International Arbitration and the Construction Industry: An Introduction to the Field of International Arbitration on October 11, 2019

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Albert Bates Jr.
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R. Zachary Torres-Fowler

Over the past decade, international arbitration has played an increasingly prominent role in the construction industry.  As contractors and owners pursue greater opportunities outside their domestic jurisdictions, international arbitration has provided parties with a reliable, flexible, and neutral forum to resolve disputes.  Indeed, a quick glance at the most recent statistics from any number of the leading international arbitral institutions, such as the International Chamber of Commerce and International Centre for Dispute Resolution, shows that construction arbitration accounts for one of the largest components of the institutions’ caseload.

In our own practice, we are commonly approached by clients or colleagues with questions concerning the field of international arbitration whether because they are pursuing business abroad or have an intellectual curiosity about the practice.  The one thing we tell all of them is that, while retaining similar characteristics as U.S. litigation or domestic arbitration, international arbitration is, without question, a fundamentally different approach to dispute resolution.  The combination of common law and civil law norms over decades has created a dispute resolution process that is markedly distinct from U.S.-styled practices.

With that in mind, our colleagues at Pepper Hamilton have coordinated an upcoming half-day conference at the firm’s offices in Philadelphia, Pennsylvania on October 11, 2019 called “The Art of Arbitration.”  Through a series of four panels, our speakers will introduce the field and practice of international arbitration to a wider audience from start to finish.

  • International Arbitration Clause Drafting – First things first, how does a party even decide it wants to utilize international arbitration? What are the advantages and disadvantages of international arbitration as opposed to other forms of alternative dispute resolution?  What are the features of an effective international arbitration clause?  What institutional arbitration rules should a party select from the alphabet soup of arbitral institutions: ICC, ICDR, LCIA, HKIAC, SIAC, SCC?  In the first panel titled “Drafting the Clause: Perils and Pitfalls of Drafting International Arbitration Clauses,” Jim Rosener, Matt Adler, and Frank Griffin of Pepper Hamilton will introduce the process of drafting an international arbitration clause and identity issues that commonly give rise to “pathological” clauses.
  • Disclosure and Examinations in International Arbitrations – Unlike U.S.-styled courtroom litigation, there are no set rules of civil procedure in international arbitration proceedings. Instead, more than anything, international arbitrations are governed by common norms that blend common law and civil law traditions.  This is most apparent in international arbitration’s approach to document disclosure and examinations.  In our second panel, “Taking of Evidence in International Arbitration: Document Disclosure and Examinations,” Maia Harris, Rich Foltz, and Zach Torres-Fowler of Pepper Hamilton and Shawn Conway of the Dutch law firm Conway & Partners will discuss the tension between common law and civil law traditions over the appropriate methods of taking evidence and the procedures that international arbitration proceedings commonly utilize to bridge the gap.
  • Enforcement of Foreign Arbitration Awards – After months, if not years of preparation, document disclosure, examinations, hearings, and submissions, the parties finally get an award—now what? The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 is the cornerstone of the field of international arbitration because it ensures that, practically speaking, any international arbitration award will be readily enforceable in hundreds of jurisdictions around the world.  That said, the practice of international arbitration award enforcement is a highly nuanced field that varies from jurisdiction to jurisdiction.  In panel three, “Enforcement in the U.S. and Other Jurisdictions,” Will Taylor and Jeremy Heep of Pepper Hamilton and Harish Salve, a Senior Advocate of the Indian Bar and member of Blackstone Chambers in London, will introduce the concept of international arbitration award enforcement and will explain some of the most relevant issues that have arisen in enforcement matters over the past decade.
  • Arbitrator Impartiality and Conflicts – What happens behind closed doors when a party selects an arbitrator? How do arbitral institutions address objections and challenges to arbitrators? How are institutions and arbitrators addressing the various other issues related to arbitrator selection in international arbitration proceedings.  With our fourth and final panel, “Arbitrator Impartiality: Conflicts of Interest in International Arbitration,” Joe Imperiale and Albert Bates of Pepper Hamilton alongside Mary Kate Wagner of the ICC and Thomas M. Ventrone of the ICDR, will pull back the curtain and explain the various issues raised during the arbitration selection process from the perspective of advocates, arbitrators, and arbitral institutions.

Lastly, we would be remiss not to mention that, in addition to a highly experienced set of panelists, we are lucky to have Professor Catherine A. Rogers as our keynote speaker.  Prof. Rogers—Professor of Law at Penn State Law and Professor of Ethics, Regulation, and the Rule of Law at Queen Mary University of London—has been among the most active thought leaders in the field of international arbitration in recent years and has received acclaim for her efforts to promote transparency and fairness in the arbitrator selection process through the use of her platform, Arbitrator Intelligence.

For those in the Philadelphia area on October 11, 2019, we invite you to attend this highly informative and interesting conference.  If you have any questions, please feel free to reach out to Zach Torres-Fowler at torresr@pepperlaw.com or Kim MacAlister at macalisterk@pepperlaw.com.  We hope to see you there.

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