Innovating the Future: Recent Changes and Developments in Global and Regional Arbitral Institutions

Introduction

The past few years brought to light a noticeable increase in the frequency and range of proposed innovations and developments among arbitral institutions. Such developments varied from the adoption of new rules to the introduction of novel concepts geared towards improving practice. These changes appeared globally – similar in some respects, while more innovative in others.

Witnessing these developments raised interesting questions: what lies behind these changes and what do these mean for the future of international arbitration?

The recent bloom of arbitration centers

Reinventions

In recent years, arbitral institutions around the world have taken it upon themselves to update, add to and modernise their rules. Some institutions have even changed their organisational structures.

In the case of the Korean Commercial Arbitration Board (KCAB), changes came about in the form of a significant restructuring of the institution and an extensive upgrade of the international case administration and promotion staff.

In 2018, an important decision was taken by the respective boards of KCAB and the Seoul International Dispute Resolution Center (SIDRC), which resulted in the two organisations joining forces. ^[1] Specifically, the international case administration functions of KCAB were carved out to a separate and newly-formed division named KCAB INTERNATIONAL, headed by the former chair of the SIDRC and run by a full-time secretary general who was formerly an arbitration partner with the largest arbitration practice firms in Korea. Since then, KCAB INTERNATIONAL has been staffed by legal professionals with international and multilingual backgrounds.

The decision also resulted in the consolidation, expansion and modernisation of KCAB and SIDRC’s hearing facilities. Consolidating SIDRC into KCAB INTERNATIONAL also meant that the latter’s international cooperation work could draw from the existing profile and brand power built over the years by the former since its establishment in 2013.

New rules

Most of the momentum seems to be building up in the Asia-Pacific region, perhaps reflecting the rapid growth of the regional economy and the vitality of the arbitration communities in these regions.

In 2018, the Hong Kong International Arbitration Centre (HKIAC) finally completed its rules revision process, announcing the new rules at the HK Arbitration Week in November 2018. ^[2] This improved upon the 2013 Administered Arbitration Rules by introducing, among others, features facilitating the use of third-party funding.^[3]

Earlier in 2018, the Kuala Lumpur Regional Centre for Arbitration (KLRCA) officially rebranded itself as the Asian International Arbitration Centre (AIAC) and thereafter launched a new set of rules. ^[4] The change came in light of the KLRCA’s 40th year. ^[5]

The Japan Commercial Arbitration Association also rolled out an amendment to its two current sets of arbitration rules at the end of 2018, which would take effect early in 2019. ^[6] At the same time, it introduced an additional set of new rules with the aim of providing a more efficient and cheaper arbitration procedure (often called interactive rules) that draws on some civil law-type approaches. ^[7]

In 2017, the Chinese Arbitration Association, Taipei (CAA), launched a new set of rules specifically for arbitrations seated outside of Taiwan as it revealed plans to set up shop in Hong Kong in hopes of attracting cases related to China’s belt and road initiative. In 2018, it revised its arbitration rules and passed new instruments as it renamed and rebranded the Chinese Arbitration Association International to the CAA International Arbitration Centre. ^[8]

In 2017, the Bahrain Chamber for Dispute Resolution launched a new set of arbitration rules, following Bahrain’s adoption of the UNCITRAL Model Law on International Commercial Arbitration for both domestic and international disputes back in 2015. ^[9] The rules include new provisions on challenges to arbitrators, summary dismissal of claims, and the nature and timing of requests for arbitration, responses, statements of claim and statements of defence. ^[10]

The changes among arbitration institutions are not limited to Asia.

The German Arbitration Institute (DIS) also introduced sweeping changes in the DIS Arbitration Rules in 2018. ^[11] The rules were revised to account for developments in domestic and international arbitration as well as practical experiences with the previous version of the rules. ^[12]

Earlier this year, the Chamber of Conciliation, Mediation, and Arbitration CIESP/FIESP, in São Paulo, Brazil, promulgated a new rule regarding Interim Arbitrator Proceedings. ^[13] With this, parties will have access to remedies in cases of emergency and imminent need, even prior to the issuance of the final award.

Other regional arbitration institutions that revamped their rules over the past three years are the Thai Arbitration Institute (TAI) ^[14] in 2017 and the Vienna International Arbitral Centre (VIAC) ^[15] in 2018.

Innovations and initiatives

The onward progress shown by different arbitration institutions to upgrade themselves and promote arbitration in general have appeared in various forms of innovations and initiatives.

Automation and digitisation

The Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada (CAM–CCBC) forwarded the streamlining initiative of fully automating a portion of the arbitration proceedings, specifically the administrative phase prior to the constitution of the court. ^[16] This is merely the first step towards the goal of further digitising arbitration procedures in the coming years.

