Co-organised by Paris, the Home of International Arbitration, the International Chamber of Commerce (ICC) and the Comité Français de l’Arbitrage, the first Paris Arbitration Week (PAW) was a significant success. The numerous conferences, presentations and meetings, which took place from 24 to 28 April 2017, attracted members of the arbitration community from all corners of the globe.
ICC European Conference
The PAW started with the first ICC European Conference, attended by around 300 participants. Alexis Mourre, the President of the ICC International Court of Arbitration and Andrea Carlevaris, the Secretary General of the ICC Court marked the beginning of the conference with an overview of ICC arbitration in Europe, which was followed by a debate between ICC arbitration users, Patrick Baeten (deputy general counsel of Engie S.A.) and Susanne Gropp-Stadler (litigation counsel from Siemens AG) regarding arbitrators’ “due process paranoia”, arbitrator selection and diversity issues.
A panel constituted of practitioners, in-house counsel and arbitrators discussed the new ICC Expedited Rules, including whether they address the users’ concerns about time and costs in international arbitration, and balancing due process concerns with the need to obtain a swift resolution of disputes.
The conference also included a discussion about regional challenges to arbitration in Europe, with an overview of various European countries, provided by well-known practitioners and members of the ICC Court (Beata Gessel-Kalinowska vel Kalisz, Inka Hanefeld, Crenguta Leaua, Philippe Pinsolle) and moderated by Marnix Leijten.
The conference ended with an interactive discussion concerning the concept of “a good arbitrator”’ and the “ICC kitchen” regarding selection and appointment of arbitrators, presented by Alexander Fessas, Managing Counsel of the ICC Secretariat, Maria Hauser-Morel, Counsel of the ICC Secretariat, and François Georges and Over Wieck, representatives of the French and the German National Committees of ICC. The panel noted a 14.8% increase in female arbitrators appointed or confirmed by the ICC between 2015 and 2016.
International arbitration in Africa
On 25 April, White & Case hosted a conference on “Africa and International Arbitration”, a session co-chaired by Charles Nairac (White & Case) and Peter Rosher (Pinsent Masons). Alya Ladjimi and Tunde Ogunseitan (both of the ICC) discussed the evolution of ICC arbitration in Francophone, Lusophone and Anglophone Africa over the past ten years, noting a sharp rise of ICC arbitrations in Africa in the past ten years (ICC cases involving a North African party rose from 24 in 2007 to 79 in 2016), especially involving public entities (a 300% increase since 2011). Walid Ben Hamida (Université Paris Saclay) discussed how Africa itself could be more involved in the growth of African arbitrations, in light of three issues where unconscious bias is present: the choice of African seats, arbitrator selection and the choice of counsel.
Tolu Obamuroh (White & Case) made a similar observation: that the majority of African-related disputed are seated outside Africa, in spite of its 72 arbitral institutions, and that African arbitral institutions should work with governments in order to modernise local arbitration laws. Achille Ngwanza (President of the CFA’s OHADA working group) described the strengths and weaknesses of OHADA. Rukia Baruti (University of Geneva, Arbitrator and Managing Director at Africa International Legal Awareness (AILA)) discussed the African investment arbitration instruments which in general attempt to restrict states’ exposure by for instance limiting the application of the protection standards; in parallel, some of these instruments introduced investor obligations, thereby facilitating state counterclaims.
Global Pound Conference
On 26 April, the Maison du Barreau hosted the Paris chapter of the Global Pound Conference (GPC), a series of events which the GPC describes in its website as creating “a conversation about what can be done to improve access to justice and the quality of justice around the world in civil and commercial conflicts”. The day began with an inspiring opening speech, delivered by His Excellency François Zimeray, French Ambassador to Denmark and Ambassador for Human Rights. Mr. Zimeray drew parallels between human rights and commerce, notably by highlighting that the Arab Spring had been triggered by the confiscation of a fruit stall in Tunisia, leading to the self-immolation of the salesman, rendered unable to carry out his trade. The conference included no less than eight workshops and two plenary sessions, each comprising between five and 10 panelists. The attendees were supposed to answer a Q&A at the beginning of each session, using a smartphone application, but the capricious wi-fi tampered with the conversation thus intended by the GPC. The sessions went ahead and the numerous panelists debated on topics such as whether the current solutions of commercial disputes meet users’ needs or whether combining arbitration and mediation effectively is possible.
