On 21 November 2016, ACICA and King & Wood Mallesons co-hosted an event to kick off Sydney arbitration week: Judith Levine in conversation with Alex Baykitch & Andrea Martignoni. The theme of the interactive seminar was current trends and experience in arbitration, focusing on the Asia-Pacific region. Some key trends discussed were cost and time efficiency in international arbitration, investment arbitration in Asia, the use of litigation funders in arbitration, trends in transparency and the prospects for an uplift of international arbitration work in Australia.

The panel first discussed efficiency measures. In relation to drafting efficiency measures into the arbitration clause, the audience was urged to use caution, as overly complicated dispute resolution clauses can prove to be a double-edged sword. It was agreed that the use of tribunal secretaries and of lists of issues from the outset can be helpful.  Another tip was for counsel to specifically flag the most important documents for the tribunal’s attention so that the tribunal will read those ahead of the hearing. The use of mock-arbitrations was mentioned as a novel approach in testing the strength of the case, but this would perhaps only be appropriate where the stakes were particularly high.

The discussion then turned to frontier issues in international arbitration including third party funding, investor-State arbitration in the Asia-Pacific region and transparency initiatives. Third party funding has become big in London, while in the Asia-Pacific region Singapore and Hong Kong have made moves to explicitly allow third party funding. By contrast, there is comparatively little investor-State arbitration in our region. There is now a greater push for transparency of arbitral proceedings and this had begun to be addressed at the level of institutional initiatives, rather than at the level of the arbitration agreement. Finally, there is a predicted increase to come in arbitration work in Australia. This will be driven by the increased use of arbitration by financial institutions for complex financial transactions. For the moment the arbitration activity relates mostly to project disputes.

Author: Marina Kofman, ACICA