In the final episode with only two co-hosts, we call up GDPR oracle Emily Hay for a discussion on how the data protection directive GDPR comes into play in international arbitration. Joel then speculates about arbitral awards as assets - how much do they cost and what rules govern their acquisition? For Happy Fun Time, Brian complains about having to work on vacation, but what is really expected of arbitration lawyers in terms of holiday work?
The Arbitration Station is back in business! A lot has happened over the summer: Jay-Z (almost) has notified Norway of an arbitration, Vannin Capital was sold and Joel got to lecture The Economist in print. We catch up on this and other summer news, thanks in part to IAReporter’s summer recap. Then, Brian has a few words about the declarations by public officials and how those play into investment arbitration. The first Happy Fun Time of the season closes out the episode: DATING IN ARBITRATION (yes, we do accept applications to “Arbitrinder”).
In the final episode of Season 3, we spend a little time on investment legislation, and more specifically consent to arbitration located in investment laws [TIME 9:03]. More time is spent on the second iteration of the book club: Joel has re-read Dealing in Virtue and tries to convince Brian that it is a must-read [TIME 30:20]. For the final HFT of the season, we’re joined by Kata Szeidovitz and Oliver Steeple, two colleagues of Brian’s who tell us about the UK training scheme for qualifying lawyers [TIME 59:50].
The Arbitration Station now goes on summer holiday. Hope to talk to you soon again!
The Arbitration Station is in Washington, to debate the allocation of costs from a conference podium. In this episode, we do a dress rehearsal of our respective arguments (should cost follow the event?). We also sneak in some gossip from UNCITRAL Working Group III in New York, as well as a short interview with Alexis Mourre from the ICC. Happy Fun Time closes out the episode, focusing on the impostor syndrome that we all suffer from.
Joel is a doctor now, and we talk about how that happened. Then, the only substantive segment is a big one - non-participating parties (and a little bit about non-participating arbitrators): how is the arbitral procedure affected by the fact that one party does not participate [TIME 23:32]? Happy Fun Time is based on a listener tip: humour in arbitration. Can you be funny in arbitration, and should you try [TIME 56:48]?
In this episode we address two issues that will also be discussed at the 3rd ICC European Conference on International Arbitration on 1 April: sanctions [TIME 12:25] and mandatory rules [TIME 36:53]. The Happy Fun Time segment is devoted to hearing preparations, where Brian has a thing or two to teach Joel about how the real world works for (junior) arbitration counsel [TIME 53:40].
The book club gets a mini-start with Arbitration Without Privity, a classic 1995 article by Jan Paulsson [TIME 11:27]. Then, we turn our attention to considerations of proportionality in investment arbitration [TIME 33:49]. Happy Fun Time is about wellness: how to stay healthy and sane in a fast-moving arbitration world? A hint: you do not have to be marathon runner (unless you want to) [TIME 53:50].
Back from a one-week hiatus, we take on two substantive topics: sovereign immunity (from enforcement) [TIME 14:39] and tribunals’ powers to reconsider decisions made during the course of the arbitration [TIME 40:41]. The final segment is HFT, in which we discuss the peculiarities of teaching international arbitration [TIME 58:35].
Mentioned in the episode:
In an extra-long episode, we first cover two specific international instruments: CISG [TIME 14:28] and ICSID AF [TIME 33:20], two acronyms you should know. The primary reason for the movie-length episode, however, is Happy Fun Time, which this week is about LGBTQ+ issues in the field of arbitration [TIME 50:33]. For this segment, we are rejoined by Quantum Boy Michael Kotrly, as well as several testimonials from listeners sharing their experience.
Joel convinces Brian that service of notice is a sufficiently sexy topic to deserve a segment of its own [TIME 7:34]. Brian then teaches Joel about the group of companies doctrine, based on a recent case from India which maybe addressed it [Time 27:13]. The Happy Fun Time topic is fake arbitration - how easy is it to manufacture an arbitration or forge an arbitral award? We discuss these questions, based on stories of people who have tried [TIME 46:43].
With the discipline one can only acquire in Big Law, one half of the host duo invites two guests for a holiday special. In Brian’s London office, he talks to Gloria Alvarez and Manuel Casas. First, Gloria focuses on ECT reform in the light of the Achmea judgment [12:10]. Manuel then takes on some recent ICJ case law with relevance for international (investment) arbitration [39:00]. The three then together re-brand HFT as La Hora Feliz, which is about Latin American developments in international arbitration [1:02:04].