On the other hand, the VIAC has implemented an electronic case management system that allowed it to administer cases in a paperless manner. ^[17]

Protocol on video conferencing

KCAB INTERNATIONAL has recently revealed a draft version of its Draft Protocol on Video Conferencing in International Arbitration. ^[18] This arose due to the increasing acceptance of video conferences as a cost-effective alternative to court hearings. While parties have been free to agree to such a method, the draft protocol does away with the potentially lengthy and incomplete negotiations on the matter, as it is basically a guide for best practices on the use of video conferences in arbitration. ^[19]

Greater transparency

The bid for greater transparency has also been a milestone for some institutions such as the Arbitral Institute of the Stockholm Chamber of Commerce (SCC). In 2017, the SCC released its policy on how it appoints arbitrators – a policy that was first introduced 11 years prior to this release. ^[20] This effort to offer greater transparency to its users outlines in six points the factors the SCC considers when making such appointments, such as arbitration experience, having a law degree, having a background in either civil or common law, nationality, specialisation and gender diversity. ^[21]

Other arbitral institutions in Europe have also made similar efforts for greater transparency. The International Chamber of Commerce (ICC) International Court of Arbitration, Milan Chamber of Arbitration, and VIAC have also started publishing the names of arbitrators serving on tribunals. ^[22]

Cross-institutional consolidation

Towards the end of 2017, the Singapore International Arbitration Centre (SIAC) unveiled a novel proposal for cross-institution consolidation of related international arbitration proceedings. ^[23] The SIAC proposal envisions various institutions to put down a protocol for consolidating related disputes administered by different bodies, which would theoretically replicate the cost-efficiency of conventional consolidation on a wider scale. It has yet to be seen whether other institutions will join this interesting effort in earnest and incorporate it as part of its practices, but in any event this innovation has earned SIAC a nomination in the 2018 GAR Awards for the best innovation category. ^[24]

China’s first appellate procedure in arbitration proceedings

The Shenzhen Court for International Arbitration (SCIA) recently introduced an optional appellate procedure for arbitration proceedings – the first in China. ^[25] Normally, a tribunal’s award would be final and unappealable, which is often a hallmark distinction between regular court proceedings and arbitration proceedings that would save both time and money.

However, the SCIA noted that this comes at the cost of the losing party lacking an adequate remedy in case an unjust award is issued by the tribunal. While parties could refer the matter to the courts, they would often be restricted to procedural issues.

The introduction of this optional appellate procedure is seen as a middle ground for these trade-offs that would help ensure that justice is correctly served to all parties involved. It earned the SCIA a nomination in the 2019 GAR Awards for best innovation. ^[26]

Arbitration in the world of mobile applications

In 2018, CAM-CCBC launched its own exclusive mobile application platform that makes it easier to access data such as the list of in-house arbitrators and mediators, regulations, infrastructure, code of ethics, resolutions, contacts of its employees and the table of expenses. ^[27]

The application will also be a means for greater interaction during conferences, as it will allow the audience to individually respond to a question posed by the speaker. ^[28]

Specialised panels

The HKIAC recently initiated a proactive measure that seeks to persuade a special sector to engage more in arbitration. In 2018, a panel of arbitrators specialising in financial services disputes was set up. ^[29]

The panel is composed of experienced arbitrators, senior counsel, former judges and former in-house counsel of major financial institutions. Collectively, they can offer their expertise across various disputes arising from financial services, such as: ‘disputes in relation to structured financing, sovereign lending, forex trading, derivatives, asset management, interbank and banking regulatory matters’. ^[30] This earned the HKIAC the nomination for the 2019 GAR Awards for best innovation. ^[31]

Increasing inclusivity in the world of arbitration

Recently, many arbitral institutions have made great strides in advancing gender equality. The Equal Representation in Arbitration Pledge that was launched in 2016 added to this momentum. ^[32] However, this was not the only or the last of these efforts.

Some regional arbitration institutions took great steps forward. In 2018, the HKIAC launched a new group that promotes women arbitration practitioners in China, the Women in Arbitration. ^[33] The group seeks to provide an avenue wherein women in arbitration can discuss issues, grow networks, build business relationships and help develop the next generation of female practitioners. This is one of many steps that the HKIAC has taken to advance gender equality in international arbitration.

In the same year, the VIAC also announced its first all-female panel. ^[34] The VIAC’s arbitrator appointments reflect its efforts for female empowerment – out of the four appointments it made in 2017, two of them were women. ^[35] This contrasts with the appointments made by the parties during the same year, wherein out of the 17 appointments, only two were women. ^[36]

Achievements such as these show that the international arbitration community has come a long way from where it began. Nevertheless, a lot more has to be done in terms of inclusivity, especially in the other aspects of diversity, such as ethnicity, legal backgrounds and nationality.

