Season 5 Episode 13 - The Cognitive Bias

After a short break, the Arbitration Station is back with escalation clauses (aka multi-tiered dispute resolution clauses or cooling off-clauses) [TIME 10:57], followed by an interview with Leonor Díaz-Córdova and Natalie Hall about cognitive bias in arbitral decision-making, the subject of an upcoming article of theirs [TIME 38:53]. Happy Fun Time closes us out with a discussion on social media practices for arbitrators and other arbitration practitioners [TIME 01:21:10].

Joel’s book can be bought here, use discount code 71345 at check-out!

You can listen to the 2007 interview with Emmanuel Gaillard here, through the CPR web page. It was the first episode of Michael McIlwrath’s excellent podcast!

Read more about the CAS case with the tweeting arbitrator here.

Season 5 Episode 12 - The Mediation Special

This week’s episode has a focus on mediation, which we attack by speaking to two different experts, who offer different perspectives on this type of arbitration-adjacent dispute resolution: Anne-Karin Grill in Vienna [TIME 12:27] and James Claxton in Kyoto [TIME 48:20]. Hopefully we have now answered our own question from Season 1: “Mediation - who cares?“ We then round off the episode with a Happy Fun Time on the topic Diversity of Diversity [TIME 01:19:53].

PS, The link for Joel’s book is here.

Season 5 Episode 11 - The Manels

Hello there! This week we talk to Iaroslav Gregirchak, the Ukrainian Deputy Business Ombudsman about the work of that very interesting body [TIME 12:04]. We follow up with a second interview, this one with Andre Luis Monteiro on the cross-section of insolvency arbitration [TIME 49:43]. Happy Fun Time was recorded on International Women’s Day, which prompted us to speak about an ugly creature in the conference-heavy world of arbitration: manels [TIME 01:22:25].

PS, The French-language conference which Saadia mentions initially, co-organized by her firm Gide and the African Academy of the Practice of Public International Law is available here.

Season 5 Episode 10 - The One with Jan Paulsson

The Arbitration Station Book Club is back! We have read The Unruly Notion of Abuse of Rights and we’re talking about that book together with none other than its author Jan Paulsson [TIME 0:14:45]. The second segment is some arbitration fundamenta: challenges of arbitrators [0:47:21], which is followed by a Happy Fun Time discussion on paralegals: how to be one, how to manage one and how to appreciate them all [1:18:13]

Season 5 Episode 9 - The Drafter of the Draft Code

Winter has come to the UK, but the Arbitration Station is full of hot takes. Saadia and Joel speak to University of Richmond law professor Chiara Giorgetti [TIME 07:13], who was heavily involved in the drafting of the Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, issued by ICSID and UNCITRAL (which we first talked about on S04E15). The Draft Code has now received comments from states and other stakeholders and it’s on the table at UNCITRAL this week so the timing is great. Saadia then discusses FDI screening and its intersection with investment disputes [TIME 42:37], before the two law firm employees have a Happy Fun Time talking about filings and what happens to your life during those [TIME 01:07:32].

Season 5 Episode 8 - The Space Arbitration

Well rested from our holiday hiatus, we’re back to tackle some of the truly big issues. First out is investment treaty claims arising out of holocaust survivors’ seized property [TIME 09:03], followed by Rachael O’Grady talking about space arbitration [TIME 30:25]. After opening with the holocaust and space, we go small and end with a Happy Fun Time involving Saadia’s new favorite acronym: ESL, or English as a Second Language [TIME 01:01:03]. What are the challenges facing those of us who work in a non-native language - and what does Brian think of the others’ English?

Season 5 Episode 7 - The Locked Down Holiday Special

Before taking some time off, we finish the season with a much-awaited interview with Kaj Hobér [TIME 14:40], conducted at the Swedish Law Day webinar. Then we sign off this extraordinary year by following longstanding tradition and discussing holiday gifts, both related to arbitration and… less so [TIME 46:10].

Happy Holidays to all, and special thanks to our sponsor IAReporter.

Among the potential gifts mentioned:

JOEL
Girl, Woman, Other

Ducks, Newburyport

Crossing to Safety

BRIAN
Blue Snowball USB Mic

Long Arm Swivel Clamp

The Last Waltz of the Law of Nations

SAADIA

The unruly notion of Abuse of Rights
Identity and Diversity on the International Bench

Is International Law International?

Season 5 Episode 6 - The Court Reporter

Brian and Joel talk to David Kasdan, a very experienced court reporter with hundreds of arbitrations under his belt, about the crucial but sometimes overlooked role as transcriber in chief during an arbitration [TIME 11:31]. Saadia then takes us on a trip through the updated ICC and LCIA Rules [TIME 47:11], before we have a Happy Fun Time talking about boutique/spin-off firms - and this week’s HFT also contains some front-page news [TIME 01:14:08!

Bonus Episode - IAReporter

If you want to work for Investment Arbitration Reporter, now is your chance. The leading publication is looking for contributors and you can apply here. We use this as a reason to bring publisher and founder Luke Peterson on the air to talk about IAReporter, its history, work and contribution to the field of investment arbitration.

Season 5 Episode 5 - The Damages Expert

The sound is a bit bad because we’re sitting so far apart (together with editor Jan). Brian has called up damages expert Brent Kaczmarek [TIME 08:25] to benefit from his experience from hundreds of arbitrations. Joel then discusses sovereign immunity from enforcement, and in particular enforcement against central bank assets [TIME 41:48]. During Happy Fun Time we talk about paperless arbitration, a topic which has taken on new relevance in 2020 [01:05:19].