With no guests to help out, Brian and Joel try to nail jello to the wall by explaining the outlines of a tribunal’s power to draw adverse inferences [13:28]. The second substantive segment is art arbitration - a topic very much in the news lately [37:49]. For Happy Fun Time [59:07], we go through some of the badly written arbitration clauses which were submitted by listeners, and use that as a basis for a discussion on clause drafting.
FINALLY we get a chance to talk to the Wayne Gretzky of arbitration podcasts - Michael McIlwrath. In addition to a long career as a disputes lawyer at a multinational company, Mike keeps busy on several fronts. Most notably for us, he ran a well-known podcast about alternative dispute resolution, the IDN podcast (found here), between 2007-2011.
In a departure from our typical three topics, we talk to Mike about two things: first, about the Prague Rules, which attempt to insert some “civil law flavour“ into international arbitration. Secondly, we compare notes from our respective podcast experiences. How come IDN was so much better than the Arbitration Station? What has happened with the world of arbitration in the time that has elapsed between our two podcasts? What tips does Mike have for us?
The Procedural Order competition mentioned by Michael can be found here.
We discuss corruption in international arbitration [TIME 14:38]. In the second segment, Brian interviews Philippe Pinsolle about interim measures [TIME 37:00]. In the HFT segment, we discuss local counsel: how are they involved in the arbitration, what is their relationship to international counsel, and – most importantly – are international counsel better than local counsel? [TIME 57:24]
Also: open call for submissions! Send us your favorite bad arbitration clauses to thearbitrationstation @ gmail dot com, and we’ll do a segment on them.
We take on one current topic (issue conflicts) and one more historical (Iran-United States Claims Tribunal). For the latter topic, we are joined by former Tribunal clerk Jawad Ahmad, who also stays on for Happy Fun Time, during which we discuss travel tips and preferences (did you know that Brian keeps a spare double of his toiletries, solely for the purpose of travel?)
We discuss one of the core principles of arbitration, namely the one that provides that arbitrators are competent to determine their own competence [TIME 7:10]. Second, we interview Carita Wallgren-Lindholm about the ICC, Chair of the ICC Arbitration and ADR Commission, in an effort to get a better grasp of how the world’s biggest international arbitration institution works [TIME 27:26] (for this segment, Joel calls in on a conferencing system so we apologize for the level of his interventions, which thankfully are few and short). Happy Fun Time is prompted by Brian’s new job, which he had to interview for: what can he teach Joel, who never had a real job, about job interviews in the arbitration business [TIME 54:58]?
We open strong, by discussing privilege - not our white, male privilege but rather that covering documents and testimony [TIME 8:40]. Brian then interviews Danish arbitrator Niels Schiersing about post-M&A disputes [31:26]. We also have a Happy Fun Time discussing the use of titles: Dr., Mrs., Prince? Madam Arbitrator? First names in email communication? We sort things out for you [TIME 57:28]
FINALLY, Season 3 is up! Joel discusses the exhaustion of local remedies rule, after first having forced Brian to watch a random video connected to the Loewen v. US award (TIME 9:25, hat tip to IAReporter for pointing its readers to the video). Then Brian interviews Veijo Heiskanen, talking about the issues that have occupied different generations of arbitration lawyers [40:18]. The first Happy Fun Time of the season concerns “office politics“, for lack of a better word: how to behave, consume alcohol and otherwise interact socially in a professional context [TIME 56:03].
By the way, just a few days after we recorded this episode, the final award was rendered in Chevron v. Ecuador. The tribunal discussed exhaustion of local remedies, as well as the Loewen award, and would have been a natural focus had we recorded the segment a week later than we did. Go read it!
Season 3 of the Arbitration Station is almost here! In this Teaser, we talk about the plans for our future. They include, among other things, a crowdfunding campaign and a call for a legal researcher.
We also could not keep ourselves from recording a Happy Fun Time segment, addressing the use of Latin phrases in arbitration.
Also mentioned in the episode:
The Swedish Arbitration Days 2018
In this last episode before summer hiatus, we open with a Brian-led discussion on "due process paranoia" [TIME 8:19]. Then we are (finally!) joined by the man who is normally behind the scenes: our editor and arbitration-lawyer-in-his-own-right Jan Kunstyr. First, he concludes the place of arbitration tour with a discussion on Prague [TIME 26:15]. Then, he concludes the entire season by taking over the microphone for Happy Fun Time and asking us questions about ourselves [TIME 49:49].
(And no, we never got to what we like and dislike about each other - we're saving that for Season 3).
Enjoy your summers, arbitration friends!