, rather than ex-competitors, though they do tend to have an interest in sports. The current list has nearly 400 individuals from 87 countries.

Sport is worldwide. Does CAS need to develop regional offices?

Covering the world from Switzerland isn’t as easy as it used to be. So, as well as its headquarters in Lausanne, CAS now has an office in Sydney and New York, and is planning more. The court’s governing body has signed agreements already with the city of Shanghai to establish an alternative hearing centre in the Pudong area, and steps are under way to have facilities in Abu Dhabi, Kuala Lumpur and Cairo. There will have to be a base in Latin America at some point too.

Is there anything special about CAS rules?

From a design point of view there’s one very notable aspect of CAS work. The relevant rules state, “CAS arbitrators and mediators may not act as counsel for a party before the CAS.” This is the first instance of an institution forcing practitioners to choose what role they’ll play, counsel or arbitrator, but not both. It did so in response to concerns that arbitrators might lean a particular way because it was favourable to their own client in another case (where they were acting as counsel).

Does it have any competition?

It’s at the top of its field, though some more generalist institutions are also handling sports matters. Germany’s DIS has its own set of rules for sports arbitrations (the DIS German Court of Arbitration for Sport). It’s less busy though – the latest statistics show it had 27 matters in 2017.

Sport can be highly politicised. Is there anything controversial to bear in mind about CAS?

CAS is certainly not without its critics. There’s a significant faction in the sporting world that thinks CAS is unfair because it is imposed on athletes – if they “decline”, they aren’t allowed to compete – and it is run for the most part by their opponents (the sporting federations). Claudia Pechstein, a German speed skater, has been pursuing a case using exactly that argument (helped by Germany’s professional footballers’ federation). Pechstein recently had her arguments rejected by the lower chamber of the European Court of Human Rights, but the panel was significantly split. One commentator said the result was good, overall, for CAS but it might want to adjust some aspects of its process in light of the stinging criticism it received – including from the majority.

One underlying problem that gets brought up frequently is how CAS appoints its arbitrators. The president of the tribunal is picked by CAS’s members, which are for the most part the sports federations. So athletes worry the deck can be stacked against them in any dispute with a federation. There are also special powers reserved for the secretary general (Matthieu Reeb) that give that role great clout (some would say too much clout).

Although changes were introduced a few years ago to respond to these concerns and to distance member federations from the appointment of tribunals, CAS still has quirks that are hard to defend.

How has CAS met the criticisms?

As well as adjusting its governance structure, it’s made a few other changes. There are now better legal aid provisions for poorer athletes and on occasion hearings are public (in small numbers). But so far it hasn’t completely sorted out the process of appointment.

It will be interesting to see what happens if the Pechstein case goes to the appeal tier of the European Court of Human Rights, which has been threatened.

INTERNATIONAL CENTRE FOR THE SETTLEMENT OF INVESTMENT DISPUTES (ICSID)

What is it?

A depoliticised forum for settling investment disputes, set up by the World Bank in the 1960s.

What was wrong with the existing commercial arbitration centres?

Those were looked at as an option. But it was decided there would be issues with applicable law, enforcement, sovereign immunity, etc. Going the treaty route was deemed easier.

So is ICSID connected to a treaty?

Indeed. The Washington Convention (more generally known as the ICSID Convention). This treaty, which also gives rise to the centre, entered force in 1966. Under it, ICSID cases follow their own rules of procedure, unaffected by the law of the seat, and awards are only subject to the remedies granted by the convention itself. They don’t depend on the New York Convention. Initially, the convention was ratified by more than 50 states. Today it has 163 signatories, of which 153 have ratified; the most recent signatory is Djibouti. Not all the signatories have been satisfied, however.

Who’s been complaining?

Well, every country hit with an ICSID arbitration tends to take a dim view, for a while. Usually, its doubts pass. But one or two have gone as far as to say “no more” and withdraw – notably, Bolivia, Ecuador and Venezuela to date. They have all renounced the convention, alleging ICSID arbitration is skewed in favour of investors.

How busy is ICSID?

It had 47 new cases in 2019. This compares favourably with the 53 in 2017 that constitute its busiest recent year. So its workload is holding up well.

Are all the cases brought under the convention?

Mostly. Some use the additional facility rules.

What are those?

