Identifying the seat of arbitration, the home legal system, is one of the most important features of an arbitration clause, writes Professor Janet Walker C.Arb. It sets the framework for the law governing the arbitration procedure and more importantly, the process and rights relating to the enforcement of the arbitral award. With many places around the world now vying to be the seat of choice for commercial arbitrations, what comprises a ‘safe’ seat and how can one be distinguished from the other?
The “seat” or “place” of the arbitration has long been recognized as far more than a place where the main evidentiary hearing might be held. Indeed, in many arbitrations, procedural meetings are often held remotely or in places other than the seat where this is more convenient to the parties and the tribunal. Still, it is now widely accepted that the choice of seat has a range of potentially significant implications for supporting – or undermining – the effective and efficient conduct of the arbitration and the enforceability of the award.
The options for effective seats were once limited with contracting parties selecting from among a few cities in Europe, but in recent years, many alternatives have emerged and all cities seem keen to compete for arbitrations. With this expanded range of choices, and growing awareness of the importance of careful selection of a seat, the question for commercial parties is how to identify and evaluate the seats best able to support the arbitrations that might be needed in their business relationships.
In 2015, for the Chartered Institute of Arbitrators’ (CIArb) centenary year, a working group led by Lord Peter Goldsmith QC and CIArb Companion Professor Doug Jones AO, developed a series of ten principles (“London Principles”) comprising the elements of a safe seat for international arbitrations. The working group included Judith Gill QC, Julian Lew QC, Constantine Partasides QC, Karyl Nairn QC, Toby Landau QC, Sir Vivian Ramsay, Wendy Miles QC, Peter Rees QC, Maxi Scherer and Audley Sheppard QC.
The Principles were developed to provide a balanced and independent basis for the assessment of existing seats and to encourage the development of new seats.
The “London principles” comprise ten elements:
- an arbitration law providing a good framework for the process, limiting court intervention, and striking the right balance between confidentiality and transparency
- an independent, competent and efficient judiciary
- an independent, competent legal profession with expertise in international arbitration
- a sound legal education system; the right to choose one’s legal representative, local or foreign
- ready access to the country for witnesses and counsel and a safe environment for participants and their documents
- good logistical support, including transcription, hearing rooms, document handling, and translation
- professional norms embracing a diversity of legal and cultural traditions, and ethical principles governing arbitrators and counsel
- well-functioning venues for hearings and other meetings
- adherence to treaties for the recognition and enforcement of foreign awards and arbitration agreements
- immunity for arbitrators from civil liability for anything done or omitted to be done in good faith as an
Using the London Principles as a framework, efforts are now under way to build an accessible body of information on which to base a balanced assessment of potential seats. An index of the world’s arbitral seats is being introduced.
Based on submissions by the arbitration community identifying the key features and notable developments that define a seat’s desirability in terms of the London Principles, it will take a form similar to the country credit rating system to make it user-friendly. Seats will receive ratings ranging from ‘AAA- Highly desirable’ through ‘BBB – Reliably supportive of the process and the result’ and CCC – ‘Some risk to the process and/or the result’ to ‘D – Not recommendable’.
Ratings will be decided initially by an assessment panel convened by Professor Janet Walker, C.Arb and chaired by Lord Goldsmith QC and Professor Jones AO. The panel will include: Francisco González de Cossío (México), Daniel Kalderimis (Wellington), Sae Youn Kim (Seoul), Lawrence Schaner (Chicago) and Nathalie Voser (Zürich). The panel’s confidential report will serve as the basis for the final determination of the results by the co-chairs.
Further discussion on this will take place at CIArb’s international arbitration conference in Paris on 7-8 December 2017. The two-day conference will showcase lectures and panel discussions led by experts from across the world and will examine numerous issues in relation to the synergy and divergence between civil law and common law in international arbitration. Speakers include Professor Dr Nayla Comair-Obeid C.Arb; President of CIArb, Lord Keen of Elie QC, Lord Peter Goldsmith QC PC, Lord Neuberger of Abbotsbury and Judge Dominique Hascher. Places are limited. To book please visit the CIArb website.