 Good morning, everyone. Welcome back. My name is Inya. I'm part of the Arbitration Day Organizations Committee. I'm just here to introduce our Commercial Arbitration panel. So in line with the theme today, which was Winds of Change, our Commercial Arbitration panel goes from commercial arbitration, where it is headed. And we're very fortunate to have Professor Susan Sellis here to moderate our panel. Professor Susan Sellis is Professor at the Queen Mary University of London. He is a member of the Center for Commercial Law Studies and the director of the School of International Arbitration. Professor Miss Sellis, I'm meeting Professor Tengu. Thank you very much. So good morning, everyone. It's admirable that people would come suddenly to hear about our creation, but are satisfied about where the film is moving. Just as I was writing today, I had a short chat with Richard Fenningham, who has addressed you earlier this morning, and who somebody I've known from perhaps the last 15, five, or not six, but who I've known for the last year. And the very title of the Game of Transportation Day today, The Winds of Change, reminded me very much of a song by Scott Jackson. And if you remember that song, you would remember that it goes back to the 1980s, when the weather winds were chained and winds were chained around Europe with sort of the collapse of the Soviet Union. That perhaps was something arguably positive that comes up, something from arguably negative, I'm using the terms loosely here. And the question is whether we have a situation where we have something positive coming out or something negative coming out, so it's not important. And a lot of discussion has been had in the last five years about the golden year of creation. And perhaps in this period of alternative facts and fake news, it is in my position that we are perhaps in the post-golden era of creation, if the golden era perhaps was highlighted best by the New York Convention and creating a resume because it's entirely perceived to be and fairly uncomplicated in terms of regulation. So my panel, which to some extent resembles an idea panel, which is a hot topic, so more than one, is that a smorgasbord would be going to find some benesons or rain gear, perhaps we have some care and not going to be saying what is wrong. But that perhaps would be an emergency discussion and we might not know that. But I have four excellent speakers for you to address the topics in the order of the discussion, of the program. The whole time of World War II, we introduced some very, very briefly that each of them could introduce the topic and one we have all the topics introduced, then we have a discussion for all of us to get us perhaps the fairest way to give all of them more or less equal sort of care back. And I'm not going to be interfering in the session with tweets or any other Instagrams or the comments. I will leave that to the discussion as important to be. The first we will go first, Duncan Spender is inspired with now a partner with William and Jane and has a wealth of experience in litigation and arbitration. One of the very interesting things that Council of G.C.P. is that he speaks Japanese. So, when you are. So, here it is. But you've run a test in Japan for a while, but you were able to make use of the topic and indeed make use of the word. The word of the addicts of Council in the National Investigation and Elite Regulation and then you can do it. The second person to go is Richard Smith. Better to my right, not every other thing, I think. There's a question of due process and how has that been used more of the sort of received. I think we may have to take some of this because we don't want to face the possibility of paranoia. And it's been taken through our 2015 survey and it's been taken by a number of speeches by Lucie Lee, Fernando Caladas and many others. So, Richard who has also a knowledge of insurance of his speech experience and does not speak Japanese as far as I can tell. For any of the others of those specific languages he stays in the, so we call it in English, we'll address the topic. And the third person to address you is going to be speaking about third parties. And that is Marco de Sousa, a lawyer with Herbert Smith Freakings. I don't know if I have to say Richard is without a lawyer, I should say that. So Marco is with Herbert Smith Freakings and has practiced in various offices of the firm including Dubai and Hong Kong and he's actually going, it can be described, so it is kind of common to address you on this part of the topic. Again third parties is talking about this, being discussed a bit, but there's always new issues coming out in many of these issues including this, we have a common duty perhaps here. So last, not least, Roland Zia-Dev from Nick Plakers of the last three years but also from the very prominent terms before. He would be addressing the innovation that has come through the measures to the expedite procedures. Something that has been again coming up as a discussion that the innovation perhaps being tenured made for medium-sized disputes, not being very good in smaller cases, perhaps not being very good in bigger cases, but similar cases. So he will address how integration, inclusion and innovation of the windows respond to the questions and again something with a lot of experience and a member of the SSEC course where we give us quite a bit of insight. So I will give the floor, we'll go over from speaker to speaker and we'll come back for the discussion. So thank you. Good morning everyone. It's a pleasure to be here. Thanks very much to the organizers for organizing such an interesting theme, The Winds of Change. I'm going to address the topic of the ethics of international arbitration and whether there's a need for regulation. Implicity in that question is an assumption that there's not regulation at the moment and on that view, opinions within the international arbitration community differ widely. On the one hand, you have people like Catherine Rogers who described arbitration as ethical no man's land. On the other hand, Gary Born has likened the profusion of regulation in arbitration to a teenager's bedroom which connotes all sorts of disorder or a Rubik's cube of different ethical regulations. So I'm going to tackle the question briefly in four stages. Firstly, why are you concerned about this issue? Why do ethics matter in international arbitration? Secondly, what tools do we already have? Thirdly, what new tools could be used? What are the options in terms of future directions that international arbitration could take? And fourthly, what is the way forward? And my conclusion will be that tribunals already have the tools we need to ensure that international arbitration is conducted ethically and fairly that the future lies in not creating new tools but already using the tools we already have. And I'm going to conclude by introducing briefly five guidelines that might assist tribunals and parties to use the procedures that are already there to ensure that arbitration is conducted as ethically and fairly as possible. So thirdly, why are we concerned about ethics? Well, arbitration is a rules-based process and therefore people should play by the rules. Secondly, there's importance to consistency and transparency and ethics are about ensuring that there is a level playing field in international arbitration. And there is an importance in preserving the integrity of the process and preserving respect of the process in ensuring that we're not playing on a field like that but rather on a level playing field. And this issue comes up in practice in a number of areas where there are potentially quite different views as to what is ethical practice. One area that comes up a lot is witness preparation. In many, in some jurisdictions, including the United States, it's commonplace to prepare witnesses, including by conducting mock cross-examination. Under the English Fire Council rules, it's prohibited to conduct a mock cross-examination on the basis that that is leading the witness to prepare their answers and depart from what may be truthful testimony. There are also broad differences in terms of disclosure and other obligations to produce documents. Many English lawyers will be used to the notion that they have an ethical obligation to provide material documents to the court or the decision maker. Conversely, civil lawyers may consider that they have a duty not to turn over unlawful documents. So there are two quite different standards there. Standards also differ, for example, on whether there should be ex parte communications to the tribunal. In many jurisdictions, the notion that there should be ex parte communications is frowned upon. In China and some jurisdictions