They allow the centre to hear cases where one state party in a dispute isn’t a member of ICSID. They were launched in the late 1970s to make the process more accessible, and to help settle arbitrations taking place under multilateral investment treaties (such as NAFTA or the Energy Charter Treaty), which provide for ICSID arbitration.

Who runs ICSID?

Meg Kinnear is its secretary general. She’s supported by a 50-strong secretariat. Kinnear was appointed in 2009 and is on her second term. Before that, controversially, ICSID didn’t have a full-time chief executive figure, despite its importance in world affairs. Rather, it was overseen by the general counsel of ICSID’s parent body – the World Bank. Kinnear has spent years working on ways to address some of the complaints about the ICSID process – for example, its slowness and a tendency for awards to be zombified by annulment committees. She’s also sought to educate states better on how to get the most out of the system.

Does ICSID still have a lot of critics?

It seems to. In 2015, a whole conference in Paris was devoted to things perceived to be wrong with ICSID (see www.globalarbitrationreview.com/article/1034993/is-icsid-a-monarchy). It saw complaints from both sides: counsel who represent investors, and those affiliated with the sovereign’s view. Surprisingly, the two sides agreed on certain things. Both wanted the power wielded by the secretary general reduced, and to have less of a coterie of ICSID insiders: arbitrators who are appointed time and time again.

Are those concerns valid?

The secretary general does have a central role, under the rules. If a matter goes to annulment (the ICSID version of review), she picks the annulment committee. She’s also called on to resolve arbitrator challenges if all else fails (ie, there’s a deadlock by the other arbitrators on the case who are supposed to rule on challenge decisions).

It’s also true that certain arbitrators appear more often at ICSID than others, and that some who are on the approved arbitrator list never receive a case. But there are rational explanations. ICSID staff point out hard cases need experienced people, and if you don’t have those then that’s when many of the other things that lead to criticisms of ICSID occur. So the ICSID secretariat actually encourages use of key figures.

Do those responses satisfy critics?

Not really. They say there are still too many arbitrators from the developed world, too many of whom are investor-friendly ex private practice lawyers, and taken together those facts make it an illegitimate system.

What’s the solution?

A lot of these issues arise from the treaty itself. So, the obvious thing would be to change that. But that’s nigh on impossible. In the interim, ICSID’s secretariat has been diligent about listening to concerns and adapting as best it can, within the current framework.

Is ICSID adapting?

After two years of work, it unveiled a new set of rules over the summer of 2018. Since then two more versions have been released (March 2019 and August 2019 working papers). So work is well under way but exactly when the new approach goes live remains in doubt.

How different is the new rules’ approach?

Meg Kinnear promised six areas of adjustment during the workshops to devise the rules. Namely, a streamlined process for appointing arbitrators; a code of conduct for arbitrators; an improved process for challenging arbitrators; rules on the disclosure of third-party funding; more guidance on how to allocate costs after a case; and more steps intended to put decisions and orders into the public domain.

Has she delivered?

Not on all of them. There are plans for a code of conduct (to be developed with UNCITRAL) but so far no actual code (however, ICSID and UNCITRAL’s secretariats are apparently working on a joint one). Meantime, there is talk of expanded disclosure requirements to fill the gap.

In other areas, the new rules should go some way to calming things down. There are elements to speed up registration of a case, and stop it being lost for months in administrative limbo. And there are adjustments to the positions on third-party funding, bifurcation and security for costs.

As for putting decisions in the public domain, the new rules flip from opt-in to opt-out. A party now has 60 days to opt out of publication and even if does that’s not the end of things. ICSID now reserves the power to publish portions of the award – those covering “legal reasoning” – regardless.

They also go some way to addressing concerns about challenges to arbitrators, and how those can be used to impede progress on a case. There is a new (stricter) time limit on bringing a challenge – which must be done within 20 days of discovering the information that justifies the challenge – and a rule that work on a case can continue while the challenge is pending (previously, the arbitrator was automatically suspended).

Has ICSID’s business suffered because of the criticisms?

It’s hard to know. The figures don’t appear to show a hit, but during the same time period other institutions have seen their share of the investment treaty pie increase. Some of those cases might have gone to ICSID had there been fewer complaints.

And not everybody has the same complaints. Some think ICSID doesn’t exercise enough control over arbitrator fees, and that other institutions are better on this score. Many treaties give users a choice, and some now exercise it.

THE PERMANENT COURT OF ARBITRATION (PCA)

What is it?

