20 March 2018 | Joint UNCITRAL-LAC Conference on Dispute Settlement, Ljubljana, Slovenia
Conference for arbitrators, lawyers representing parties in arbitrations, in-house counsel, state officials and globally operating businesses.
This year the focus will be on:
Recent trends in the application of the New York Convention,
Role of arbitral tribunals in combatting economic crime in international arbitration,
Third party funding in international arbitration – reshaping the landscape of dispute resolution.
On the day following the conference (21 March 2018), the Ljubljana Willem C. Vis Pre-Moot will take place, which will be a good opportunity for the teams for one final practice before the Moot in Vienna.
"Corruption is a scourge of international trade that arbitrators are facing with increasing frequency, both in investment and commercial arbitration. In the aftermath of the OECD Convention and the numerous instruments that the international community has adopted in the fight against corruption, arbitrators are increasingly attune to the need to draw the consequences of a behaviour that is incompatible with international public policy."
"UNCITRAL’s Working Group on Investor-State Dispute Settlement Reform noted in its last session, that while Third Party Funding (TPF) broadens access to justice, it also raises concerns that deserve further consideration, such as costs, conflicts of interest, and the collection and enforcement of cost awards. I am therefore particularly pleased that the Joint UNCITRAL-LAC Conference will address TPF and am looking forward to the debate."
"Third party funding has joined traditional insurance in giving commercial parties access to arbitral justice. When a claim is supported by an insurer or a funder, an arbitrator should have confidence that it will not be frivolous and that it will be handled properly and efficiently. Will new and proposed regulations be helpful or will they discriminate against parties who use funding?"
Christian W. Konrad
"Where a society is crippled with corruption, the character of decision makers is put to the test. Arbitration practitioners have a unique chance to live up to the rightful expectation."
“Indications or allegations of economic crime raise various tricky procedural questions that arbitrators must be able to address effectively, reaching from the burden and standard of proof to the interplay between criminal and arbitral proceedings.”
"The year 2018 is dedicated to the 60th anniversary of the New York Convention, which is the most successful trade law convention with 157 member States and has contributed significantly to the widespread use of international commercial arbitration. This conference is one of the very first to celebrate this anniversary, before the Commission will do so at its annual session in June in New York at its 51st annual session. The New York Convention remains one of the most influential texts in the history of arbitration, and it continues to be a prominent instrument for discussion by both practitioners and academics alike."
“When dealing with allegations of corruption in the context of international arbitration, one of the most delicate tasks of the arbitrators is to determine which party bears the burden of proving the (in)existence of corruption, and to apply an appropriate standard of proof. Having in mind the well-known difficulties in proving elements of corruption, accompanied by the limited tools of arbitral tribunals for the investigation of facts, a standard of proof that is set too high can make it virtually impossible for a party to prove its allegations. On the other hand, even in commercial arbitration where private interests of the parties are at the forefront, mere rumours or innuendo should not suffice. Against this background, the key challenge is to determine the extent to which the nature of arbitration proceedings justifies lowering the bar below the standard of proof otherwise applicable in criminal proceedings.”
"The New York Convention is a key legal instrument for an arbitration practitioner: be it when drafting arbitration agreements, or when conducting the arbitration proceedings, or finally when enforcing / resisting enforcement of a foreign arbitral award. The New York Convention remains to be a compass for what may work and what will likely not work in international arbitration."
“Now that third-party funding has become part of the modern reality in international arbitration, tribunals routinely address issues arising from this practice, ranging from disclosure of funding arrangements to consequences for costs allocation. Are there any case management lessons to be drawn from the way these issues have been handled thus far?”
“Arbitral awards are enforced more quickly and simply than foreign court judgments. That is the achievement of the Convention. It is a cornerstone without which international arbitration would have remained a forum of secondary importance, for specialized disputes. And the Convention achieves its goals through a conceptual clarity that is surpassed only by the elusive simplicity of its wording – a model, perhaps, of international compromise.”
"Economic crime and corruption can have a destabilising effect not only on national economies but also erode the confidence in the rule of law. Such issues must be addressed properly and responsibly by arbitrators and counsel."
Aline Wey Speirs
"Third Party Funding is a financing tool available to parties who have a monetary claim of some significance against a solvent party. In arbitration the key questions to address are the potential conflict of interests which may undermine the proceeding, the extent and timing of disclosure of the funding arrangement and the effects on costs."
"The efficiency of the New York Convention lies beyond its scope and is the responsibility of the signatory states. The Slovenian Arbitration Act (2008) provides for an adequate system of recognition and enforcement of foreign arbitral awards in accordance with the Convention’s general standards."
“The Convention’s underlying principle, which set the path for international arbitration as a dispute resolution forum, is that foreign arbitral awards will not be discriminated and that they are to be recognized and enforced in the same way as domestic awards. Serbian legal system and court practice have been very liberal in terms of recognition and enforcement, making Serbia a rather friendly environment for commercial arbitration. However, the issue of efficiency of the court system and different defence mechanisms respondents have at their disposal to stall the enforcement greatly influence the overall fulfilment of goals set out in the Convention.”
"The New York Convention operates hand in hand with national law, as the recognition and enforcement of foreign arbitral awards are subject to the local procedural rules. On substance, national law becomes relevant when a specific matter is not expressly governed by the Convention or when the latter refers to national law on a particular issue. Finally, national law will supersede the Convention to the extent that the former is more favourable than the latter. The harmonization of national laws with the Convention further adds to its efficiency and importance as a key instrument in international commercial arbitration."
"In light of the upcoming final report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, we have prepared a stimulating afternoon session on the current developments of third party funding. The roundtable will provide a 360 degree scrutiny of intricate issues of third party funding and consider whether and how principles of best practice can evolve in the industry."
"The New York Convention is certainly among the most successful conventions in the whole system of legal instruments under auspices of the United Nations. It has demonstrated that global harmonization of private and procedural law is feasible and desirable. Yet, even though the Convention itself is upheld by the large majority of civilized states, there is still a lot to be done with regard to harmonization in its practical implementation."
“The recognition and enforcement of foreign judgments constitute the ultimate test for a nation’s adherence to international comity and the rule of law. The Convention’s contribution to increasing trust and confidence of international commerce in the system of international arbitration cannot be overstated. Simply avoiding or ignoring an arbitral award has become unsustainable for any company that wants to remain in international business.”
“TPLF not only ensures access to justice for impecunious claimants but also serves as risk diversification and optimal management instrument for corporations: it takes the disputes and enforcement management out of their hands, with interests aligned towards the optimal pursuit of the recovery.”