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!
In a return to the good old format, it’s just the two of us (i.e. no expert guests). The two substantive parts see us discussing the well-known Salini criteria [12:20] and the more practical issue of procedural orders [30:35]. Happy Fun Time is about the unsung heroes of the treaty world: all the international instruments that do not have the glamour of the New York Convention but still might come up in arbitration [47:30].
In the final conversations from Sydney, we first talk to Campbell McLachlan and Matthew Weiniger about the second edition of their book on substantive principles in international investment law. It's been 10 years since the first edition: what has happened during the work with the second [TIME 08:41]? We then talk to Catherine Rogers about Arbitrator Intelligence, which aims to change the process through which arbitrators are appointed, away from the old school phone calls and into the 21st century [TIME 32:08]. The final segment is a Happy Fun Time one. Business development at law firms: what is it and must we all engage in it [TIME 01:10:32]?
Remember that OUP offers our listeners great discounts. You can use them for Campbell's and Matthew's book (both hardback and paperback), as well as for the first edition of Catherine's book Ethics in International Arbitration (hardback and paperback)
Joel is in Copenhagen and Brian is in Amsterdam so the initial segment is recorded remotely, in a way that brings back memories from the early days of DIY audio. Thankfully, most of the episode was recorded in Sydney, where we first talk to ICSID Secretary-General Meg Kinnear about ISDS reform and ICSID's role in it [TIME 9:27]. Next, Ben Hayward discusses conflict of laws in international commercial arbitration (he has a great book out, if you use this link you will get a good discount from Oxford University Press) [TIME 35:12]. Finally, Hugh Carlson discusses AI and cybersecurity and how they interact with arbitration [TIME TIME 59:27]. No Happy Fun Time this week - it will be back next week, in the final episode from Sydney (we think).
Still in Sydney, we talk to three heavy-weights: Christophe Bondy is first out, discussing his experience representing states in investment arbitration [TIME 12.:27]. Then, Stavros Brekoulakis talks to us about public-private arbitration (for an article on the topic, see here) [TIME 39:35]. Finally, Susan Franck focuses on our favourite nerd topic: costs [TIME 1:03:46].
In our second episode from Sydney, we have three conversations with ICCA speakers. First, Wendy Miles and Nicola Swan discuss issues relating to CORE, a Canadian ombudsman for responsible corporations [TIME 9:17]. Second, Claus von Wobeser reflects on a 40-year long career [TIME 40:04]. The third segment, finally, is technically no Happy Fun Time, although Mark Kantor does a good job of entertaining us when discussing the use of arbitration in employment contracts, including over matters of discrimination and harassment (and yes, The Stormy Arbitration pops up again) [TIME 1:09:52].
In the first episode from the Sydney ICCA Congress, we come out strong. We interview Donald Donovan and Gabrielle Kaufmann-Kohler, outgoing and incoming ICCA president respectively, about the organization and their visions for it [TIME 6:35]. Then, Brian talks to Sydney-based Max Bonnell about arbitration in our host city [TIME 28:53]. Finally, we stick to HFT tradition and talk about grammar rules and drafting styles, in a session recorded in our hotel room [TIME 48:12].
We've arrived in Sydney for the 2018 ICCA Congress! However, this week's episode does not focus on the Congress (but don't worry - there will be plenty of that soon). Instead, we talk to fellow podcaster Leyou Tameru from I-ARB Africa about her work on arbitration in Africa [TIME 6:48]. We stay on topic for our Place of Arbitration series, in which we interview Isaiah Bozimo about Nigeria [TIME 38:24]. Happy Fun Time is, as always, very much off topic: this time we discuss law firm rankings, prompted by the recent publication of GAR 30 [TIME 1:06:51].
We're preparing for our trip to the ICCA Congress in Sydney, and in the meantime we talk to Victoria Kummer about New York as a place of arbitration (some mediation came up as well) [TIME 8:24]. In the second substantive segment we quiz "Canadian-Canadian" Quantum Boy Michael Kotrly about damages in international arbitration - how are they calculated and why are lawyers so bad at calculating[37:54]? Unfortunately there is a crackling that shows up sometimes when Michael speaks, for which we very much apologize! This week's happy fun time then focuses on billing and various aspects of that practice, from both a law firm and an arbitrator's perspective [TIME 1:15:12].
Alexander Foerster takes us on a trip to Germany, to talk about legal culture, German lawyers and the DIS [TIME 4:07]. Then both Brian and Joel discuss the arbitration-related aspects of Stormy Daniel's legal case against what we all assume is the US president [TIME 28:20]. The Happy Fun Time segment, finally, is about internships and their role in our field [TIME 52:38].
Brian talks to Portuguese lawyer Duarte Henriques about arbitration in Lisbon [TIME 8:50], and Joel discusses the use of legal precedent by tribunals [TIME 36:44]. For Happy Fun Time, we give mooties - participants as well as arbitrators - a chance to cure their Vis hangover by talking to Cristen Bauer from the Moot Alumni Association about ways to stay in touch with the moot community [TIME 1:02:40].
On this full-length feature of a podcast episode, Joel talks to Bruno Gelinas-Faucher about the involvement of ICJ judges in investor-state arbitration, prompted by a recent report from the International Institute for Sustainable Investment [TIME 11:01]. For our series on places of arbitration Brian interviews Yasmin Mohammad about the recent English-speaking commercial court in Paris, but since he finally gets to talk to a third party funder, he asks a few questions about that too [TIME 47:50]. Taking things down a few notches, Happy Fun Time deals with how to dress to impress: how should we approach arbitration's silent dress codes [TIME 1:20:00]?
Also mentioned in the episode:
Bruno mentions the article The Revolving Door in International Investment Arbitration, written by Malcolm Langford, Daniel Behn and Runar Hilleren Lie.