An intergovernmental institution in The Hague, initially set up to hear state-to-state disputes.

Initially? What changed?

Its mission broadened. The PCA was established in 1899 (under the Convention for the Pacific Settlement of International Disputes at the first Hague Peace Conference) to facilitate dispute resolution between states. It gained authority to hear disputes between states and private parties during the 1930s – the trigger was an arbitration between the Chinese government and the Radio Corporation of America over telegraphic communications between the two countries. In 1962, the PCA published new rules on investor–state disputes, which influenced the first ICSID Convention in 1965. Today, it’s investor–state disputes that dominate the PCA’s work.

What sets it apart from other investor–state administrators?

Well, for a start it has its own palace – the “Peace Palace” – albeit shared with the International Court of Justice. The grand building is something of a metaphor for the whole endeavour. States, unsurprisingly, don’t much like getting sued; they tolerate it better when it comes with due pomp and ceremony. The Palace is one part of that. Another is the PCA secretariat’s courteous approach and attention to detail, which makes the parties feel at ease. To have a case at the PCA is to experience the Rolls-Royce of arbitrations.

Has it heard any particularly famous cases?

A host of them. In the early years, Norwegian Shipowners and Religious Properties raised important issues of state responsibility and the international minimum standard in the treatment of states. They helped to establish that expropriation required compensation.

The arbitration “trial of the century” – Yukos v Russia – took place there, resulting in the largest recorded award in arbitration history (US$50 billion) for the claimants. That’s now in the Dutch court system (where Russia appears to have regained the upper hand).

How busy is it?

It had 190 cases on its docket in 2018, of which 56 were “new” – as in begun that year. This compares with 160 cases in 2017, of which 41 were new.

The PCA continues to administer many high-profile disputes under multilateral and bilateral investment treaties and national investment laws, and others from contracts with state entities. In 2016, for example, the PCA concluded an arbitration between the Philippines and China over maritime rights in the South China Sea, one of the most politically sensitive disputes in recent years. The tribunal ruled in favour of the Philippines, and said China didn’t have any historic claim to 90% of the sea. China has said it won’t respect the award.

It also had 49 requests to act as an appointing authority in the same time frame – a common function it undertakes under the UNCITRAL and other rules – compared with 47 requests in 2017.

Who runs the show?

Hugo Hans Siblesz is the current secretary general. Brooks Daly is his deputy and the court’s principal legal counsel.

What else is unique?

The PCA has several sets of highly specific rules. One covers arbitration about natural resources and the environment; another is for disputes from outer space – literally. Disputes on space exploration and infrastructure.

Is it popular?

It appears to be. In 2016, the Bahamas, Djibouti and Kosovo joined the organisation, bringing the current number of member states to 121.

It also continues to be invited to open branches around the world. It has recently opened a permanent office in Singapore, to service the number of PCA matters now taking place there. It has a similar office in Mauritius (though fewer cases have so far been heard there). The PCA also signs host country agreements, permitting PCA proceedings to take place in similar conditions as those at the Peace Palace. In 2017, it teamed up with Brazil, bringing the total number of host agreements to 12.

WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)

What is WIPO?

It’s a UN-backed agency covering intellectual property and related services.

What arbitration services does it offer?

It has an ADR centre that offers arbitration, mediation and expert determination of disputes between private parties.

What kind of disputes does it see?

IP matters of all stripes. Those include patent and software licence disputes; trademark and distribution agreement disputes; pharmaceutical-related disputes, including research and development agreement. Those are all contractual types of dispute. It can also hear infringement claims on the non-contractual side, though this is rarer (IP owners often think it’s more sensible to go to court for those). Patent-related matters are the lion’s share of the caseload.

How busy is it?

WIPO’s handled nearly 500 ADR matters since it first offered ADR in 1994. Unfortunately, it doesn’t distinguish between arbitration, mediation and expert determination, so it’s not possible to say how much of that is arbitration per se.

What’s clear, though, is there has been an uptick in WIPO’s ADR role: 2018 – the most recent year for which figures are available – saw 60 new requests for ADR of some type, which was more than 2017 (52 new matters); equal with 2016; and up on 2015 (29).

Why the increase?

WIPO hasn’t said – but with the growing role of technology in all aspects of life, it isn’t that much of a surprise. If anything, it’s surprising that WIPO isn’t busier.

What are the rules like?