where it's expected that other traders play a more active role in promoting settlement, ex parte communications are more commonplace. So what tools do we already have? On the one hand, there's a lack of an overarching set of ethical guidelines. The European Council of Barre Organisations has produced a code of conducts, it's fairly circular and it says that the lawyer must comply with the rules of conduct of the court or tribunal they appeared before, which essentially directs you back to a set percent of rules. But on the other hand, and this links to my key theme, the tribunal under most sets of institutional rules has a very broad discretion to adopt procedures to suit the particular circumstances of the case. And that is one of the great benefits of arbitration, that there's not a rigid set of rules that arbitrators have the discretion and the flexibility to adopt a set of rules that is most suited to the particular case. The LCIA rules, for example, refer to the tribunal having the widest discretion to adopt procedures suitable to the circumstances of the arbitration. And the tribunal can back that up with sanctions that the tribunal can take into account the party's conduct in the awarded costs. We see similar provisions under the OCC rules. Ethics has been a hot topic in international arbitration and new tools have emerged. In 2013, the International Bar Association published guidelines on party representation that address many of the sorts of ethical dilemmas we touched on before, such as whether there should be ex parte communications, the duty of counsel with respect to the preparation of witness testimony. These guidelines are not intended to replace national ethical guidelines, but rather to supplement them and the parties can either opt into them by agreement or the tribunal can incorporate them by reference. The LCIA rules have recently been amended to introduce at annex one a set of ethical guidelines that apply in LCIA arbitration. So these guidelines again address issues such as the duty of counsel with respect to disclosure, to not deliberately misleading the tribunal and ex parte communications. And again, they don't replace national ethical standards but are intended to supplement them. And the ICC just this year has produced a note to parties and tribunals, which again addresses the expectation that tribunals that the parties and their counsel will abide by the highest standards of integrity. So we already have a broad armory of tools to ensure ethical conduct in international arbitration, but what other options are there? And a number of options have been raised by different people. Elliot Geisinger, the President of the Swiss Arbitration Association has proposed a global ethics council that would consist of members of different arbitral bodies and there would be an overarching regulatory body to which arbitration council would subscribe. That is one way of putting a super national regulatory body. There seems to be limited appetite for that at this stage. Another option would be that arbitral institutions adopt code of conduct, codes of conduct, but to some extent the LCIA has done that with the annex included in the LCIA arbitration rules. But the risk in that is a fragmentation of different standards being applied by different arbitral institutions. A third option would be to have codes of conduct as part of national law at the seat. And this has been proposed by Jane Wessel and others, but that is a national solution to an international problem and creates a risk, again, of different standards and therefore a lack of uniformity. So in conclusion, what is the way forward? I think the way forward is more proactive use of the tools that tribunals already have. Tribunals already have the discretion and the power to adopt procedures suitable to the government. In the case, that can include addressing ethical issues, such as to what extent it's appropriate for council to be engaged in movement's preparation, such as the duties of parties and council with respect to disclosure, such as whether it's ever appropriate to have this party communications. All these are issues that tribunals can address transparently as part of their procedural orders and as to which tribunals already have the power and ability to put in place clear guidelines. And I think in the application of the tools we already have, perhaps five guidelines are useful for tribunals and council to bear in mind. I think the first guideline is that all this debate about ethics is very useful in that it ensures that tribunals are conscious of these issues and address them. Secondly, tribunals should seek to level the playing field. Where there are potential differences in approach between council, tribunals should be sensitive to that and potentially give clear rules that level the playing field. Thirdly, there should be transparency. And I think tribunals can address these issues transparently as part of the procedural order. Fourthly and fundamentally, no council should be compelled to do anything but is contrary to the ethical rules that apply to them. But fifthly, in the interest of ensuring a level playing field, tribunals can supplement those duties and impose additional duties that do help level the playing field. So to conclude, before we think about giving the teenage and new toys, let's tidy the bedroom. One of the great things about tidying the bedroom is that you find things you never realize you've had. Maybe now is the chance for us to find the powers that the tribunal has to address these issues. Thank you very much. I don't speak Japanese. More do I have proficiency in power play, so I've just got my voice. The subject I'm introducing this morning, which will hopefully lead to some debate shortly, is the increasing use of due process as a sword and not a shield. Now, when swords and shields are mentioned, many people might think perhaps of game of thrones. I haven't seen it and that's why I wasn't invited to the event yesterday, but I'm told it's very grippy. To the English lawyers in the room, swords and shields might lead them to think about contract law and principles and stuff. To English lawyers, like me, who practice insurance, I must confess a thought or two towards common interest privilege, where Donald Trump in the room, I think he might be sad. But a sword might not be brought to conjure up associations with due process, unless perhaps you've just been charged with possession of the pencil of the sword. However, there is a discernible trend in commercial arbitration, anecdotal perhaps, but reported increasingly, the smartness of our invoking due process complaints to press arbitral tribunals to make procedural decisions in their favor. It could be that party A needs more time to file a pre-hearing brief and that puts the hearing objective. Party B may want to amend its case very late in the day to add a clause of action, or party C may want to lob in a witness statement at the 11th hour addressing facts which their opponents haven't had an opportunity to consider. Now, there's nothing particularly new in any of these procedural shenanigans. Save perhaps an increasingly insidious undercurrent flowing beneath the requests for the tribunal's indulgence and the responses from the other party to those requests. Parties A, B and C will say that unless they're allowed to do what they want and what they've asked of the tribunal, their due process rights will have been curtailed. That complaint is often accompanied by a reservation of rights. The other party may say that due process rights of his own will be infringed if the tribunal goes along with those requests. And the unsubtle subtext to all of this is that if you don't give me what I want, I will challenge the tribunal for any award it might ultimately render on due process grounds. So, like the child craving sweets, make as much noise as you can and maybe you'll get procedurally at least what you demand. And even individually, a single complaint might not invoke due process complaints accumulating enough examples much else it is thought to balance. Well, how real is that threat? Or in Game of Thrones, should our true tribunal feel under siege? In my view, they shouldn't. For most procedural decisions, the laws of the parties have been allowed to express their view as to which way the tribunal should jump. The norms of due process will rarely ever be engaged, let alone take. And that's because due process is concerned with overarching basic principles for fence. It doesn't provide guidelines for the exercise of the tribunal's procedural discretion. First, the tribunals must begin to notice what the case being passed against them, but that's usually achieved very simply through a notice of arbitration and the