 Good morning. Thank you, first of all, to the organisers for their very kind invitation. I'm very honoured to be here, and thank you to Fiden in particular. So my topic today, or my subtopic I should say, is titled Friend or On Friend, which I've decided to interpret to mean how do arbitrators in council navigate the use of social media in a way that avoids a challenge to arbitrator's independence and impartiality. And when I was putting this presentation together, the quote from a commentator came to mind that the internet is the first thing that humans have built, that they have completely failed to understand. And that's certainly true, I think, for a lot of lawyers, particularly the elderly generation. I'm not sure for all the millennials in the room here. But it is, you know, that quote highlights the ongoing challenge of ensuring that orbital rules and orbital guidelines somehow manage to keep up with the pace of the ever-changing virtual landscape. So that's what I want to explore this morning. And my first starting premise is, what do we mean when we talk about social media? And in the context of the legal community, I think it's safe to say that what we're talking about are essentially three platforms. Firstly, Facebook, secondly, LinkedIn, and thirdly, Twitter. And they have their own terminology for connections. Facebook, the connections are friends, LinkedIn, its connections, Twitter, its followers. The second premise is that it's not practical or desirable at all to require all active arbitrators and all active members of the orbital community to immediately deactivate their social media accounts or prohibits setting them up in the first place. We live in the 21st century and that's just frankly not realistic. Arbitrators are people, at least I think most of them are, with families, friends and wider social networks. And there's no reason at all why arbitrators shouldn't be entitled to use Facebook, Twitter and LinkedIn just like anyone else. And there's another important point here as well, as some of the speakers have alluded to already. Social media is an invaluable opportunity for arbitrators to market themselves to their peers, to their colleagues. And that's particularly true of the younger generation of arbitrators who are trying to make a name for themselves. So what do the current guidelines have to say about this issue? Well, the IBA guidelines on the conflict of interest in international arbitration were revised in 2014. And the previous iteration, as many of you know, was from 2004. That was the point in time when social media platforms were in their infancy. Facebook had just been created. I think Twitter was still a glint in its founder's eye at that point. So the 2014 guidelines were the first chance for the IBA committee to really take into account the explosion in social media over the prior 10 years. And they did so through the amendment to two different provisions in particular. The first is section 4.3.1, which says that an arbitrator has a relationship with another arbitrator or with the council for one of the parties through a social media network. And again, 4.4.4, the arbitrator has a relationship with one of the parties or its affiliates through a social media network. Now, both of these scenarios fall under the so-called green list, which means that there's no appearance of conflict of interest. There's no actual conflict of interest exists from an objective point of view. And therefore, there is no obligation on the arbitrator to disclose the mere fact of a connection through a social media network. However, it's interesting to read the published comments from the IBA conference panel that debated this issue in October 2013. I think it gives some insight into the thinking behind the edits that were ultimately made to the IBA guidelines. And when you look at those comments, there seems to be or have been a general agreement that where such networks are effectively an online database or forum for exchanging resumes, they are, quote, easy candidates for inclusion on the green list. And Hilary Halbrink, you see made the point in that particular committee meeting that a distinction should be drawn between the source of the relationship and the nature of the relationship. And that seems to me to be to be quite appropriate and correct. So the issue is really whether such social media connections are indicative of a, quote, close personal relationship, which would indeed be discloseable under the IBA guidelines. What's also interesting about the IBA discussion is the apparent assumption from all of the contributors that all three of the main social networks that I've talked about, Twitter, LinkedIn and Facebook, shared the same basic function of acting as a virtual professional marketing tool. Now, while that may well be true of LinkedIn, it's certainly debatable with regards to Twitter and even more debatable with regards to Facebook. And this distinction between professional networking sites on the one hand and social networking sites on the other has indeed been picked up by other commentators who have written on this topic and who have gently criticised the latest iteration of the IBA rules for naught, not making that distinction between Facebook and LinkedIn in particular. And they've advocated classifying a Facebook friendship as an orange list issue that would be discloseable and may potentially give rise to justifiable diets as to the arbitrator's independence or impartiality. Now, that seems to me and I'd be interested to hear what the audience and the other panel members think about that, but it seems to me a somewhat utopian approach that ignores the messy realities of life. It would capture a situation where two students, perhaps people in this room, friend each other at law school, then don't speak for the next 20 years, 25 years, and then find themselves involved in an arbitration where one of those individuals was counsel and the other was arbitrator. And I don't think it could be seriously contended that there was a conflict of interest issue that would arise from that particular scenario. It would also capture a scenario where two existing practitioners friend