They were updated last in 2014. They incorporated the 2010 changes to the UNCITRAL rules (increased powers of joinder and consolidation and extra powers over arbitrator appointment were introduced). They also include a mandatory preparatory conference between the parties and tribunal within 30 days of the tribunal being formed – and allow for emergency relief.

Aside from expertise in IP, is there any reason to use it?

Users get access to the WIPO Electronic Case Facility, which allows them to submit documents and communications to an online docket.

Where is WIPO based?

The main office is in Geneva. It also has space at Maxwell Chambers, Singapore, and in New York.

Who does it appoint as arbitrator?

It maintains a database of neutrals 1,500 from 70 countries – for arbitrator and mediator appointments. This list is not public but a separate list of domain-name dispute panellists is on WIPO’s website.

Any concerns?

It’s unclear how popular WIPO is with the high end of the IP market. It’s notable, for example, how few big IP disputes reported by GAR over the years have been at WIPO. They’ve usually been under ICC or AAA/ICDR rules. It would appear that there are aspects of WIPO that don’t appeal to its target market. Potential users are advised to research these further before committing.

Worth a Closer Look

The world of specialist arbitration providers has a few more recent arrivals. Here are four we think are useful for the right case.

CHINESE-EUROPEAN ARBITRATION CENTRE (CEAC)

What is it?

A provider based in Hamburg, focused on disputes with a Chinese and a European side. It was founded in 2008.

Can’t existing providers – either in Asia or Europe – help with such disputes?

They can, but that doesn’t mean there’s not a niche. It’s far from easy getting foreigners to agree to arbitrate in China, or the Chinese to arbitrate anywhere else. So a place that is neutral territory and specialises in precisely this work makes a lot of sense. Plus, it is in Hamburg, where many Chinese firms have offices.

Is it gaining traction?

It would appear so. CEAC clauses are said to be standard for a number of DAX and Dow Jones-listed companies for China contracts. The CEAC rules were also used in the 2013 Vis Moot, which was a boon.

Does it have any cases?

It had 11 cases registered by the end of 2017 (the most recent statistics available), two of which ended in an award and a further three ended with claims being withdrawn by parties.

Who’s been bringing them?

At least four of the cases arise from disputes between German and western European or North American parties, with indirect links to China (such as one party being a subsidiary of the Chinese company). The aggregate value of the cases is around €60 million.

What are the rules like?

They’re closely based on the most recent UNCITRAL rules, with a few amendments.

Such as?

Special provisions on the appointment and challenge of arbitrators through a neutral appointing authority; a choice of law clause; a time limit for an arbitral award; and new provisions on costs, among others.

Why is it in Hamburg?

CEAC grew out of an agreement between the Hamburg and the Tianjin Bar Associations signed in 2004. That agreement spurred a fringe event at an IBA annual conference, in Singapore, around 2007. During that, the idea for CEAC was born.

As to the city itself, Hamburg is somewhere in Europe where the Chinese feel comfortable. More than 400 Chinese businesses have offices there – mostly as a result of shipping.

Who runs it?

Its sole shareholder (though it’s not really a backer) is the Chinese European Legal Association (CELA), a non-profit entity. As well as supporting the centre, CELA organises meetings and workshops to try to stimulate legal exchange between China and Europe. It has also started a youth wing: Young CEAC.

DELOS DISPUTE RESOLUTION

What is it?

A Paris-based centre launched in 2014 to focus on small- and medium-value disputes.

Who started it?

A group of lawyers from Dechert led by senior associate Hafez Virjee. They benefited from patronage from Pierre Mayer and the late David Caron, a leading US arbitrator.

Who is it for?

Delos aims to appeal to users in start-up industries who want to keep the time and costs of arbitration down. At least initially. It hopes that, in time, when those start ups are bigger, and its fame has spread, it will get the bigger disputes too. But for now it’s seeking to get in at the lowest level of work.

Does it have its own rules?

Yes. They’re an expression of four “Delos principles” that, it believes, if followed reduce time and costs. The principles are: “active engagement of the tribunal”; “safe seats, not any seat”; “pragmatism when forming the tribunal”; and “preparation, preparation, preparation”. To accompany the second principle it has published a guide to the seats of the world, designating 16 of them “safe”.

What’s Delos arbitration like in practice?

Delos tribunals are supposed to avoid the adversarial approach. Instead, the tribunal itself “seeks” the truth. Disputes will be heard in the main by sole arbitrators, rather than tribunals, though three-member panels are still an option for cases worth over €5 million.