Possible causes

Aside from knowing how regional arbitration centers have reinvented themselves or initiated innovations, knowing why they did so could prove useful for maintaining, accelerating or recreating these growth spurts across the globe. No single cause could be attributed to the same, so what follows are a handful of likely triggers.

Changes brought about by state governments

Even though the field of international arbitration is inherently international, there still exists inevitable ties and relationships with governments of each jurisdiction. Developments in arbitration can be triggered by government commitments and policies to support it, including the passage of legislation.

In 2015, Russia revised its national arbitration laws with the goal of improving and modernising the country’s arbitration regime. ^[37] The transition period since then has resulted in four institutions obtaining the necessary licences as of 2018, namely, the International Commercial Arbitration Court, the Maritime Arbitration Commission, the Arbitration Center at the Russian Union of Industrialists and Entrepreneurs, and the Russian Arbitration Center at the Institute of Modern Arbitration. ^[38]

Korea revised its Arbitration Act on November 2016 to align its national legislation with the 2006 UNCITRAL Model Law. ^[39] Notably, this includes the court’s ability to enforce the interim measures ordered by an arbitral tribunal. In 2017, the Korean National Assembly enacted the Arbitration Industry Promotion Act, designed to provide the legal basis for the government’s support of the arbitration industry. ^[40] Specifically, it allows the government to support efforts to expand arbitration dispute resolution facilities, cultivate experts and professionals in the area of arbitration, and support research and development in the arbitration field. The enactment of this special act is often cited as the catalyst that brought about the restructuring of KCAB and the launch of KCAB INTERNATIONAL.

Singapore and Hong Kong passed their third-party funding legislations in 2017 and 2018, respectively. ^[41] These legislations aim to abolish the common law torts of maintenance and champerty. Such improvements raise expectations that a more liberal use of third-party funding could herald a new boom in the number of arbitration cases filed around these regions.

The Thai government recently introduced the SMART Visa programme that streamlined the application process and provided incentives that would encourage highly-skilled foreigners to live and work in the country. ^[42] It is hoped that this will raise the opportunity for Thailand to attract more foreign arbitrators. The TAI held discussions on a government resolution that would authorise it to certify the qualifications, expertise and working status of foreign arbitrators in relation to the SMART Visa application. ^[43]

Stimuli provided by similar institutions

Another reason that could account for the recent change of rules is the recognition that other international arbitration bodies have also updated their rules in recent years. ^[44]

Updating rules may be a natural necessity that few institutions could avoid altogether, as they must react proactively to user feedback regarding the efficiency or clarity of current rules. It also reflects the desire of each institution to stay on par with the standards set by institutes considered to be industry leaders. Whether they are leaders or followers, it is common that all institutions strive to stand out by actively seeking ways to improve existing procedures through rules revisions.

The innovations implemented by other institutions sometimes embolden other institutions to follow suit. When another institution – usually a closely-watched industry leader or another similarly situated institution – revises its rules or introduces innovations, it is easier for the other institutions to create the internal justification or momentum to initiate a project that strives to do something similar, if not outperform the other institutions.

Global economic developments

It is to be expected that arbitration institutions would also be motivated to supplement existing services in response to economic developments – another reason behind recent activities.

The anticipation from the One Belt One Road initiative (BRI) is one such example. The ICC and HKIAC have been particularly prominent in their proposals for initiatives aimed at disputes connected to China’s BRI projects. The ICC, for its part, created the Belt and Road Commission to drive the development of the ICC’s existing procedures and infrastructure to support BRI disputes. ^[45] The HKIAC has also maximised this opportunity by introducing a series of BRI-dedicated services, including the launch of the Belt and Road Advisory Committee and the hosting of outreach programmes. ^[46] Similarly, the CAA’s plans to expand to Hong Kong was known to be triggered by the BRI and the disputes that may arise therefrom. ^[47]

Technological advances

The world today is ever more connected and significant changes have come along with these fast-paced technological advances. Some institutions have taken things a step further by integrating technology into its processes, such as CAM-CCBC’s full automation of a portion of the arbitration proceedings ^[48] and the VIAC’s electronic case management system. ^[49]

In KCAB INTERNATIONAL’s case, the Draft Protocol on Video Conferencing in International Arbitration came in response to the realisation that such avenues for conducting proceedings have become more and more prevalent in recent years. ^[50]

A task force was even created to address the issues of data protection through use of electronic devices. The International Council for Commercial Arbitration (ICCA) and the International Bar Association (IBA) recently joined forces to establish the Task Force on Data Protection in International Arbitration Proceedings, which is charged with creating guidelines on how data protection issues impact the arbitration process and arbitration participants. ^[51] It can be expected that these developments could also impact, to some degree, the practices and protocols put in place by arbitral institutions in the future.

