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Veeder Manuscript Final.Pdf VV Veeder QC Memorial Volume, ICCA Congress Series AN ICCA CONGRESS SERIES TRIBUTE TO JOHNNY VEEDER (1948 – 2020) General Editors: The ICCA Bureau with the assistance of the Permanent Court of Arbitration Peace Palace, The Hague Published by: International Council for Commercial Arbitration (ICCA) Peace Palace, Carnegieplein 2 2517 KJ The Hague, Netherlands Website: www.arbitration-icca.org ISBN: 978-94-92405-18-0 All rights reserved. © 2020 International Council for Commercial Arbitration (ICCA) Foreword Johnny’s modesty was legendary. And nothing we could say would be better than allowing his words to speak for themselves. ICCA President Lucy Reed ICCA President Gabrielle Kaufmann-Kohler (2020 – ) (2018 - 2020) ICCA Executive Director Lise Bosman ICCA President Donald Donovan (2012 – ) (2016 – 2018) ICCA President Albert Jan van den Berg ICCA President Jan Paulsson (2014 – 2016) (2010 – 2014) ICCA President Gerold Herrmann ICCA President Fali Nariman (2002 – 2010) (1994 – 2002) ICCA President Georgio Bernini (1986 – 1994) iii ICCA 50th Anniversary Conference Geneva, 2011 TABLE OF CONTENTS FOREWORD iii TABLE OF CONTENTS vii ICCA CONGRESS SERIES NO. 5 STOCKHOLM, 1990 Preventing Delay and Disruption of Arbitration: Effective Proceedings in Construction Cases Panel Session: Working Group I: Preventing Delay and Disruption of Arbitration Law and Court Decisions in Common Law Countries and the UNCITRAL Model Law 3 ICCA CONGRESS SERIES NO. 7 VIENNA, 1994 Planning Efficient Arbitration Proceedings: The Law Applicable in International Arbitration Panel Session: Working Group II: The Law Applicable in International Arbitration Towards a Possible Solution: Limitation, Interest and Assignment in London and Paris 9 ICCA CONGRESS SERIES NO. 9 PARIS, 1998 Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of the Application of the New York Convention Panel Session: Working Group I: Arbitration Clauses: Achieving Effectiveness Summary of Discussion in The First Working Group 37 vii TABLE OF CONTENTS ICCA CONGRESS SERIES NO. 11 LONDON, 2002 International Commercial Arbitration: Important Contemporary Questions Postscript 43 ICCA CONGRESS SERIES NO. 12 BEIJING, 2004 New Horizons in International Commercial Arbitration and Beyond Panel Session: Provisional/Interim Measures The Need for Cross-Border Enforcement of Interim Measures Ordered by a State Court in Support of the International Arbitral Process 55 ICCA CONGRESS SERIES NO. 13 MONTREAL, 2006 International Arbitration 2006: Back to Basics? Panel Session: Working Group B: Contemporary Practice in the Conduct of Proceedings (Round Table on Oral Argument) “Oral Argument”: Report of the Session 87 ICCA CONGRESS SERIES NO. 14 DUBLIN, 2008 50 Years of the New York Convention Panel Session: Present Expectations and Realities (Investment Treaty Arbitration and Commercial Arbitration: Are They Different Ball Games?) Introduction to Investment Treaty Arbitration and Commercial Arbitration: Are They Different Ball Games? 107 viii TABLE OF CONTENTS ICCA CONGRESS SERIES NO. 15 RIO DE JANEIRO, 2010 Arbitration Advocacy in Changing Times Panel Session: Strategic Management in Commencing an Arbitration Strategic Management in Commencing an Arbitration 111 ICCA CONGRESS SERIES NO. 16 GENEVA, 2011 Arbitration – The Next 50 Years: 50th Anniversary Conference Gala Dinner Address Memories from ICCA’s First Fifty Years 121 ICCA CONGRESS SERIES NO. 17 SINGAPORE, 2012 International Arbitration: The Coming of a New Age? Panel Session: Judicial Debate on the General Theme: “State Courts and International Arbitration: The Future” Introductory Remarks 129 ICCA CONGRESS SERIES NO. 18 MIAMI, 2014 International Arbitration: Myths, Realities and Challenges Panel Session: (B-Justice Stream) B1 Who Are the Arbitrators? Who Are the Arbitrators? 155 ix ICCA Congress Series No. 5 Stockholm, 1990 Preventing Delay and Disruption of Arbitration: Effective Proceedings in Construction Cases Laws and Court Decisions in Common Law Countries and the UNCITRAL Model Law V.V. Veeder1 There are two fundamentally different kinds of international arbitration at each opposite end of the arbitral rainbow: The first kind takes place within relatively narrow commercial communities, between international parties, international arbitrators and specialized lawyers within the same traditional family, invariably known to each other and mutually dependent on each other for the continuing success of their commercial dealings and their methods of resolving international commercial disputes. Here, arbitration may be fought fiercely by the disputant parties – but it will not be total war. Such is London maritime arbitration, an ad hoc or non-institutional form of arbitration2 – as described by the late Cedric