submission which followed. Secondly, parties are entitled to equal treatment, but unequal treatment doesn't follow just because of that first procedural decision. Nor indeed without more can such decision be said to render a tribunal partial. Fourth, and this is perhaps the limb where you see most due process complaints being invoked in the procedural context, tribunals are required to allow parties a fair opportunity to present their case and to respond to that of the other parties, including at a hearing if the parties want one. And as I say, that's perhaps the most home-used or cliched basis for due process complaints. But the right to a fair opportunity to present a case does not allow a party to dictate the manner in which that is to be achieved, or the preventable party deciding to steer its own procedural course. Forgive me for being a little parochial for one moment, but if you look at what the English 1996 arbitration act says, the tribunal's general duty is to provide a reasonable opportunity to put in their case. And that's mirrored with reasonable language and the tribunal's control of the ICC, the LCA, and other rules. And in giving that part of the party is that reasonable opportunity, the tribunal is also required as part of its general duty to have regard, considerations of cost and delay, so procedural efficiency factors and all that as well. And the tribunal has a broad range of powers. And under the relevant institutional rules or the unconstitutional rules, for example, it has considerable discretion in how those powers are to be exercised. And then if you take it a step further, when it comes to the limited circumstances in which, again, I'll hear a little parochial, the English courts will review arbitration awards on grounds of serious procedural irregularity and how narrowly the courts approach such challenges and tribunals unlikely to be criticized for making procedural decisions which falls within its power. And likewise, challenges under the two enforcement of the New York Convention are similarly difficult because the due process issues there with which the courts enforcing laws are concerned is whether the parties have noticed the proceedings and whether they were able to present their case. The convention is not concerned with the usual procedural discourages that you see in arbitration. So that's not to say that procedural decisions never engage considerations due process. So for example, an expedited procedural timetable in arbitration is one thing and many is the time I've had a judge or an arbitrage to say to me, but surely, Mr. Smith, with the ample resources of our own overage before telling me I can do what he's asking me to do in a week. That's one thing. But in certain circumstances, at imposing a timetable which is simply impossible, and I've seen it impossible with how this could engage due process requirements. In fact, more obviously, where a tribunal doesn't give notice to the hearing of one of the parties or proceeds with the hearing when a witness has a genuine inability to attend and has the opportunity to put his case. And more obviously still, where an arbitration makes comments which suggests that he or she is by experience one of the parties. But those are rare events and perhaps not really concerned with the use of tunes and proteins where some parties are describing more significance from a due process perspective than it wanted to. So if, in a sense, there's not much to the point, why then is there an increasing threat of sorts of clashes? Or put more bluntly, who's to blame? Well, if a blame again is to be blamed, yes, there are some unnecessarily aggressive parties who at any opportunity will pray in a due process to make a procedural claim. Sometimes you will find a genuine clash of different cultural expectations as to the significance of matters procedural. And on occasion, you do find tribunals which frankly could afford to be more forceful or robust in their approach. However, to my mind, the problem is more de-routed than the idiosyncrasies of the parties involved and the players involved. In my view, the commoditization of arbitration has given parties a greater sense of entitlement when it finds a procedural matter. Now what do I mean by that? Well, although each arbitration is unique, a practice has grown up by which most cases follow a fairly standard pattern. There will often be a case management conference at the start of a case, usually preceded though by the circulation of procedural order containing standard steps with which, frankly, the party's up to liberty and which the tribunals are often willing to endorse. So at the early stage of the process, there may be very little scrutiny by the parties in the tribunal of what procedural steps are actually required for this case as opposed to what's gone before another case and with which everyone feels generally comfortable. Those steps include the service of a memorial often by the blame or the by-response encounter memorial from the respondent setting out in elaborate detail the legal and factual arguments relied on by the parties, accompanied by all the evidence, the authorities and exhibiting the luminous documentation and these memorials are often fairly impenetrable and the documents themselves run into hundreds of pages which sometimes you wonder if tribunals actually really need. Then you have disclosure, usually under the IPA rules, often without consideration as to whether you actually need disclosure at all in this case or if you do it in what areas you need it. And frankly, I've never found a smoking document in a case and the use of this disclosure in my perspective tends to be filling the gaps the experts need in cases to crystallise their thinking. However, by the disclosure stage, we've already had one round of expensive experts reports sometimes being completed. And then following disclosure, we have another round memorials, a reply and rejoinder often equally long and in penny falls, the first round, but perhaps expert aspects of heart haven't really taken the case that much further. And in both parties before the hearing, they have a chance to serve a free hearing group, perhaps equally lengthy and at least if you've only recently served your rejoinder again, not adding much to what's gone before. Then you have the hearing, which depending upon the issues in play, can actually be relatively short, which forces the parties to compress their oral submissions and their witness examination into a limited period. I think that elevates the significance of those written submissions which have gone before, trying to ensure that you at least make your points which you can't make a hearing somewhere. And you may have oral closings, followed or preceded by the written post-hearing briefs, providing another lengthy and expensive opportunity to regurgitate the case, albeit now with the benefit of the oral evidence that has been recently heard. Sometimes you can have reply post-hearing briefs, and you may have separate cost submissions and reply cost submissions. And finally, once the tribunal has wedded through all that material and the transcripts, you may get an award. What is the point I'm making in all of this? Well, in the process I've just described, I think there are far too many opportunities to present your case and to reply to that of your opponents. Against that background, parties increasingly feel they have a right to make their point repeatedly, such that any attempts by the tribunal to keep their extensive and frankly expensive memorials to prescribe time limits or prevent new arguments or claims, being raised late in the day or stopping new evidence being thrown in are now said to represent an interference with their due process for us. And if the tribunal exceeds to those maneuverings, the other side would make the same complaint, saying, well, hang on a minute, I'm excited to respond to that. And they always want the last to work. Although greater emphasis has been placed on case management and arbitration in recent years, including by the article institutions, the focus is often on, I'm going to have an early hearing when is the award going to be made? I suggest it's time that parties and party members look more critically at free trial steps and rein in the number of bites of the charity. It may not prevent these procedures, but it may manage expectations as to what is genuinely needed to allow a party to present its case and to temper the increasing and frankly unwarranted use of due process as a source. It might also make matters a bit cheaper. Thank you. Good morning, everyone, and thank you for having me here today. I visited my home here not too long ago, so it's great to be back in English and use the extra calls