Parallel promotions of arbitration

The proliferation of networking and conference opportunities also act as a cue that sparks further cross-pollinations of ideas and initiatives within the arbitration community, which in turn stimulates the promotional efforts of the institutions.

Cultivating the next generation of practitioners

Initiatives from various institutions provide platforms to engage the younger generation of practitioners in the arbitration community, such as the Young ISTAC, DIAC 40 and KCAB Next.

One of the recent additions, KCAB Next, is a voluntary member-driven group launched in November 2018. ^[52] It serves as an ongoing platform where ideas are exchanged and professional friendships are nurtured among the most active and visible younger members of the arbitration community in Korea. With its 13-strong steering committee members – selected on the basis of their professional reputation in the Korean arbitration market and which represent the diversity that exists in the field in terms of gender, nationality and legal backgrounds – the new group’s basic role is to organise or support events in which young arbitration practitioners can network, learn and collaborate in long-term projects relevant to arbitration.

Introducing law students to arbitration

More and more law students and future legal practitioners are becoming aware of arbitration through moot competitions such as the Willem C Vis Moot, Vis Moot East and Foreign Direct Investment Moot Competition, each of which are facilitated by various arbitration institutions.

The AIAC and ICC jointly hosted the Pre-Moot Competition for the Willem C Vis International Commercial Arbitration Moot for the fifth time this year, while the Beijing Arbitration Commission supported the Vis Beijing Pre-Moot again, following the previous two years. Seoul has its own pre-vis moot competition jointly hosted by the Seoul National University, KCAB INTERNATIONAL and the Korean Council for International Arbitration. In February 2019, the competition drew 10 teams from five different jurisdictions.

Seoul is likely to become the centre stage for a major global competition in 2020, as it is poised to host the global rounds of the FDI Moot Competition – the first time in history where the global rounds would be hosted in Asia.

Other institutions in Asia, such as the TAI and the Thailand Arbitration Center also hold various orientations specifically for law faculty and students from various local universities.

Major conferences

Annual conferences or groups of conferences have gradually become a fixed feature in the international arbitration landscape. The annual HK Arbitration Week has long since been a periodic annual event in Asia ^[53] and so has the China Arbitration Summit, which usually takes place in September. ^[54] The SIAC hosts it biennial congress every even years, along with a host of other international conferences. ^[55]

In Korea, the annual celebration called Seoul ADR Festival is hosted every year in collaboration with UNCITRAL, the Ministry of Justice and the ICC. In 2018, it celebrated the seventh ADR Conference, which was kicked off by a keynote speech by Neil Kaplan and was attended by over 200 delegates from various parts of the world. ^[56]

Similarly, Thailand hosted its first International ADR Conference last May ^[57] and Malaysia annually hosts the Asia ADR Week. ^[58] Taiwan has also been hosting its celebration of the arbitration day, the Taipei International Conference on Arbitration and Mediation, which is usually around August. ^[59]

Discussions and dialogue created through these conferences bring diverse groups of participants together and provide them with platforms to highlight recent positive developments in other jurisdictions. This rich intellectual exchange often spurs another round of similar or even more innovative initiatives by institutions in other jurisdictions.

Conclusion: implications for the future of arbitration

Possible trend: departure from the one-size-fits all model

The heightened visibility of activities by regional arbitration centres, as well as the innovations introduced by the more established names, suggest that arbitration has matured to a stage that many realise that no one model of dispute resolution fits all disputes.

In face of increasing pressures to address the issue of mounting costs and delays, arbitral institutions are making room to create more diverse options for the users to choose and tailor it for their own needs. Some cases will need the complex and highly structured procedures, while others need more hand-holding and flexibility in the conduct of the proceedings. Some may need more regional focus. In any event, no single dispute is identical and this opens the doors for different dispute management models. This in turn creates the justification and momentum for new institutions to innovate and increase their profiles to new markets.

Possible trend: more divergence than convergence among institutions?

Whether these new developments signal a trend of increasing convergence among institutions (since a good idea in one institution is caught up by others) or a trend of divergence (as each institution is trying to persuade users that it is different from others), is a matter that is left to be seen. But the answer may well be that we are moving towards diversity, which is a concept distinguishable from divergence.

Divergence suggests a lack of harmony among institutions with regards to the acceptable level of standards of fairness and efficiency. In contrast, diversity suggests that while all institutions share a common understanding of what are the expected and desirable features of international arbitration, there is no need for one model to serve all cases disregarding the different needs of each dispute.

This might be the realistic approach as the types and sizes of disputes, as well as the expectation of the parties, are ever transforming and diverse. This diversity of cases and users is enough to call for the innovations and reinventions of even the smaller regional arbitration centers. And by incessantly finding innovative ways to make arbitration more user-friendly for each specific cases, these institutions might as well be stimulating the others to improve so that arbitration as a whole continues to improve, develop and innovate into the future.