each other purely for professional networking purposes, just as they would do on LinkedIn. And again, I don't think that there would be any dispute that in that scenario there is a conflict of interest that would give rise to a challenge or certainly a successful challenge. Indeed, those who have proposed making Facebook friendships an orange list issue have also acknowledged that what really should be determinative of any independence or impartiality challenge is the nature of the relationship and not the source. And so the issue is how can that be properly measured? And one suggestion has been that the closeness of a Facebook relationship can be quantitatively measured through social media mining. In other words, having these specialist companies mine the data that is available from Facebook to determine the quantity of interactions between two Facebook friends and indeed quality of those reactions. And that seems to me a highly questionable proposal. And quite aside from the multiple legal hurdles with regards to privacy laws that would need to be overcome, it's also doubtful that prospective arbitrators would tolerate that level of intrusion into their private digital lives. And it also begs the question, is this proposing a solution to a problem that doesn't in fact exist? Indeed, there are only a handful of cases currently that deal with this issue of arbitrators and their online identity and I want to just explore a few of them briefly. The first is a 2014 decision of the French Lyon Court of Appeal. And briefly in fact of that case, in 2009 an award was rendered in Paris by a tribunal of three arbitrators. The losing party sought to annull the award on the basis that the opposing counsel was a Facebook friend of the presiding arbitrator and that she had supported his candidacy for election to the Paris Bar by liking his Facebook status. Now ultimately the award was upheld on the basis that the like was rendered after the award was issued. Now the relevance of the simple Facebook friendship itself wasn't in fact considered in the judgment. That's presumably because the court concluded that this was not significant in itself without the existing existence of other compelling circumstances. The next case cropped up in Denmark and this was a Supreme Court decision, the Danish Supreme Court. It was a criminal matter where the defendant had been convicted of pushing his victim at a public demonstration. And the defendant appealed after the conviction having discovered that one of the lay judges on the district court was registered as a Facebook friend of the victim. And the defendant argued that consequently as a result of this Facebook friendship the lay judge was unable to make a completely impartial judgment. Now to combine the issue the judge had on two prior occasions written positive comments on the victim's Facebook page and had once issued a supportive statement toward the victim in a campaign critical of the victim's political views. Now when the Supreme Court looked into this and investigated it in more detail it was dispositive as far as they were concerned that the judge and victim didn't know each other personally. They'd never met and they had never spoken to each other so their relationship existed purely on the virtual level through this friendship at Facebook connection. And the Supreme Court therefore held that there was absolutely no doubt as to the impartiality and independence of the lay judge and upheld the conviction. Now finally the German Court in 2016 issued a judgment, again this was in a criminal matter and this was concerning whether a judge's online profile and statement on Facebook cast doubt on his independence and impartiality with regards to the conviction of two suspects. So this is obviously slightly different from the two cases we've just looked at. This isn't about a Facebook friendship connection per se, it's rather about how a judge has presented himself on his Facebook profile. And in this particular instance the judge who had convicted this chap had been depicted on his Facebook profile page and wearing a t-shirt with the statement we will provide you with a home prison. And to make matters worse on his profile page the judge had then commented under this picture this is my quote, when you get out I'll be in retirement, look. So the German Supreme Court in that instance did in fact uphold the challenge to the conviction on the basis that the content of the judge's Facebook page showed that the attitude of the judge suggested that he in fact quite enjoyed and derived a lot of fun from condemning suspects and giving them hefty convictions. Now this case is significant for a few reasons. Firstly it's the only known case certainly that I've been able to find that granted a challenge on the basis of inappropriate statements on social media networks. It also clarified that a distinction between a judge's private sphere and his or her professional conduct does not exist when the judge's comments concern his or her profession. And then finally a close and concrete connection to the challenge did not need to be established where the judge's behaviour concerned his or her attitude to the profession in general. So where does this leave us? Well just a few brief concluding thoughts. Firstly the mere fact of friending on Facebook or connecting on LinkedIn clearly is not a sufficient basis for a successful challenge. And that's something that the IBA guidelines appear to agree with. That said friending a council, an arbitrator friending a council or vice versa during the pendency of an orbital proceeding is probably inadvisable. And the safest course is to refrain from any social media activity between an arbitrator and a council during the duration of the proceedings. And that might be a point that we might want to pick up on and explore further during the debate. And so finally in conclusion the real issue it's clear to me is not at the connection per se but really what an arbitrator's Facebook profile might convey to the wider world and particularly whether it could be used to cast doubt on the judges or the arbitrator's independence and impartiality. Thank you very much.