again so soon. This morning, I'll be introducing the topic of third parties in commercial arbitration. And like Richard, I've sterned the traditional power quick presentation so you'll just be stuck with me for the next three minutes. Now, in a way, you might say that it's antithetical to talk about third parties in international commercial arbitration because it's in some ways sort of a paradigm of a private consensual dispute resolution mechanism. So, of course, the jurisdiction of the tribunal is limited to the parties to the arbitration agreement. The proceedings generally take place in private and the award only binds the parties to the proceedings. So it seems at first glance that there is very limited scope for involvement of third parties in the process. It's not like, for example, investment treaty arbitration where there is a more obviously public amendment to the process. Investment treaty tribunals are, of course, routinely called on to scrutinise the exercise of public power by states and the effect of their awards is often felt far beyond the immediate parties to dispute. So we see more obvious of these third-party involvement in that sphere and we see, of course, moves to increase the transparency of the investment treaty proceedings with use of anti-curial and other such mechanisms. But, of course, private commercial disputes are becoming a little more complex and commercial arbitration must adapt, must evolve to meet that complexity. In part, I think this means admitting a greater degree of third-party involvement in the process than was traditionally the case. So we're seeing, of course, developments in the power of tribunals to consolidate proceedings, to join non-signatories to an arbitration agreement to the proceedings and to exercise other case management powers to make complex, multi-party and multi-contract arbitrations more efficient. But I would say this has been a gradual process of evolution. It's a case I think of two steps forward and one step back. So those joined during consolidation mechanisms that are now commonplace in most institutional rules still depend to a very great degree on the consent of the parties. And, of course, domestic courts are still more nimble and have greater reach when it comes to building into a relief to validate third parties. So that's very much the theme of my talk today, this idea of gradual evolution of two steps forward and one step back. And I should say at the outset that I think that this is no bad thing. Commercial arbitration shouldn't forget its pedigree as a private and consensual dispute resolution of mechanism. Those features of the process are still some of its greatest strengths. And clients, there are features that clients actively seek out when they choose to submit their dispute to arbitration on sending them to the courts. So they shouldn't be discarded as commercial arbitration evolves. Now, the issue of third parties in commercial arbitration is a multi-faceted one. I don't have the time today to cover them all. So I'm going to cover three discrete topics in broad outline. I'll take first what we might call the two steps forward. I'll discuss the increasing acceptance of third party funding in arbitration and groups by some tribunals and courts and some jurisdictions to expand the scope of the arbitration agreement to catch non-signatories. I'll then discuss what we might, perhaps unfairly, call the one step back and that's the continuing limitation of the power of tribunals to avoid intra-enrief against third parties. So taking first third party funding, I'm sure we all know what it is, it pretty much does what it says on the tin. It's essentially an arrangement where an entity that is not formally a party to the proceedings covers the leave of another process of one of the parties in exchange for an agreed return. That return usually links to the amount of damages or a cut of the damage of the work to the funded party and that means usually funding available only to claimants or to respondents that counter-pay us. Now financing is usually provided by the expression of third party funders but as the market becomes more established, other players are entering banks, insurance companies and some places even law firms. Now for a long time, this sort of arrangement was barred under the old common law talks of champion maintenance. It's now permitted in a number of jurisdictions, the US, the UK, Germany and most recently, the Philippines and Asia. So legislation came into force earlier this month in Singapore, preventing third party funding international arbitration there and legislation is in process in Hong Kong to do the same there. Now there are of course a broad range of potential benefits to third party funding arrangement, perhaps most notably, it's that where a party that has a good claim because of limited means, funding may help them to actually advance that claim. But for commercial parties, of course, it can be useful in freeing up cash that would otherwise have been demoted to funding in arbitration proceedings. It also has, I think, presentational benefits in that most funders are really quite picky about the claims that they choose to fund. It is after all an investment and they're expecting a return. And so funders will engage in a pretty comprehensive process of analyzing the merits of the case, often engaging external counsel to do so and will only fund the claim that they think has a good prospect of success. So the presence of a funder can act as something of a voting confidence for a claim and can be a factor in encouraging settlement. Now the jurisdiction of the adopted third party funding in many cases recognized these benefits. And so the support of the Hong Kong Law Reform Commission that recommended allowing third party funding in Hong Kong suggested that the form in this area was necessary to maintain and enhance Hong Kong's competitive position as a regional and cultural center. With the course of third party funding also throws out a number of potential stormy issues in the artful context. Funders of course will want to keep a close eye on how proceedings are developing and there will be duties of disclosure from the funded party that may test the traditional duties of confidentiality in commercial proceedings. Conflicts of interest is another potential issue. As the market develops and becomes more mature funds will get a closer relationship with law firms, tribunals and parties and therefore become another potential source of conflict. Now some jurisdictions and some institutional rules have addressed this concern by requiring the funded party to disclose the existence of the funding arrangement. And this certainly was the recommendation of the Law Reform Commission in Hong Kong in the legislation there. And of course some provisions put into the of course recent iteration of the IVA by Alliance on Conflicts of Interest requiring disclosure in certain circumstances. The existence of a funding relationship may also affect whether it's appropriate to award security costs in an application sorry, in an arbitration. The obvious argument open to a respondent of course is that a funded payment is an ingenious payment and that of course is not always the case but you often see issues of disclosure of funding arrangements coming up in the context of applications for security costs. It also raises questions about the allocation of costs in an arbitration and the recoverability of costs of funding or putting funding in place which can be substantial. Now for my part, I don't see that the existence of a funding should alter ultimately the tribunal's discretion to award costs in a matter. And I see no return to having those costs be recoverable and though certain tribunals have taken that view and those costs orders have been awarded in an apparel for the English reports. There's a question there as well of course about whether tribunals should be able to make orders for security for costs against the fund themselves or order the funder to pay costs where the funded party is unsuccessful. And the argument running back an unsuccessful funded party the funder should put out those costs to avoid refrigeration claims. Of course in practice, this is usually dealt with in the funding agreement. And despite these thought and issues I think it's fair to say that third party funding seems to be a firm fixture on the horizon of commercial arbitration and for many reasons a good one. My second and sort of broad topic and another recent trend is the one of potentially expanding the scope of the arbitration agreement to cover non-sipping trees. Now this can arise in sort of two broad circumstances. The first where the additional party themselves wants to be joined to the