13/11/2024

Recommendations for change: J William Rowley KC on the future of international arbitration

J William Rowley KC has penned the preface to a report published this week by GAR and the LCIA, setting out a range of issues and recommendations for the conduct of international arbitration. The report and its findings are based on a roundtable of arbitration practitioners and sector participants, held in January 2024, which he chaired.

Bill’s preface is reproduced in full below, and the report is available via GAR.

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Preface: Genesis of the GAR-LCIA London Roundtable

Over the past two decades, the conduct of a typical international arbitration has changed enormously, posing challenges to international arbitration’s continued reputation as the
business world’s most favoured international dispute resolution tool.

In an arbitration about serious issues, it is commonplace today to see: hundred-plus page memorials; detailed witness statements that read as lawyer’s submissions; mini-textbook-length expert reports which, like ships, often pass in the night; hugely long Redfern Schedules drafted without regard to the spirit or letter of the IBA Rules on the Taking of Evidence in International Arbitration; timetables exceeding a year to reach a substantive hearing; counsel regularly threatening tribunals with due process violations based on the alleged inability to present their client’s case; damages getting short shrift; written post-hearing briefs replacing oral closings; tribunals not infrequently taking a year or more to issue an award; and legal costs claims in the millions. Is this what users want? If not, what is it?

With these questions in mind, I approached Global Arbitration Review, through David Samuels, and the LCIA, through Jackie van Haersolte-van Hof, in late 2023 to test their interest in sponsoring and hosting an international roundtable in London to discuss these issues and how they might be addressed.

When GAR and the LCIA responded favourably to the project we began to talk to arbitrators, counsel, users and others to see who might be prepared and able to attend. Our ideal candidates would come from the four corners of the world and represent the full spectrum of players in the community.

The interest was enormous and responsive to our concern that today’s approach to case presentation was creating a real risk that international arbitration would lose its current place as the first choice for the resolution of international commercial and investment disputes.

This is the genesis of the roundtable that took place in January of this year (2024).

It is for the readers of this report to judge whether the roundtable was a success. That is certainly the view expressed by those who participated and by our hosts and supporters.
Enormous thanks are owed to GAR and the LCIA for their support of the project and of the need for intellectual leadership in the field. The roundtable met at the IDRC which graciously provided the venue for our discussion in its state-of-the-art Opus 2 hearing room. Opus 2 itself provided an all-important live transcript of our proceedings as well as an audio recording of our discussions. The transcript forms part of this report.

In the course of the roundtable, it became a clear general consensus that changes in today’s approach to presenting a case are much needed. Suggestions for changes are reflected in the recommendations that are set out at the end of the report (the GAR-LCIA Roundtable Recommendations). They are the recommendations of the users, counsel, funders and arbitrators who participated. All are at the top of their game, all are hugely experienced and the antitheses of parochial.

Our final thanks are to Lindsay Gastrell who functioned so ably as our rapporteur. Her report that follows captures the most important aspects of a spirited and free flowing discussion and concludes with what the participants believe to be sensible recommendations.

It is the hope of those who participated that these recommendations will be given careful consideration and provide useful guidance for more effective and less expensive arbitration advocacy over the coming years.

J William Rowley KC
September 2024