Dispute Resolution International (DRI)

About Dispute Resolution International (DRI)

Dispute Resolution International is the journal of the IBA's Dispute Resolution Section. It provides in-depth discussion of current developments and topical issues in all areas of dispute resolution, including litigation, arbitration, mediation and other areas of alternative dispute resolution, as well as negligence and damages.

Dispute Resolution International is edited by Kim Rooney, an independent arbitrator and barrister at Gilt Chambers, Hong Kong. Kim is assisted by an Editorial Board comprising leading practitioners from around the world.

Dispute Resolution International is distributed to all members of the IBA Dispute Resolution Section, giving it a readership of approximately 4,000. It is published twice a year and was launched in May 2007.

If you are interested in contributing to Dispute Resolution International, please contact Kim Rooney at: kim.rooney@giltchambers.com and Zahrah Haider at zahrah.haider@int-bar.org.

If you are not a member of the IBA, you can find out more about how to join here.

If you are interested in advertising in Dispute Resolution International, please email Andrew.Webster-Dunn@int-bar.org

Members of the Dispute Resolution Section committees receive Dispute Resolution International as part of their membership. PDF-only subscriptions are also available to non-members. Please email editor@int-bar.org to order.

ISSN 2075 5333
Pricing: £71 per issue
£144 per year, two issues per year
Five per cent agency discount available on annual subscriptions

Latest Issue - Vol 16 No 2 October 2022

There has been tangible change in international commercial relations in light of the 2022 economic sanctions imposed by the EU, UK and US following developments in Ukraine in February 2022. Lord Mance (at a Global Arbitration Review ‘GAR Live London’ in July 2022) made the comment ‘by far the most likely effect of sanctions in international arbitration is to the funding of cases outside Russia where one party is sanctioned and their assets frozen’. This article considers the implications on international arbitration from both procedural and substantive perspectives. It also touches on the implications under international law. In short, there are a number of ‘procedural’ difficulties to ongoing international arbitrations and on the ability to effectively enforce international arbitral awards. There are also risks, although more limited in scope, to substantive provisions of contract which may or may not lead to an increase in arbitration. Although there will be changes and limitations to international arbitration in light of the EU, UK and US sanctions, this article concludes that those limitations and will be minimal in scope and application. This is because arbitral rules and tribunal case management powers can happily regulate the disruption caused by sanctions. The article also concludes that international arbitration will see an increase in the use of orthodox substantive rights and obligations relating to frustration, impossibility, illegality and hardship. Hardship pursuant to various Civil Codes will be especially popular.

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This paper was given at the 23rd Annual IBA Arbitration Day in 2022 which considered new and novel ideas for the practice of arbitration. It equates the role of a tribunal in an arbitration to that of the conductor of an orchestra, noting that it is the conductor who unifies the different sections of the orchestra to achieve harmony. By focusing on the role played by tribunals, the paper considers radical ideas to improve the services provided by arbitrators to the users of arbitration. The first innovation debated is the creation of an Arbitrator Academy to teach those necessary skills required by an arbitrator which are not typically learnt as counsel. The paper then turns to acknowledge the importance of appraisals for professionals and considers whether arbitrators would benefit from receiving appraisals and, if so, how appraisals could be given to arbitrators. The paper then considers the utility of peer-to-peer coaching and whether it would be helpful to aspiring and experienced arbitrators before finally considering the importance of cognitive diversity in tribunal deliberations.

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By including active case management tools in Procedural Order No 1 and Procedural Timetable No 1, the tribunal lays the foundation for maximising efficiency over the life of the proceeding. In this article, the author proposes a number of innovations to be implemented, as the title suggests, to top and tail the process, with additional steps in the middle. The author provides a template Procedural Timetable No 1 and then discusses selected procedural steps with the corresponding text for Procedural Order No 1. The proposals include pre-scheduling several case-management conferences to address procedural issues early and often; holding a mid-stream meeting (aka a Kaplan Early Opening), where parties give short oral arguments and present limited witness evidence; identifying a pre-scheduled mediation window to allow the parties to consider mediation, without either side having to request it; directing the parties to provide a Joint List of Issues and Schedule of References; and scheduling both a pre-hearing Tribunal meeting (aka a Reed Retreat) and deliberation days in the Timetable.

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This article discusses, from an arbitrator’s perspective, the approach to preparing the first Procedural Order for the conduct of an Arbitration (Procedural Order No 1), so that it fits with the case specifications. The author advocates the approach discussed at the panel led by Lucy Reed at the 23rd Annual IBA Arbitration Day on 25 March 2022 that arbitrators should consider the specific needs of the case and collaboratively engage with the Parties to identify the relevant issues and appropriate procedure for the case, before circulating Procedural Order No 1. The author gives examples of techniques the Arbitral Tribunal can use to engage in a collaborative approach while retaining the final power to decide upon the procedure, including Procedural Order No 1.

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In recent years there has been an evolution in expert evidence in international arbitration towards the Anglo-Saxon practice of party-appointed witnesses as the preferred means of evaluating highly technical questions. Yet regardless of the type of expert appointed, the fundamental principles of party autonomy in arbitration have to a certain extent divorced the arbitral procedure for expert evidence from the local framework usually in place to control its reliability. This article explores two areas in which the absence of guidance for expert evidence in international arbitration stands in contrast with the procedural safeguards for expert evidence in litigation: first, as to the admissibility of an expert’s opinion, and secondly, as to the professional and ethical regulation of expert testimony. Most of the research is drawn from common law jurisdictions, but consideration is also given to civil law procedures with the example of France being used as a primary counterpart.

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The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Year

While the pandemic disruption has extended for far longer than initially expected, courts (after the first wave), arbitral institutions and stakeholders in commercial dispute resolution have largely continued operations, increasingly supported by innovative digital technology, flexible scheduling and flexible cost structures, among other tools.

Released on Jun 02, 2021

The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Seven Months

In 2020, most of the world’s countries have had to respond to the severe disruption caused by the Covid-19 pandemic, which emerged in late December 2019 (the ‘pandemic’). The pandemic poses enormous health and socio-economic challenges. As of September 2020, it is not known when the pandemic will end; some countries are already experiencing further waves of infection. Globally, judiciaries and arbitral institutions have been under great pressure to continue operating during the pandemic [...]

How to order

Members of the Dispute Resolution Section committees receive Dispute Resolution International as part of their membership. PDF-only subscriptions are also available to non-members. Please email editor@int-bar.org to order.

ISSN 2075 5333
Pricing: £71 per issue
£144 per year, two issues per year
Five per cent agency discount available on annual subscriptions

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Copyright: The IBA holds copyright in all articles, newsletters and papers published by them. If you wish to reproduce or distribute any IBA publication or any part of an IBA publication, permission must be requested in writing from the Managing Editor at editor@int-bar.org, and due acknowledgment given.

Disclaimer: The views expressed in journals, newsletters and papers are those of the contributors, and not necessarily those of the International Bar Association.

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