BARCLAY, who was one of the most prominent and experienced arbitrators in London Arbitration and a member of ICCA: “ ... There is little acrimony in maritime disputes. Arbitration is a way of life. It is a daily occurrence. Many maj or firms and even state enterprises may start a case every other day. It is easier to refer differences to experienced arbitrators, rather than to exchange lengthy arguments by correspondence…”3 It is this relatively benign kind of arbitration which has represented the majority of international commercial arbitrations, in London as in other jurisdictions, between commercial parties from all over the world. The second kind of international arbitration, numerically much less significant, is between strangers from different business communities, usually engaged in a one-off dispute forming the end of a soured commercial relationship. Here, sometimes, total 1. This Rapporteur acknowledges with thanks and appreciation the generous help provided by the following: Sir Johan STEYN, Joseph NEUHAUS (UNCITRAL Model Law), Tony DE FINA (Australia); Murray SMITH (Canada);John SCOTT (Hong Kong); Fali NARIMAN (India); Arthur ROVINE and Robert COULSON (USA); and JAN PAULSSON; and on English law and practice: David BIRD, Bruce HARRIS, Nicholas LEGH-JONES Q.C., Kenneth SEVERN, Pamela KIRBY JOHNSON (GAFTA), George HARDEE (LMAA) and R.A. EDWARDS (LME). All errors should of course be blamed on the Rapporteur or better still, on the “poachers” who requested complete anonymity in return for disclosing their dilatory and other disruptive tactics. 2. The terms “ad hoc” and “non-institutional” arbitration are used in this Report to mean an arbitration agreement not providing for arbitration before a permanent arbitral institution or authority (e.g., the International Chamber of Commerce (ICC) or the Moscow Arbitration Court) or under a standard form set of arbitration rules consensually incorporated into the arbitration agreement (e.g., the UNCITRAL Arbitration Rules). 3. BARCLAY, “Practical Experience in Maritime Arbitration” (1983) reprinted in 5 Arb. Int’l. (1989) p. 116 at p. 117. 3 V.V. VEEDER QC MEMORIAL VOLUME: ICCA CONGRESS SERIES war can be waged at its worst; and the conflict between the parties can also invade the tribunal, unbalancing its equilibrium. For example, it is notorious that the abuse of the party-arbitrator appointment, whereby one party’s advocate invades the tribunal disguised as an arbitrator, can bring unfairness, delay and extra cost to the arbitral process. – Unfairness because the other party will not ordinarily have abused its right to appoint an independent and impartial arbitrator; the tribunal can thus be unbalanced in favour of the miscreant party; and there will then be no level playing-field for both parties in the arbitration. – Delay and extra cost because the adversarial process between the parties will be mirrored within the arbitral tribunal, unnecessarily duplicating the same adversarial exercise and at worst subjecting the arbitration to further extreme difficulties. Recently, the English Commercial Court took care to note expressly when enforcing an international majority award the fact that the dissident arbitrator had expressed views “favourable to (his appointor) on virtually every extant issue.”4 At The Hague, the UNCITRAL Arbitration Rules are being tested by conduct which their draftsmen can hardly have foreseen, from deliberate leaks from party-appointed arbitrators to their party-appointees, to physical assaults on members of the arbitral tribunal.5 In the USA, it has not hitherto been the practice after the award for a party to place an arbitrator under surveillance by private detectives – until now.6 Elsewhere, as is well-known, parties to arbitration have resorted to threats and conduct no less rough and unsavoury. At its very worst, in the view of many commentators, this second kind of arbitration may threaten the effectiveness and acceptability of international commercial arbitration in every national jurisdiction, by introducing innovative tactics and different standards of conduct for parties and arbitrators for all kinds of arbitrations in an increasingly litigious world – particularly in the hands of recalcitrant respondents. There is concern that the national and international framework for arbitration was not designed for such miscreant misconduct. As the US Supreme Court noted in Mitsubishi: “ ... As international trade has expanded in recent decades, so too has the use of international arbitration to resolve disputes arising in the course of that trade. The controversies that international arbitral institutions are called upon to resolve have increased in diversity as well as in complexity. Yet the potential of these tribunals for efficient disposition
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