Mark E Appel

International Centre for Dispute Resolution

Lately, I keep thinking of the proverbial curse, 'may you live in interesting times'. Financial and property markets are reeling. Venerable, global financial institutions have been brought to their knees, swallowed up by competitors or taken over by government regulators who dread panic more than nationalisation. Global consumer confidence seems to be drying up as fast as investment capital. An economic tsunami seems ready to swallow the world exchange markets.

So how is international commercial arbitration relevant? International commercial arbitration continues to be the 'salve' that allows cross-border commercial activity to flourish, whether economic times be good, bad or horrific. In 2008, the international business and law communities celebrated the 50th anniversary of the New York Convention, a document popularly hailed as perhaps the most significant piece of international commercial legislation ever drafted. Thanks to the Convention, parties to commercial contracts can find some comfort in knowing that if their cross-border contract is breached, a remedy can be sought in international arbitration and, importantly, enforced in signatory states.

As such, the adoption of arbitration as a method of dispute resolution grows apace. Case statistics from the International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (AAA), showed a significant rise in international cases (from 586 cases in 2006 to 621 cases in 2007 — for European/Middle Eastern/African parties the case numbers were 207 in 2006 and 244 in 2007).

European and Arab states from Ireland to Bahrain have moved quickly to make changes in their governing law and enforcement regimes so as to further promote themselves as a safe haven for direct investment and as an attractive place for the relocation or regional offices of multinational finance, insurance, telecoms, energy and infrastructure companies. At ICDR we have been moving in step with growing economies, recently opening offices in Mexico City (2006) and Singapore (2007) as a means of being closer to markets in key development regions. When opening new offices (in every case by invitation of the local host government or business community), ICDR is as likely to be speaking with the government Office of Economic Development as with the judiciary. There is a queue of jurisdictions asking ICDR to open offices in their state. This welcome speaks volumes in terms of the perceived value that established arbitral institutions like ICDR can bring to regional business development.

To stay relevant, arbitration service providers need to both maintain constancy to the traditional commercial arbitration values of fair and affordable justice and also continue to develop and implement innovative processes which address real business needs. In 2008 users of international arbitration services made special efforts to have their voices heard, whether collectively through new groups such as the Corporate Counsel International Arbitration Group or through the active participation of company lawyers in some of the better internet arbitration networks. While the messages were several, one underlying concern of company lawyers was repeated time and again. Simply stated, the parties who fund international arbitration are concerned with the time and costs required to pursue cases to conclusion. Special concern in Europe and the Middle East is reserved for the perceived migration of US and UK-style trial techniques, such as disclosure/discovery, to international arbitration. Given the concern of users, it should come as no surprise that international arbitral institutions have been listening and responding. At ICDR, case management has been a focus for some time. Starting in 1996, ICDR took systematic steps to address the issue of costs. First, ICDR created an affirmative obligation for arbitrators serving under its rules to manage proceedings to a speedy and economic conclusion. Coupled with that obligation was new authority to direct the presentation of evidence, limit or deny cumulative or repetitive evidence and otherwise manage the proceedings as efficiently as possible, while affording parties an adequate opportunity to be heard. In 2003 ICDR organised its first symposia for ICDR arbitrators, with effective case management a key message throughout. ICDR arbitrator symposia now take place in cities across the globe every year. More recently, ICDR has followed the best practices of its users, building quality assurance into its internal management structure. ICDR conducts continuous staff training programmes, and requires status reports and time line compliance from ICDR case managers to ensure that ICDR administration acts to motivate efficient administration. All this attention happily brings results. Parties to ICDR proceedings can expect an initiation letter within two days of filing the demand for arbitration, the appointment of arbitrators within 60 days, and the first procedural hearing within 120 days. In 2007 the average time from filing to award in ICDR administered international arbitration was 353 days.

ICDR's most recent contribution to cost containment was released in May of 2008. The AAA/ICDR Guidelines for Arbitrators Concerning Exchanges of Information were drafted in direct response to continuing calls for more 'teeth' in the process in terms of arbitral authority, especially given new and potentially limitless information exchange popularly characterised in US litigation as 'eDiscovery'. Highlights of the AAA/ICDR Guidelines include:

• tribunal obligation to require party requesting information to justify time and expense involved and discretionary authority to condition the granting of such request on the payment by that party of costs attendant to its application;
• statement that court procedures developed for US courts are generally inappropriate for obtaining information in international commercial arbitration; and
• when documents to be exchanged are in electronic form, the tribunal may direct testing or other means of focusing and limiting any search.

p>The guidelines apply to all international cases administered by the ICDR that are commenced after 31 May 2008.

Sometimes new approaches are called for. There is a lingering misperception in the marketplace, perhaps aided in the past by some institutional providers, that smaller value cases are inappropriate for resolution in arbitration. Case experience at the institutions belies that impression. All of the major arbitral institutions, including ICDR, administer a good number of cases where the value of claims does not exceed US$100,000.

With technology-based procedures, more process is available for less cost. Recently, ICDR developed an online dispute resolution protocol for manufacturers and suppliers. Highlights of the protocol include:

• filing of claims, counterclaims, documents and supporting arguments online, using AAA WebfileTM;
• direct negotiation through 'double-blind' offers, with a matching offer and counter-offer resulting in settlement;
• failing settlement in negotiation, online 'documents only' review and award by technology savvy arbitrators;
• speed (filing to award in about 60 days); and
• economy — initial cost to parties of US$500 for negotiation phase and, should arbitration be necessary, an additional US$1,000.

More information regarding the ICDR manufacturer/supplier protocol is available at www.icdr.org.
International arbitration is as vibrant and relevant today as it ever was, perhaps even more so. Arbitral institutions including ICDR are doing their part to make the process responsive to the needs of an increasingly diverse global audience. Watch this and other publications for further developments. 2009 promises to be an interesting year!