proceedings for some reason. And the second where that additional party resists the order for various reasons. Now the techniques that tribunals can available to them to address those two scenarios are quite different. But I think perhaps at the outset I should clarify that perhaps it's disingenuous to talk about this as an issue of their parties because in reality the decision of courts and tribunals in this area is one of attempting simply to discern the proper scope of the consent to our approach. And so perhaps it's better to talk about rather than third parties you might say less than obvious parties. So consent remains the touchstone here and rightly so. So the first of those scenarios where the additional party wants to join the court is now dealt with under the joining provisions that is complex in most institutional rules. And again of course those provisions usually require the consent of all of the parties before a new party can join the proceedings. The else I able to perhaps to be outlier there in that they require the consent of new parties or clients for joining that and the additional party. So you may have a situation where a tribunal joins the party over the head of objections for another parties. The trickier scenario of course is where the party sought to join resists during that. Now tribunals have available to them a wide spectrum of sometimes obscure legal doctrines to deal with this. Parent agency is one piercing the court with bail or another essentially where entity is interposed to shield the truth principle from the effect of the treason agreement. A group of companies doctrine is popular and civil systems and is a stockpile. It's difficult to know how frequently these strategies are successful because of the falsity of the falsity of our short decision. But I don't know and suggest that tribunals rightfully and mindfully remain in a certain respect about joining non-concepting parties to the amount of treason. And the risk of course of doing so and getting it wrong is that the course of the seat or the place of enforcement may disagree and the award that sets aside for enforcement is refused. And the ambassador of liver and other type cases of their portion retails for that. So of course I would say commercial tribunals have at their disposal the tools necessary to be as nimble as the medical courts in their jurisdictional reach but always constrained properly I say by this notion of consent. Now finding and very briefly the one step back if you will and that is the limited power of tribunals to award interrelief against their parties. Now of course there's no question that tribunals generally can award interrelief against parties to proceedings and establish powers that affect in most constitutional rules. But of course tribunals can't extend their reach to third parties and this issue obviously arises where relief is sought to preserve evidence or to freeze assets that are held by a third party usually a bank. And in those circumstances parties must look to national courts for that sort of relief. So in England for example that power was given to the courts under section 44 the arbitration act. Now that notation is in my view understandable and defensible. The consensual basis of arbitration must result in some of them to be imposed on the reach of tribunals and this I think is a coherent one. And of course what makes or part of what makes an arbitration as a jurisdiction arbitration friendly or as a terrible phrase I think is the existence of a reliable and efficient court system that's able to act in support of arbitration proceedings when necessary. And it's nothing especially regressive in that sort of similarities. So to sum up, I think it's a story of gradual evolution. Consent of the parties and the limitations that that impose remains, it is here to stay I would say. So third party involvement I think you can say remains firmly on the radar and in areas of watch going forward. Thank you. Thank you ladies and gentlemen, dear friends and colleagues. The subject of expedited arbitration rule is the hot topic in the life of the recent launch of the ICC expedited rule which came into force on the first march of this year, IE, less than two weeks ago. Why the development of expedited proceedings now? The need for expedited rules come from the arbitral constitution firm commitment to reduce cost and promote efficiency of arbitration proceeding in light of the critics taking that arbitration has become more and more like I would say common road litigation with fancy discovery proceeding and lengthy hearing processing partner. And announcing unreasonable delay in the rendering of arbitral laws. The institution have also noticed the existence of I would say a relatively significant number of small claims. For instance, the ICC statistic indicated that in certain years almost one third of the claims submitted to the ICC were for a non-equal to two million US dollar or less. Moreover, surveys have revealed the user's demand for simplified procedures in institution for smaller value claims. For instance, one of the latest Queen Mary survey revealed that 92% of respondents favored inclusion of simplified procedure in institution for claim under a certain value. In light of this, most of the major arbitral institutions have implemented expedited procedure. The SEC, the CI, the Singapore International Artificial Center, the Hong Kong International Artificial Center, ICDR, Seattle to name a few. The ICC is the latest institution to do so. The SEC has even a separate set of arbitration rules for expedited proceeding. The expedited rules of different institutions have a number I would say of common features, but they also differ in certain respects in particular as to whether they apply by default or an expression option of the parties. I will explain briefly how expedited rules were and their common features among different institutions before discussing in more detail the more distinct which are potentially most controversial also features of the new ICC expedited rules. Expedited rules generally apply to smaller claims and provide for tribunal composed of the sole arbitrator. Most expedited rules are applicable to dispute up to a certain specified monetary cap. For example, the expedited rules of the Hong Kong International Artificial Center and the CI, Singapore International Arbitration Center apply if the amount in dispute does not exceed respected in three or four million U.S. dollar and if the party so agree or in the event of an emergency. The ICC expedited rules which apply to arbitration agreement as I mentioned entered after the first March of this year follow the majority trend as to the monetary cap as they apply for arbitration proceeding where the amount in dispute do not exceed two million U.S. dollar. However, the parties may agree to opt out of this aspect of the ICC rules in their arbitration agreement for their after and even when they haven't the ICC court may decide, may decide in life of the circumstances of a particular dispute once it has arisen that such dispute is not appropriate for expedited proceedings. Revised ICC rules also permit the party to agree to opt in to the application of the expedited rules with respect to a dispute even if the amount in dispute is higher than the two million U.S. dollar left. The fact that the ICC making expedited rules available for higher value dispute shows its determination to promote greater efficiency of proceeding in general and not only necessarily for small claims. A key feature of all major institution expedited rules is that the case is normally referred to as sole arbitrator. The ICC expedited rules provides in this regard and I call the court may not be spending any contrary provision of the arbitration agreement and this is very important upon the sole arbitrator and the court. I will discuss this in more detail later on as it is, I would say, quite bold and controversial feature of the ICC expedited proceedings. For the arbitrarian procedure to infer the expedited, the various rules provide for a number of, I would say, streamlined features. For instance, under the ICC expedited rules no term of preference are required and the most expedited rules, the arbitrar agreement is expressly given discretion to decide not to allow requests for production of documents, to limit the number, length and scope of written submissions and to decide not to hold a hearing. This is however not the case for instance under the Swiss rule if a party requests a hearing. All the tribunals I submit have generally a similar degree of discretion under the standard rule with the exception of not holding a hearing if a party requests so. The provision of the expedited rules are intended to further