The Arbitration Station

The Arbitration Station is getting very close to the big three digits - Episode 100 is just around the corner. For now, we discuss ordre public/public policy/public order/IPO (there’s some terminology confusion on this point) as well as standard of review based on a recent French court decision on the review of an investment treaty award [TIME: 9:15]. The second topic is related, and concerns how to handle advocacy in arbitrations that involve elements of criminal law [TIME: 32:52]. This week’s Happy Fun Time, finally, involves a discussion about the relationship to your clients [TIME: 48:00].

With no guests and (almost) no preparation, Saadia, Brian and Joel discuss three issues and ask more questions than they are giving answers. First up is the ICC Court’s scrutiny of draft arbitral awards [TIME 10:50], followed by tribunals’ power to disqualify counsel [TIME 29:14]. Happy Fun Time gives the episode its name: how do we plead (and decide cases) based on foreign law, i.e. laws that we are not formally qualified in [TIME: 46:57]?

PS, the ICCA Inclusion Fund mentioned by Saadia is here.

Hola nerd amigos! We talk to Mohammad Tavana about the application of Sharia law in international arbitration [TIME 07:44]. Then Saadia, just back from a trip to Rwanda and Cote d’Ivoire, discusses some of the investment law and arbitration related trends on the African continent, in particular the AfCFTA treaty, currently being negotiated [TIME 35:46]. Our Happy Fun Time topic gives the episode its name (it could also have been “The Sharia Arbitration” or “The Fifty-Four States”) - what is the status of the billable hour model, for counsel and arbitrators alike [TIME 01:00:53]?

With Joel on holiday, the others talk about one of the more crucial early steps of any arbitration - the advance on costs [TIME 07:33]. We then interview, much overdue, Dorieke Overduin, Senior Legal Advisor with the Dutch Ministerie van Economische Zaken en Klimaat about her work with drafting the Dutch Model BIT, and about the role and function of model BITs more generally [TIME 27:19]. Saadia and Brian also have a happy fun time talking about the Metaverse [TIME 59:33].

We manage to clock in under an hour, by restricting ourselves to two topics. First, we discuss the notion of territory in investment arbitration, from several different angles that cover both annexations and the metaverse [TIME 11:21]. We then discuss experts for Happy Fun Time, more precisely how to shop for them, how to find them and how to replace them in an arbitration [TIME 34:14].

PS: With eerie timing, the Stabil and others v. Russia award was made public on the same day we recorded, so our statement that all Crimean cases remain unpublished it’s no longer true. The award can be found, among other places, at our favorite IAReporter.

First, we’re introducing our new guest correspondent Leonor (familiar to loyal listeners), who talks to Lucy Greenwood about how the Green Pledge has morphed and how it is implemented in the real world [TIME 11:40]

The three co-hosts then discuss an issue which is very top of the international arbitration community’s mind in times of war and sanctions: counsel withdrawal [TIME 38:41].

As always, we try to finish with a very Happy Fun Time, which sees us express some concerns about “pay to play” publications and conferences [TIME 56:49].

No (normal) Arbitration Station episode this week. A country where we all have friends and colleagues - and where there’s a very strong arbitration community - is under attack and we could not bring ourselves to record our prepared segments or have a Happy Fun Time.

There will be reasons to return to the many legal issues arising out of this war, but now is not the time. Now is the time to be human, and to stand with Ukraine.

A few ways to help:

1. Donate to the NGO Save Life or to the special account opened by the National Bank of Ukraine.

2. Join initiatives for lawyers, such as United for Ukraine .

3. Further information about ways to help as a foreigner is here.

After trying for several seasons, Joel manages to finally talk the others into recording a somewhat shorter episode. We achieve this by focusing on only one substantive topic, namely settlements - when, how and why do arbitrations settle [TIME 07:09]? Happy Fun Time is about what to do when you don’t have anything to do, or more precisely: how to allow yourself to relax in an otherwise stressful legal profession [TIME 30:32].

Saadia and Joel sit down to discuss the concept of an investment’s “unity“, inspired by a recent key note speech by Christoph Schreuer [TIME 07:03] This week’s guest is Jonathan Passaro, who left big law to become an executive coach and now uses his experience as an arbitration lawyer to coach other lawyers to become happier and better professionals [TIME 29:14}. Joel then leads Happy Fun Time, trying (and failing) to reconceptualize how we talk about and refer to old cases [TIME 57:08}.

Back from holidays spent in three different places, we talk about the CIArb Framework Guideline on the Use of Technology in International Arbitration [TIME 06:43], which Saadia has read. Brian then interviews Jenna Burton of Raedas, an expert on corporate intelligence who often works in arbitration-related matters [TIME 35:44]. The first Happy Fun Time of 2022 sees us taking on transcript corrections from a practical perspective - how does the presence of an official live record influence the lives of arbitration lawyers [TIME 01:00:20]?