It is not for me to judge whether you will want to remember 2016 fondly, whilst sipping on your Prosecco (or, following Brexit, English sparkling wine) over a turkey dinner, but it has certainly been an eventful year. This has no less been the case in the world of arbitration. As such, Practical Law Arbitration has published its review of 2016. It covers all manner of arbitral excitement, such as expedited rules and provisions, third party funding and the saga of Essar v Norscot, gender diversity, investor-state dispute settlement (ISDS) provisions, and, of course, the vote of the British people to leave the European Union and our transatlantic cousins’ election of Donald Trump to the office of President of the United States.
Expedited rules and provisions
The year got off to a flying start. Not only have the institutions continued the trend towards greater transparency, with several following the London Court of International Arbitration’s (LCIA’s) example from 2015 and publishing data on average costs and duration of arbitration under their rules, but there has been a series of expedited rules and procedures. On 1 January 2016, the Australian Centre for International Commercial Arbitration (ACICA) saw its new Arbitration Rules and Expedited Arbitration Rules enter into force. The revised provisions relating to multi-party disputes, the conduct of legal representatives and the introduction of an expedited procedure were all of particular interest.
The Singapore International Arbitration Centre (SIAC) followed ACICA in launching its new SIAC Rules 2016, which entered into force on 1 August. The revised rules established new and improved provisions, including on multi-party and multi-contract arbitration, expedited procedure and emergency arbitrator procedures. Most notably, they also introduced a new procedure for the early dismissal of claims and defences, the first key arbitral institution to do so.
Finally, the beginning of 2017 will reflect the way in which this year began, as the Arbitration Institute at the Stockholm Chamber of Commerce (SCC) published its revised arbitration and expedited rules, which will come into force on 1 January 2017. The new rules include revised provisions on joinder, consolidation, arbitrator challenges, administrative secretaries, security for costs and summary procedure, together with a pledge in the Schedule of Costs. Similarly, the International Chamber of Commerce (ICC) announced this year that it would revise its rules to provide for an expedited procedure, before publishing them ahead of their entry into force on 1 March 2017, and the Dubai International Arbitration Centre (DIAC) is also consulting on similar provisions.
Third party funding and Essar
As we anticipated at the beginning of the year, third party funding proved to be of widespread interest within the arbitration community. On 7 November 2016, the Civil Law (Amendment) Bill was introduced into the Singapore Parliament. It seeks to enact a framework for third party funding of certain court and arbitral proceedings in Singapore.
Third party funding in arbitration was endorsed by the Law Reform Committee in Hong Kong, which concluded that reform of Hong Kong law is necessary to make it clear that third party funding of arbitration is permitted, provided that there are appropriate financial and ethical safeguards in place.
Much debate was also generated by the decision of the English Commercial Court in Essar v Norscot, which held that third party funding costs were recoverable, in principle, under section 59 of the Arbitration Act 1996. Indeed, on the blog, contributors explored whether a dormant advantage of arbitration had emerged, whether a number of issues would arise if the decision was left undisturbed, and whether the decision was out of step with the market.
One of the most interesting developments of the year came with the launch of the Equal Arbitration Pledge in May, which aims to improve the representation of women in arbitration and further the appointment of women as arbitrators. The pledge has been met with wide acclaim and an impressive number of signatories, and was accompanied by a new search facility to assist users in identifying a suitably qualified female arbitrator. Since the launch, there have been many other similar initiatives. Indeed, in December 2016, the LCIA provided an update on the implementation of the pledge, including tangible actions to take.
As before, free trade agreements being negotiated between the EU and other countries remained a hot topic in 2016. The arbitration world has been particularly interested in ISDS provisions and the proposal for an investment court to replace investor-state arbitration. To that end, we have been following the developments of:
- The EU-Vietnam free trade agreement, which contained many elements of the EU’s ISDS “wish list”, including a two-tier investment tribunal.
- The EU-Canada Comprehensive Economic Trade Agreement (CETA).
- The Transatlantic Trade and Investment Partnership (TTIP).
Of course, many of these developments have been overshadowed by the events of June and November 2016; that is, the British vote to leave the EU, and the election of Donald Trump as US President.
Whether Brexit means Brexit, is hard or soft, grey, cream or red, white and blue, the historic decision of the British people on 23 June 2016 has far-reaching implications. However, there has been reassuring consensus among most arbitration practitioners interviewed by Practical Law Arbitration that, even in the longer term, Brexit is unlikely to have any major effect on arbitration in England, and in London in particular. This is because, purely from a legal standpoint, there is no reason why it should, and many parties choose English law to govern their agreements regardless of the UK’s membership of the EU. Indeed, blog contributors have noted that we should “bremain optimistic“, and that there could be post-Brexit bilateral trade deals in the making. Of course, there are significant uncertainties, and the UK will have to establish its investment priorities and positions as a state no longer part of the EU.
Practical Law also maintains a wider collection of content on the legal implications of the UK’s decision to leave the EU generally on its Brexit landing page.
For many, the election of Donald J trumped the Brexit vote when the Americans went to the polls on 8 November. There has been enough commentary on the political implications of the decision. However, those who work in the arbitration field may wish to pay attention to what may come of a number of trade and investment agreements. As noted on this blog previously, President-elect Trump has vowed to take the USA out of the TTIP agreement and re-negotiate the North American Free Trade Agreement (NAFTA). Following his election, the European Commission suspended the TTIP negotiations, as they will require a rethink when President Obama leaves office on 20 January 2017. The effects are unpredictable, but we will keep readers updated with future developments.
I began the year by trying to manage expectations. I will leave it for our readers to judge whether or not I succeeded. One thing I stated with certainty was that 2016 was a year sure to be full of developments, and on that front at least, I was correct. In any event, a short break is in order. I encourage you all to mull over the year that has been with our review of 2016. The blog will return in the week commencing Monday 9 January 2017.
On behalf of the Practical Law Arbitration team, all that remains is for me to wish all of our subscribers, readers and contributors a very Merry Christmas and a happy, successful 2017.