encourage very active case management to ensure efficiency of the process. Most expedited rules provide that while the tribunal, the arbitrarian award has to be reasoned, this may be done, I would say, in a short and relative summary way. For example, the ICC note to the parties and tribunal mentioned that the tribunal in expedited proceedings may state the reason of the award in an accord as concise a passion as possible end of court. The SCC, expedited rules and so on, go so far, so even further, as to make the requirement of a reasoned award merely optional. To streamline proceedings, expedited rules also provide for tighter time limits to render the award. There is clearly a greater expectation that the time limit will be effectively complied with and that the award will be rendered within, for instance, six months time frame with no need of extension under the expedited rules. The ICC expedited rules specify that the tribunal is obliged to render its award within six months from the case management conference, which in turn must be held within 15 days of the tribunal receiving the file. The expedited rules of some other institution calculate the time limit for rendering the award from the date of the constitution of the overall tribunal, with the award usually rendered within six months of that date. The SCC award must be rendered within three months of the date when the case is referred to the SOAR arbitrator. The ICDR takes a somewhat different approach providing that the award in expedited proceedings must be rendered within 30 days of the closing hearing or the final written submission. The new ICC expedited rules has other rules nevertheless include some safeguards to provide the preserved flexibility of the proceedings. The extension of time may be rendered further to reason request by party or on the tribunal's own user request. In addition, I know that ICC award remains subject to the scrutiny of the ICC court just like other ICC awards. This valuable helva of the ICC arbitration which has been designed, I would say, to enforce and to strengthen and to enhance the quality and the enforceability of ICC awards and in the date of the process. The two most distinctly and controversial features of the ICC expedited rules are the automatic application based on the amount of dispute and the sole arbitrator provision. Let me explain. As I've mentioned, the ICC expedited procedure applies to train of exceeding 2 million US dollars unless the parties have opted out, for instance, in their arbitration agreement or unless the ICC court decides otherwise. Thus, in contrast to other arbitration rules such as SCC or SCAC, for instance, the ICC expedited rules can apply without the parties consenting to their application to a particular dispute once it has ridden. In the paragraph 59 of the ICC note to the partners and arbitrariness confirmed that by agreeing to ICC arbitration in their arbitration agreement, the partners have agreed to the application of the expedited procedure provision of the ICC rules when applicable in precedent in any contrary term of their arbitration agreement. I never thought they expressed opt-out of the expedited rule in such an agreement as for their arbitration. An agreement to opt-out should be clear and expressed in specific terms the partners' intention not to subject instead to the expedited procedure. Some criticism has been directed at the expedited rules on the ground and even when the amount of dispute is small some case may be sufficiently complex or important such that they do not feel best or at least properly happiness under the expedited procedure. I.e., my broader interest, for instance, are at stake and it should require lower healing or a round of double deduction. The ICC expedited rule do however take such circumstances into account as they provide first, that the court, the ICC court may decide at any time at the request of the party or on its own motion that the expedited rule are not suitable for a partner case. For example, the court in all likelihood I submit, consider that the treaty made arbitration should not be governed by the expedited rule and second, the wording of the rule includes some flexibility as the procedure is outlined. The arbitrarian has the discretion not to allow requests for copyright production or limit the number of written submissions after all this after consultation with the party. That said, especially your significant interest may be implicated by arbitration irrespective of the amount at stake parties should I submit when drafting arbitration agreement provided for ICC arbitration at least give consideration to exercise the right to opt out the expedited proceeding and the expedited rule is appropriate. Last point, perhaps the most controversial distinctive feature of the ICC expedited rule is that the sole arbitration will normally be accounted even if the party has provided in their arbitration agreement that this between them will be decided by three member trial owners. Some have argued that the parties right to choose their three member trial owner is a critical part of the arbitration process and I call that the right of the party to choose three persons and an owner or sole arbitrator should not be diminished or reduced to a plain cost calculation. Others have argued that this aspect of the application of the expedited rule could, in theory, affect the impossibility of your final award under Article 5.1D of the New York Convention which provides a recognition and the enforcement of the award may vary if the competition of the five member was not in accordance with the party's agreement. Not surprisingly the ICC's view is that by submitting to ICC's view in an arbitration agreement entered into after the first of March of 2017 of this year parties consent to the application of the rule for the expedited proceeding including the provision for appointment of a sole arbitrator for any history later rising that would hold under the end date of such rule. For some insight as to how a national court might deal with this issue, I know that in the Singaporean case AQZ vs. Ara 2015 an award rendered endless expedited CAC rule was challenged notably on the ground that the composition of the tribunal did not comply with the party's arbitration agreement which had expressly provided for three member tribunals instead of the sole arbitrator. The Singapore High Court rejected the challenge holding that in a court a commercially sensible approach to interpreting the party's agreement would be to recognize that the CAC president does have the discretion to appoint a sole arbitrator thus the Singapore court took the view that by choosing the CAC rule the party were bound to accept the court's power to make decision including with regard to the composition of the arbitration agreement no express consent is necessary for the expedited procedure to override an agreement requiring the three member tribunal the court had which remains to be seen whether other national court would take similar views but nonetheless a good indication of how court might react. To conclude I will say that the expedited rules are part of the wider movement to increase efficiency in arbitration for example the ICC is encouraging as other institutions arbitrator to conduct or no more proceeding more efficiently more expeditions the ICC court may for instance increase the arbitrator's seed for particular expeditions handling of the case and it's trying to deter arbitrators from taking too much time to render their award potentially increasing at some time relatively significantly the arbitrator's seed in case of undue delays most major arbitrator institutions have also developed an emergency arbitrator proceeding which permit a rapid constitution of tribunal and rapid decision making in case urgency the efficiency movement continues as some institutions such as CIAC and SEC have even introduced summary aggregation mechanism in their rule whether the addition of such summary aggregation mechanism is the move in the right direction and will be one of the next reform for the ICC court will be interesting to see which would be also interesting to see whether the IAC which only contemplates expedited formation of a tribunal in case of exception in urgency will follow that trend and include detailed provision for expedite proceedings in its rule at its next reform Thank you very much I promise you a small quarter of ideas and news and information and all speakers can deliver and I'm grateful of the organizers that understood that it may be each on bed so it's better to either have it removed or do something else as well I am aware of the time and I'm not going to be asking questions to the speakers I would resent that if