INTERNATIONAL ARBITRATION 1/3LY
LUI S There has been one consolidation request. The clarification that the ICDR’s default mechanism for arbitrator appointment is the list method has been helpful and the ICDR rules now expressly state that US discovery procedures are not appropriate for obtaining information pursuant to its international arbitration rules. See Article 21 (10). BRI AN And depositions are also specifically excluded. LUI S Yes. We also included, from the ICDR’s Guidelines, a rule about privilege andwe did so in Article 22 requiring that arbitrators should just apply the highest level of protection to all parties equally. We included in these changes a new rule, Article 16, that addresses the conduct of party representatives. This rule simply says that party representativesmust behave in accordance with such guidelines as ICDR implements on the subject. We have not yet done so, but guidelines are in the works. Another article that should be interesting deals with the conduct of proceedings, Article 20, which says that the parties must take steps to avoid unnecessary delay. And, under this rule, an arbitral tribunal may allocate costs, drawadverse inferences or take such other additional steps as are necessary to protect the efficiency and integrity of the arbitration— arguably this is very powerful. We also wanted to address our inability to remove arbitrators as our colleagues on the domestic side always had the power to remove themon their own initiative for any reason that
on these and other initiatives along with related articles can be found on our website at www.ICDR.org. Our first task was to survey themarketplace, including looking at what our domestic colleagues had done in the fields of commercial, construction and labor arbitrations. We invited extensive commentary from all our international advisory committees andmany other users. We finally launched the rules on 1 June 2014. There were numerous versions over the eighteen-month process and nowwe are in the process of gathering feedback from themarket place. BRI AN How is that going so far? LUI S So far the reception has been very positive. As things stand, I haven’t heard of any complaints or any tinkering that needs to be done. T HE NEW RUL E S IN PR A C T I CE : JO INDER A ND C ONSOL I DAT I ON , MA N A G ING T HE PROCE S S A ND T IMEF R AME S F OR AWA RDS
may have led to frustrate the arbitral process. The ICDR’s Rules lacked a similar provision. Our ability to remove an arbitrator was arguably limited to issues of impartiality and independence stemming froma formal challenge. Now, if needed, we can remove an arbitrator who fails or is incapable of performing the duties of an arbitrator or, for any reason, to protect the arbitral process as needed. BRI AN When you are out talking to people about the new rules, do you feel like you are selling amuch improved product? LUI S Obviously I’mbiased, but I get to see what is in the market place. I also know our culture, I know our team, I know our rules, and I knowwhat our users think; so I have a high comfort level in going around and promoting this product. I seemy role as educational, so a good deal of my time is spent discussing the use of arbitration andmediation in general. And that is obviously something I believe inwholeheartedly. We work with companies in developing their ADR policies, and our hallmark is flexibility: you don’t have to use the rules in one specifiedway; we can help you design a clause for your individual needs or industry. It is your process. We have the rules, we have the arbitrators, andwe have the case counsel/ administrators fromall over the world. We also have location facilities and cooperative agreements throughout the world, so I have all the tools needed to go out there and promote the ICDR but also to develop the international arbitration andmediation cultures in the countries that we operate in.
BRI AN Howare the new rules working in practice? Have you come up against any stumbling blocks or encountered any opposition to the Rules?
I ’ M BI A SED, BUT I GET TO SEE WHAT I S IN THE MARKE T PL ACE . I ALSO KNOW OUR CULTURE , I KNOW OUR T E AM, I KNOW OUR RULES , AND I KNOW WHAT OUR USERS THINK .
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