Plus ca change...

David W Rivkin
Arbitration Chambers, New York
dwrivkin@arbchambers.com

As I look back on the programs for the first and second IBA International Arbitration Days, I am struck by how relevant the programs would remain today but also by how much the practice of international arbitration has changed. The programs focused on topics such as arbitrability, interim relief, hearing management, confidentiality, enforcement, costs and mediation. For each topic, common law and civil law practitioners gave their perspectives. These topics remain vitally important for the efficient and effective management of international arbitration today.  Indeed, controlling time and costs of international arbitration has emerged as perhaps the most important challenge facing international arbitration.

In 1997, however, we did not have the tools that arbitrators, counsel and parties can access today to facilitate the process. Since 1997, institutional and ad hoc rules have all been revised to provide more procedural flexibility and greater powers for arbitral tribunals to control the proceedings. New procedures such as emergency arbitration have been adopted. In 1997, arbitrators were reluctant to award summary judgment even when the case called for such a result, but now arbitration rules uniformly provide tribunals with the power to decide preliminary issues that may dispose of some or all of the case. To encourage the broader use of these powers, the IBA Arbitration Committee issued a report several years ago demonstrating that courts around the globe routinely enforce arbitration awards issued on this basis. I have taken that process a step further by proposing the Town Elder Rules for cases where deciding factual or legal issues in sequence could more efficiently decide the case. Thus, while the core issues remain similar to those discussed in 1997, arbitrators, counsel and parties are much more able to conduct arbitrations in an efficient manner that better serves the business purposes of the parties. 

The initial IBA International Arbitration Day in New York featured a keynote by a leading judge on the United States Court of Appeals for the Second Circuit. The interaction between courts and arbitral tribunals remains a critical issue in international arbitration. Fortunately, most courts around the world have remained respectful of international arbitration awards and have continued to limit their involvement in international arbitrations. Since 1997, however, there has been one major shift in the dynamic between courts and arbitration: the creation of international commercial courts. A recent conference included participants from more than 20 nations with international commercial courts, of which the Singapore International Commercial Court is perhaps the most prominent example. These courts generally offer panels of international judges and approachable procedures, so they are a viable alternative for many parties for efficient resolution of their disputes. Effective competition from these courts should further encourage international arbitration to become more efficient.

Thus, an international arbitration practitioner who attended the first IBA International Arbitration Day in 1997, but who fell into a magical sleep until 2024, would not be surprised by the discussions at our current IBA International Arbitration Days. He or she would, however, be pleased by the many strides we have made since then to improve international arbitration. It is incumbent on all of us to make arbitration in the 21st Century worthy of its name.