From the Editors - Arbitration Committee bulletin October 2022

Michelangelo Cicogna
De Berti Jacchia, Milan
m.cicogna@dejalex.com

Andre Abbud
BMA, São Paulo
aaa@bmalaw.com.br

Dear friends and colleagues,

We are delighted to bring you the autumn edition of the Arbitration Committee’s newsletter, with articles covering a range of topics of interest to the arbitration community. This edition is issued just before the IBA Miami Annual Conference, the first Annual Conference held in person since 2019, so the newsletter is a sort of aperitif before having the opportunity to meet you all after such a long time.

We begin with reports on the 23rd Annual IBA Arbitration Day held in Istanbul earlier this year. Those who were not able to attend will gain a sense of the thought-provoking panels.

Next, we have eighteen articles examining issues that are of general interest to the arbitration community, from cutting edge discussions (such as the intersection of cryptocurrency, arbitration and insolvency, investment mediation, the interplay between consumer protection and arbitration, and the future of arbitration in the new data-driven economy) to interesting contributions on hot topics in arbitration (enforcement, role of experts, Brexit etc.).

We are extremely grateful to our Editorial Board for their substantial contributions to this edition and for their valuable time. Our gratitude also goes to all contributors to this edition and to the IBA production team for their continued support.

As usual, all committee members who are interested in contributing to the newsletter are encouraged to contact us.

Finally, the Newsletter wants to become an instrument for the IBA Arbitration Committee to share news, provide update on its activities and promote involvement and inclusion of the IBA arbitral community. We start this Fall with news from the IBA Subcommittee on Investment Treaty, the Eastern European Arbitration Group (EEAG) and from the IBA International Commercial Case Law Subcommittee:

• The IBA Subcommittee on Investment Treaty Arbitration has finalized its report on ‘Arbitrating Small Value Claims In Investment Arbitration’.  Small value claims in investment arbitration represent a sizeable percentage of investment cases — across arbitral institutions, industry sectors, and geographic regions. Small value claims in investment arbitration are not necessarily simpler, smaller, or less complex than large value claims; but the more modest sums at stake militate in favour of a proportioned and tempered approach to resolving such cases.
  
  The report is co-signed by the current Co-Chairs (Caline Mouawad, Maxi Scherer) and former Co-Chairs (Noiana Marigo, Patrick Pearsall) and examines small value claims from three angles. First, empirical data from leading arbitral institutions in investment arbitration — ICSID, the PCA, and the SCC — shows that small value claims constitute an important segment of the investment arbitration docket. Second, the report analyses special procedures for arbitrating small value claims that are already available to the parties, in particular in international investment agreements and the arbitration rules of various institutions. Third, the report highlights how parties may choose to incorporate various other procedural mechanisms into their arbitration and create a bespoke procedure designed to streamline their case and minimize the costs of arbitration.
   
• The IBA's Arbitration Committee recently decided to establish the Eastern European Arbitration Group (EEAG), with an aim to promote arbitration and to accelerate evolution of arbitral proceedings in the region by introducing and delivering solutions on the issues of interest for both practitioners and businesses in the region, which the IBA has been at the forefront of through the committed work of the Arbitration Committee. The EEAG also aims to support professional development and the building connections among the region’s arbitration academics, professionals and practitioners.
  
  Cosmin Vasile, based in Bucharest, Romania, and Dalibor Valinčić, based in Zagreb, Croatia, have been appointed as the EEAG’s Co-Chairs.
  
  ​​​​​​​The EEAG has started gathering prominent practitioners from the Eastern European jurisdictions. At their kick-off meeting in September 2022, the group’s members discussed the short- and mid-term plans for the group’s initiatives. The EEAG welcomes all professionals based in Eastern Europe, or having an interest in the region, with the desire to support and further develop the group’s mission and plans to contact the group Co-Chairs for further discussion and development of their ideas.
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• The IBA International Commercial Case Law Subcommittee, under the leadership of co-chairs Sylvia Tonova and Felipe Ossa, is working on a report on force majeure and other doctrines dealing with changed circumstances. The report is expected to cover the law on force majeure and/or changed circumstances from approximately 30 jurisdictions around the world. The Subcommittee is grateful to its members from each of the different jurisdictions who have worked hard to locate arbitral awards discussing force majeure and doctrines concerning changed circumstances and are preparing the report. The report is expected by the end of 2022 or early 2023. The non-confidential arbitral awards are published on the Jus Mundi database under the IBA-Jus Mundi Partnership.

That’s all for this edition. We hope to see you all in Miami during the IBA Annual Conference, and please reach out so that we can meet in person and have a lively debate on topics of interest!

Michelangelo & André