there's not many more in the audience but I wanted to bring up by way of summary a series of questions and I think there are a number of themes of overarching themes quite nicely in the four presentation we have here Duncan addressed the question of not the lack of regulation but perhaps the modificio regulation and the layers of regulation in terms of density and perhaps hierarchy and to try to reconcile what is then biologized what should be taken for of course what is very interesting in that debate about council ethics is it seems to take for granted that a certain type of behavior is ethical or a certain type of ethics should be followed while we're not necessarily clear as to what is an ethical behavior for example in one of the few cases where we have the knowledge of the ACP as Slovenia where we have the removal of the council in order to safeguard the integrity of the human technique we have not seen any clearly an ethical behavior by the council but it was a pre-emptive action and of course behind the removal of the council in Belgium and Argentina were more or less one of the council's data and physically not very much in that kind of type so what type of sort of behavior an ethical behavior is such as to warrant an action and that's a very big thing and we don't seem to address that element in the room and we take a very much from America what ethics work very well but everyone has seen behavior that's a very big point of question Richard addressing his question amongst other things whether culture is actually defined in paradigm to do that or whether it's a matter of risk management so because council doesn't want to give away certain arguments including some of the key processes and I recall a few years back in Vienna between two very evident council where one sort of with a vote in public one was always making a motion to have a feather delay the proceedings and the other council was trying to define that motion which was almost very regulatory but it was packaged in due process way and 100% the audience voted in favor of delay but of course what happens here that Richard wrote up is for each council there's a question of what would be the best thing you could do for your client and there's also a question of which actually becomes spots for prominence it passes almost to something that Markov said it called the VARPS you can see cases where VARPS are not equally represented because either there's no representation at all or the representation is not adequate and how did you deal with that context if the future level takes people that exist in the way of the teams in England it's very common in the context not of the Premier League but even in France but perhaps in the camp where you can have a sort of a team that would play with the Premier League team and every now and then there is surprise you always know that the Premier League could be better than the other and I'm not going to say anything about the French because that's why it's getting here in the third paper sort of Markov addressed sort of three categories of third party and of course he played within jurisdiction of the reach and substantive and one of the debates has moved perhaps from whether we can extend the agreement jurisdiction to whether substantive we can reach out in the context and the reality is that in many almost all construction contracts and a lot of contracts we can have some sort of funding not that much but funding in the performance of the contract you have a third or a fourth or a fifth party in the case somehow and the argument that has been brought up by my colleagues at the Bloc is if substantive law allows the extension why would jurisdiction allow the extension but the question there is which is a thing that perhaps came up from the lens of this as well is what happens with patatonic and the attitude of the ICC is not just by the Singaporean case in the first case of a challenge of an emergency arbitration decision under ICDR rules the Court of Transformers said you agree to the rules you agree to that 5-1-D is still the the democracy and all institutions trying to be efficient at any cost means that perhaps we create some talent to be missing patatonic quite substantive in some cases so I will invite questions, contributions from the audience keep your questions, contributions, comments brief and once you do that and it goes on to each member of the panel you want to address your question the floor is up Introduce her first I'm Julian from the LSE I have a question addressed to all members of the Tribunal in particular to Mark who this is because he touched upon this very briefly just a quick question first do you think it could be reasonable to allow the recovery of the costs of third-party funding and if so what do you say to those people who are concerned about the losing respondent having to bear the claimant's costs in particular if the claimants and lawyers have a reduced incentive to control their costs knowing that they would just be involved let's go ahead and give our comments so I'm Julian from the LSE I'm from Duncan's presentation and also something that the professor himself said talk about how there's a need for regulation and what actually ethics are and one of the areas where there may be a need for regulation is what actually happens when ethics are breached that's just something that we've seen different courts and different Tribunals react differently so for instance you have the Croatia issue in the case against Surinia where there's a shadow behind the scenes and there you see well Croatia is just pulled up but who actually takes the brunt of it is it the client is it the actual council maybe that's one particular area which doesn't need regulation so my name is Julian my question is I think the question was the question is so had that case been to the ICT and if the rules say that if the party is off out of the ICT in the case of the Singaporean one since the parties have expressly stated that they wanted the ICT to be done by three arbitrators wouldn't that be in that context by necessary implications that they have offed it out from the ICT Wendy Marz well with an extension of that question from the ICT applies its discretion to a point three arbitrators or not in cases that are two million or other is it how do you for the ICT will manage the uncertainty the transparency and also the Singaporean case in applying that discretion I understand that the parties have agreed to off it's under two million that's a clear line but what about the discretion that's applied as the Mr and the rules for example in the case of complexity of the ICT we recently seen the ICT suggesting that both commercial and premium banners would consider security across soldiers more seriously given how active is the party finding market in the gun and all questions in the banners do you really see the party order becoming regular part of the landscape is my first time for one more yeah and Shalma is with me coming to the forum for one last question here's the first question and the last question regarding third party funding is it really problematic third party funding for the conflict of interest and we have the obligation of the council upon one side for well and the other side the other side the conflict of interest in third party funding and regarding the security forecast because it's a common occurrence in commercial arbitration sometimes and regarding investment arbitration we have the case the rest to make a lot of noise but because we had a hidden procedure from sometimes of the security forecast when we see regarding sorry when we see in investment arbitration we see a lot of investor around no paying cost and nobody say anything about that but when it happens third party funder make a lot of noise so I think regarding the no paying cost investment arbitration it's a broader topic that only third party funder can do and this even brings questions of asymmetry quality of arms access to justice as well so let's have then the panelists address the question in the order in which they spot suddenly sort of first addressing the first question on third party funding and whether a successful party should be able to recolor their costs I think the answer is yes but within the discretion of the tribunal and I think that's consistent with the recent decision of the English courts in SR and North Scott in that case the English courts rejected a section 68 challenge against an award that gave the successful party the uplift that they had to pay for the funder and the English courts held that the tribunal's discretion under the ICC rules and what other costs was sufficiently broad to encompass third party funding and therefore that was within the tribunal's jurisdiction