Third party funding
Third party funding was hotly debated during the PAW.
On 27 April, a debate concerning the Ordre des Avocats’ February 2017 resolution on third party funding (the February Resolution) took place in the prestigious library of the Ordre des Avocats. The panel was composed of Isabelle Michou (Quinn Emanuel), Pierre Pic (Teynier Pic), Jean-Yves Garaud (Cleary Gottlieb) and Yasmin Mohammad (Vannin Capital). The February Resolution concluded that (i) third party funding is favorable to both members of the public and to lawyers, (ii) French law does not prohibit such practice, and (iii), in case of third party funding, a lawyer’s professional obligations remain with his client, not the funder.
The panelists debated on the potential conflicts of interest, Mr Garaud explaining that for the lawyers, the centre of gravity must remain the client, not the funder. This issue led to the question of confidentiality, a strict interpretation of a lawyer’s duty of confidentiality leading to the impossibility for a lawyer to disclose information about the case to the funder without the client’s systematic approval. Mr Garaud thus recommended that lawyers should only discuss the case with the third party funder in the presence of their client. The panelists also discussed the question of disclosing to the tribunal the presence and identity of a third party funder. Ms Mohammad explained that, while this may benefit a claimant (as the tribunal will know that the third party funder agreed to fund the case after having carried out due diligence of the case), it may lead to requests for security for costs, which increase the cost of the procedure.
Later that day, the Sorbonne’s Grand Amphithéâtre played host to a conference organised by Vannin Capital, a funder, and Paris law firm August Debouzy. Charles Nairac (White & Case) delivered the keynote speech. Mr Nairac took a bird’s eye view of the funding industry, tracing its rise over the past 15 years. He reflected on the key role that the principle of arbitral justice played in its development and on the evolving role of funders, who now contribute expertise and sophistication to the client-counsel relationship. A first panel, moderated by Marie Danie (August Debouzy), including Jeffery Commission of Vannin and Nicolas Angelet of Belgian firm Liedekerke, then focused on the ethical issues surrounding third party funding. The second panel, moderated by Yasmin Mohammad (Vannin Capital) analysed the financial tools available to the parties, with Christophe Seraglini of Betto Seraglini providing the legal background, and Matthias Cazier-Darmois of FTI Consulting describing the concrete impact of funding on a party’s balance sheet. But it wasn’t plain sailing for the panelists, who were challenged by both questions from the audience and interventions by a tribunal made up of Christine Guerrier of Thales and Gwen Brooker of Total.
Young arbitration community
To crown a busy day, the young arbitration community met for a social evening that involved no scientific/academic presentation: a cruise on the Seine. The sold-out event was co-organised by ICC YAF, CFA40 and PVYAP, three organisations that aim at bringing the younger arbitration generation together through conferences, debates and social events. The Young Arbitration Cruise was attended by 200 young arbitration practitioners and lasted till early morning.
The next day saw the end of the first PAW, with a Wake-Up (With) Arbitration seminar hosted by Altana law firm, on the topic of “Arbitration and Legal Tech” and a seminar at Freshfields on res judicata. The authors, who attended the Young Arbitration Cruise until said early morning, are unable to make any comments on the Wake-Up (With) Arbitration seminar.
The purpose of this post is solely to present highlights of the PAW. This post does not summarize the numerous events and conferences which took place during the PAW. The official PAW programme is available on the PAW website (www.parisarbitrationweek.com), on top of which many other events and conferences were organized. In total, the Paris arbitration community organized and hosted around 30 PAW-related events and conferences.