(The Green Pledge can be signed here)

Season 5 Episode 4 - The Tainted Memories

The fourth episode of the season is loaded with two interviews: Toby Landau QC talks about the fallacy of witness evidence in arbitration. Based on his 2010 Kaplan Lecture, he argues that the way we produce and examine witnesses has some inherent flaws [TIME 08:18]. We then interview academic and in-house counsel Cornel Marian about taxation in international (investment) arbitration, a topic on which he has just published a book [TIME 45:16]. The third and more casual segment is about English-centrism, prompted by a recent blog post [TIME 01:21:51].

Season 5 Episode 3 - The Institutions

This week’s episode is focused on arbitration institutions, and more particularly on their function and liability. Under the firm guidance of Saadia, we discuss the liability of arbitration institutions [TIME 09:10], with some concrete examples of institutions being sued. Brian then talks to Eric Tuchmann, General Counsel of the American Arbitration Association [TIME 48:30] about the role of that institution, including examples of litigation involving the AAA. Happy Fun Time is about Pro Bono culture, with an arbitration angle [TIME [01:19:23].

Season 5 Episode 2 - The Physical Hearing

The first interview of Season 5 is with Jeremy Sharpe, who talks to Joel about the investment law advisory center that is being discussed by UNCITRAL Working Group III [TIME 12:16]. Then Brian dives into an issue which is top of mind in 2020: do parties have a right to a physical hearing [TIME 39:14]. Happy Fun Time is a little gloomy, as Saadia talks about “doom scrolling” and how to avoid it [TIME 01:08:15]. Stay safe, everyone!

Season 5 Episode 1 - The Season Opener

Something nice happening in 2020 - the Arbitration Station is back! Seated in London - responsibly spread out - we start off with the recent UK news that international law is not that important after all [TIME 14:20]. We then look back over the summer and discuss some recent developments in treaty-based renewable cases: is Romania the new Spain [TIME 28:42]? We also engage in perhaps the silliest Happy Fun Time in the history of silly Happy Fun Times: we’re casting the ISDS movie [TIME 49:03]! Who plays Schreuer? Who plays GKK? Listen in, we’re back!

Season 4 Episode 16 - The Season Finale (and the treaty to end all treaties)

With a decimated line-up of hosts, and a Corona-related delay in uploads, we close out the season on a strong note with Joel talking about the enforcement of awards that have been set aside [TIME 11:03] and Brian talking about the treaty to end all* treaties: the plurilateral EU treaty to terminate intra-EU investment BITs [TIME 29:08]. We close out the season with a discussion on domestic legal traditions and their influence in arbitration [TIME 45:07].

Thank you all for this season. Unless the world ends, we intend to be back later in 2020 with a fifth (!) season.

*Not nearly all

Season 4 Episode 15 - Who Wants to be an Arbitrator?

We’re all in greater London but of course we’re still not in the same room. Video recording will have to do, as we discuss the recent Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, issued by ICSID and UNCITRAL [TIME 13:22], as well as the law governing the arbitration agreement, based on a  recent judgment from the Court of Appeal in London [TIME 39:58]. Happy Fun Time gives the episode its name - who wants to be an arbitrator (and how do you become one)? [TIME 01:01:33]

Season 4 Episode 14 - The Umbrella Clauses

We are still in isolation but at some point, we have to stop naming the episodes after that fact. This week, we talk about when and why to bifurcate arbitrations [TIME 09:24], umbrella clauses [TIME 37:20] and about motivating your team and colleagues in these complicated times [TIME 01:04:58].

Stay safe and healthy, arbitration friends!

Season 4 Episode 13 - The Isolation Episode vol. 2

Still in isolation, we return to some of the things that are currently occupying the arbitration community: what are the effects of our collective quarantine, in particular on hearings? [TIME 07:07] The second segment deals with potential investment treaty claims based on Covid-related measures [TIME 40:52]. For Happy Fun Time, we talk about pay freezes, bonuses and salaries in the wake of a potential recession [TIME 01:08:42].

Mentioned in the episode:

The ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic

The Seoul Protocol on Video Conferencing in International Arbitration

Lucas Bento and Jingtian Chen’s article on Kluwer Arbitration Blog

Federica Paddeu and Kate Parlett’s article on Kluwer Arbitration Blog

Season 4 Episode 12 - The Isolation Episode

Recorded in isolation, we talk to each other as therapy. With all events and meetings cancelled or postponed, we try to simulate the ICC European Conference on International Arbitration by talking about two topics that would have been discussed on panels there (and might be this summer when it takes place): tariff wars and arbitration [TIME 11:20] and the European Green Deal (and the Stockholm Treaty Lab winners can be found here) [TIME 33:03]. We also try our best to remain happy and fun with a discussion on greetings protocol in arbitration: how do you know when and who to hug, kiss on the cheek, shake hands (or rub elbows) with [TIME 58:29]?

Season 4 Episode 11 - The Force Majeure

Sitting in the same room for once, we talk about transparency in investment arbitration (specifically the tribunal’s power to order it, as highlighted in the majority v. dissent in Rand Investments v. Serbia) [TIME 11:11]. Then, in these Covid times, we talk about how the current virus scare might lead to disputes under force majeure clauses in contracts [TIME 32:53]. Happy Fun Time is (once again) Brian Kotick show - to open plan or not to open plan? [Time 51:45].