and there was no basis for a challenge that doesn't mean that in every case the tribunal will award the successful party the costs of funding the tribunal has a discretion a broad discretion but I think there will be cases when it is appropriate to take a case where a party has clearly and deliberately breached their contract because their counterparty they believe doesn't have the assets to pursue the claim in those circumstances it may be appropriate for the tribunal to say yes there was a breach of contract deliberate breach of contract the only way for the claimant to pursue that claim was to obtain third party funding therefore it's entirely legitimate for the successful claimant to recover their costs but that is something within the inherent discretion of the tribunal and I think again it's a matter of the tribunal exercising that discretion in a nuanced and sensitive way to reach a fair conclusion in the particular case on the second case about regulation and the second question about regulation and the tribunals whether there's a need for more regulation by the tribunal I think again the Croatia and Slovenia case shows that tribunals already have the ability to regulate to ensure the integrity of the proceedings in that case the tribunal did exclude the barrister appointed at the last minute from the case and it held that there was no express right to do that under the exit rules but it had an inherent ability to protect the integrity of the proceedings and I think when we're talking about regulation the important question is regulating for what purpose different regulatory bodies regulate for different purposes the tribunal's priority should be the integrity of the proceedings the tribunal's priority shouldn't necessarily be punishing counsel that is perhaps within the authority of national bar councils and not something a tribunal should be interested in but the tribunal has a broad discretion to take steps and put in place procedures that ensure the proceedings are fair the proceedings are seen fair there is a level playing field and I think tribunals already have that power it's not a matter of giving tribunals additional powers it's a matter of using the discretion they already have to robustly reach the right result in particular cases the next question was I think moving on to the ICC point I think it was a very complicated question about optimal ICC proceedings by necessary implications if you've chosen three arbitrators does that mean that you have effectively displaced the the rule or discretion of the ICC to allow you to appoint just a sole arbitrator I mean that's a fairly complicated frankly legal question but I would subscribe but then I am someone who is very much in the sort of Singaporean mould to say that look if you have chosen these rules and within those rules there is a discretion afforded to the ICC and you have not explicitly said this rule shall not apply my own view is you're stuck with that discretion as to the exercise of that discretion I think that was Wendy's point about how carefully are the ICC going to navigate this particular path I think the answer is with in circumstances where for example a case may be particularly complex or difficult I think I think transparency is important there in terms of the ICC court has to be very clear as to the circumstances in which and the criteria to which it will have regard to into deciding to exercise that discretion because I want perhaps we'll see further challenges along the lines of that discretion can improperly invoke I think one broader question here is to what extent decisions made by institutions are nearly ministered or beyond I mean obviously by the time we accepted the rules but I remember a few years part of the form of the Swiss rules which introduced this actually in 2005 they were actually bringing into under the Swiss rules set off claims and counter claims which were covered by different contracts by different dispute resolution clause and effectively if the decision was it was really a jurisdictional decision made by the institution for the tribunal which is not challenging for the jurisdiction of the tribunal I'm not saying that the ICC rules or the introduction of expedited proceedings have that jurisdictional side but I think the tribunals are being assessed for the deep process this type of decisions but institutions are not so far so that's actually a bigger question Thanks I'll limit myself to the questions that were raised about third party funding and just taking the first one from the back there around the recoverability of funding costs I would echo what Duncan said about ultimately it falling to a matter of the exercise of the tribunals discretion I think it's well established that tribunals enjoy a broad discretion to award additional costs and so I think that risk that you mentioned of parties perhaps not having an incentive to control their costs is perhaps more apparent than real in that there isn't really an incentive to do that anyway because even if a party is successful and in principle is entitled to recover its cost the tribunal will generally scrutinize those costs and decide for itself to consider them to have been reasonable and so there's no real incentive to allow costs to spiral out of control because that victory may then end up being a pyrrhic one for the successful claimant in terms of whether we see third party funding becoming a regular fixture on the commercial arbitration landscape of course it's difficult to know again because of the private nature of the proceedings just how prevalent third party funding is but certainly experience from the investment treaty suggests that it is quite popular and that it is gaining in popularity and I think the fact that the Hong Kong Law Reform Commission considered permitting permitting third party funding to be necessary to retain Hong Kong's competitive advantage is quite telling and those Asian jurisdictions are playing catcher in that respect but perhaps one should add that the threshold that the number of third party funders have of claims which are excessive 120 million and some costs which are over a certain well means that a lot of cases although they could have been funded they would not be funded because they just need to divert the resources where they can be so there's a lot of sort of the middle kind of sometimes cannot get to the supporter you need to get rollouts thank you I'll comment very briefly maybe on the issue of the opting out and the discretion on the opting out I agree that theoretically the ICC could have adopted an approach where the mere fact of agreeing to a three-member tribunal would be considered as implicitly or impliedly opting out this is not the approach that has been retained and it's very clear from the note I'm going to lead to an extract of the note agreements to opt out should express in specific terms the party's intention not subject themself to the expedited procedure provision and then denotes that it is not sufficient to that effect that the parties have referred in the arbitration agreement to a three-member tribunal or have adopted time limits that depart from those provided in the expedited procedure so it's very clear and therefore you know from the ICC perspective at least that would not be valid opting out now how a court would react again we have the Singapore example but it remains to be seen how other jurisdiction will deal with that as to when this question and the issue of the discretion I would say first it's to my knowledge no decision has been taken yet by the court and it remains to be seen how the court will react I will mind it to think that the court would take into account whether there are strong objection from one of the parties the complexity of the case whether there are unconfident claim in addition whether a state or state entity is involved again it's I would say relatively soft at this stage the note itself let me check where is the jurisdiction where is the arbitration maybe also a parameter in terms of enforcement because the note states nevertheless a point three arbitrator if appropriate in the circumstances very vague I agree with you in the circumstances in all cases the court would invite the parties to comment in writing so at least consult with the parties and every effort should be made to ensure that the award is enforceable at law so there is this concern at least from the court perspective that the court that the award be enforceable at law which is an obvious concern in such a scenario I would say it's important to strike the right balance between transparency predictability and to keep some flexibility thank you all that remains to me is to ask you to join me in thanking the panel in a traditional way