This year, the ASA Arbitration Practice Seminar was organised jointly with DIS (Deutsche Institution für Schiedsgerichtsbarkeit) and took place in Badenweiler, Germany, on 18-20 January 2013.
The annual Seminar, which follows a format developed in 1997 by ASA, is aimed young and old practitioners with already some experience in arbitration who wish to continue building on their international arbitration knowledge and practice. The format is intended to foster discussion and debate among the approximately sixty participants. Two international practitioners with considerable experience, one from a civil law background and one from a common law background, are assigned to serve as discussion leaders for each of the eight sessions, raising issues of interest and guiding the debate. This year’s seminar was led by Pr. George A. Bermann, Prof. Klaus-Peter Berger, Michael Black QC, Elliott Geisinger, Dr. Klaus-A. Gersternmaier, Karyl Nairn, Constantine Partasides and Dr. Paolo Michele Patocchi.
The seminar itself is divided into eight sessions dealing with a wide range of topics, with a focus on practical questions of procedure, which are broadly addressed in the sequence in which they would arise in arbitral proceedings.
On this occasion, the participants, including a number of senior figures in arbitration, brought to the table a great diversity of experiences and opinions which led to lively debates on many issues. Issues which gave rise to particularly enlightening discussions included the merits of the tribunals’ and the parties’ increasing reliance on various guidelines, in particular with respect to challenges of arbitrators and document production. These were criticised by some participants for taking away the flexibility of the arbitral process to adapt to specific cases, but were seen favourably by others for increasing predictability. In the context of challenges, guidelines were praised as a useful tool, but participants were also warned against over-reliance on them to the detriment of independent reasoning and analysis, in particular in light of the lex arbitri. In this respect, an informal poll conducted by one participant revealed that while most of the participants who act as arbitrators look to the relevant IBA Guidelines when assessing a potential conflict of interest, only a few review the relevant jurisprudence from the lex arbitri.
Nowhere was the divide between the approaches of civilian, especially German, and common law lawyers more apparent than on the virtues of the tribunal taking a leading role in the fact-finding process in the interests of promoting the efficiency of the proceedings, referred to by some as the “German advantage”. The participants discussed a number of issues relating to this topic, with many practical examples and counter-examples given, in particular on whether the tribunal should take the lead in the cross-examination of witnesses and experts in the evidentiary hearing, and whether the tribunal should decline to hear a witness where it does not consider his or her testimony to be relevant.
With respect to awards, participants notably discussed when dissenting opinions are warranted, and how to deal with the allocation of costs. A number of interesting alternative approaches to dealing with the allocation of costs were also raised, including the tribunal opening costs submissions which contain “offers without prejudice save as to costs” previously made by one party only after having decided the dispute on the merits.
The free exchange of ideas and opinions is clearly a key advantage of the Arbitration Practice Seminar. This exchange is not limited to the formal sessions; it overflows into the numerous coffee breaks, lunches, cocktails, and dinners during the course of the event, which starts on the Friday before lunch and finishes on the Sunday after lunch. The setting of the Seminar – a turn of the century grand hotel in a sleepy but picturesque village in the Black Forest – also contributes greatly to fostering a sense of camaraderie among the participants, making it a useful networking opportunity. Although the schedule was packed, the organisers allowed the participants some time to take advantage of the local thermal baths, or to take a brisk wintry walk around the village.
The next ASA Practice Seminar is scheduled to take place in January 2014, most likely in Italy. More information will be posted on the ASA website as it becomes available.