How are things going?

Initial signs are encouraging. The centre issued its first-ever award in 2017 in a dispute arising from the “smart wearables” industry. The case was concluded exactly as advertised, lickety-split. A single arbitrator issued the award three months after the cases started.

In part because of that, Delos won the GAR award for innovation by an individual or organisation in 2018.

More significantly, the Delos clause is now in “several thousand” agreements, according to Hafez Virjee. In 2019, he left Dechert and joined Delos full time. He has also moved to London where Delos plans to open a permanent office with a hearing centre attached. It is currently seeking a building and the necessary investment.

PANEL OF RECOGNISED INTERNATIONAL MARKET EXPERTS IN FINANCE (PRIME FINANCE)

What is it?

A specialist body intent to bring arbitration to complex financial disputes. It was founded in The Hague in 2012.

Who set it up?

A senior banking lawyer, Jeffrey Golden (ex-Allen & Overy), aided by former Lord Chief Justice of England and Wales Lord Woolf. The idea grew from lectures Golden gave before the collapse of Bear Stearns and Lehman Brothers, on the lack of a world court for financial transactions. With the assistance of the Dutch government and various lawyers, bankers and regulators, Golden launched a world arbitration court instead.

Has it been well received since?

Banks used to prefer litigation over arbitration (and had the luxury of being able to procure it 99 per cent of the time, thanks to their bargaining power). But the sale of derivatives and other complex products to a new sort of client (state-owned companies in emerging economies) brought a new challenge and made arbitration in certain scenarios quite attractive.

ISDA – the organisation responsible for creating standard contracts for derivatives deals – now offers a model clause that includes PRIME Finance as an option (alongside the ICC and LCIA and the UNCITRAL rules). ISDA agreements govern 90 per cent of the world’s over-the-counter derivatives transactions. In 2015, PRIME joined forces with the PCA to pool both people and know-how.

Who’s on its PRIME panel?

It now stretches to 185 names. Those include – from the world of commercial arbitration – Manuel Conthe, a former chairman of Spain’s Securities and Exchange commission; Matthew Gearing QC of Allen & Overy; and Loukas Mistelis, a GAR editorial board member and director of the School of International Arbitration at Queen Mary University of London, as well as many former banking lawyers (including Jeffrey Golden), in-house counsel from banks (such as Georges Affaki) and many, many retired judges (such as Sir Bernard Rix and Sir William Blair).

What are the rules like?

They’re already on their second edition. Revised rules were published in February 2016; the first rules were launched in 2012 (when the centre won a GAR award).

What changes did they bring in?

The new rules clarified when time starts to run following the service of arbitration.

They also resolved some concerns, before the new edition, that it was impossible to appoint “off list” or to appoint an arbitrator of the same nationality as one of the parties (both are now expressly permitted).

Is PRIME Finance “good”?

When it’s given the chance – it can be. It was a runner-up in the 2016 GAR awards, in the Most Important Decision category, after arbitrating a US$1.7 billion case about a credit derivative in just eight days.

Are there any other unusual elements?

It has a fairly rigid pricing structure, with incremental caps on administrative fees relative to the amount in dispute. Anything over €500,000 is capped at €66,400.

SILICON VALLEY ARBITRATION & MEDIATION CENTER (SVAMC)

What is it?

It’s a non-profit centre based in Palo Alto and launched in 2015. Unlike most establishments in this book, it’s not an institution in the traditional sense: it doesn’t administer cases itself. Rather it’s an advocate for the use of arbitration in technology circles and to that end curates a list of tech-savvy arbitrators who are available for appointment. The list is updated annually.

Who is on the list?

In 2018, this list featured 54 practitioners from the US, Geneva, Hong Kong, Lisbon, Paris and Sydney, and includes well-known names in the industry, such as Maria Chedid of Arnold & Porter Kaye Scholer in San Francisco and Thomas Legler of Pestalozzi in Geneva.

Great. How does one get on the list?

The centre accepts nominations from its own members and from the arbitral community in general. Candidates are scrutinised by two committees.

What else does it have going for it?

In 2017, it launched an under-45 young professionals’ group and an international task force, which aims to raise awareness about the use of arbitration in tech disputes among companies and firms.

Does it have any plans to release rules or go into case administration?

Not at the present time.