ICC Canada Annual Conference, Afternoon Session: Keynote Address by ICSID Secretary-General Meg Kinnear and Modified Tylney
The International Chamber of Commerce Canada (ICC Canada) conference featured an address by Meg Kinnear, the Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID). Kinnear’s address focused on the recently approved amendments to the ICSID Rules, which were last updated in 2006. In November 2021, the amendment was ratified with approval from 85% of member states.
First, Kinnear discussed how the amendments updated ICSID’s conciliation rules. A new set of rules for investor-state mediation have been adopted, which are available in both ICSID and non-ICSID cases. Concerns had been raised by counsel that many states will not be interested in using mediation, or that mediation processes are made cumbersome by the need for governmental approval of settlements. However, she remained optimistic as mediation is required by many newer investment treaties and helps to mitigate risks associated with foreign direct investment. Further, there are now mechanisms for the enforcement of mediated settlements, specifically through the Singapore Convention, which has been ratified by over 50 countries.
Second, Kinnear highlighted how ICSID has expanded the rules on what investment disputes are eligible to be resolved through the ICSID process. Formerly, disputes were only eligible for resolution through ICSID when both the investor’s home state and the host state had ratified the ICSID Convention or, under the ICSID Additional Facility, if one of the states involved was an ICSID Contracting State. The new rules provided for access to arbitration under the ICSID Additional Facility to be expanded to disputes not involving any ICSID States, as well as regional economic integration organizations (REIOs). She noted how REIOs are increasingly becoming an important part of the international sphere, particularly in Africa. In addition, the definition of investor was revised to clarify the status of dual nationals.
Third, Kinnear outlined how the amendments address issues of time and costs. Default timelines have been significantly reduced; jurisdictional challenges must now be brought forward within 21 days, and awards on jurisdiction and merits must be decided within 6 months. Kinnear acknowledged that these targets are quite ambitious and may need to be extended in individual cases. The amendments also introduce required case management conferences, which will help to ensure that these timelines are met. There is also now greater ability to consolidate related cases, to file documents electronically, and to conduct hearings remotely.
The keynote address touched on transparency, conflicts of interest, and diversity. The 2022 Rules mandate that all decisional documents are to be made public, with additional rules implemented for redaction of sensitive information, responding to an increasing demand for transparency. Third party funding has also become a contentious issue, so a rule was adopted to require funded parties do disclose the identity of their funder, in order to identify arbitrator conflicts of interest. Lastly, Kinnear explained that the new ballot system adopted for appointing arbitrators has had the result of promoting many lesser known and diverse arbitrators.
Modified Tylney Debate
After the keynote address, the ICC hosted a modified Tylney debate, moderated by Robert Deane, (Borden Ladner Gervais LLP), and panelists Fabien Gélinas (McGill University) and Erin Miller Rankin (Freshfields).
The Future of the Arbitration Witness
The first topic was “the future of the arbitration witness”. Rankin began by explaining increasing concerns regarding the reliability of written witnesses’ statements. She noted how there are often disparities between the language used in the written document, which is often complex legalese, and what would be expected of the witness. This presents the question: are witness statements too heavily influenced by counsel?
At this point members of the audience began to participate, observing that rendering a lay witness’s testimony in legalese may discredit the witness and is ultimately self-defeating. It was also discussed how the English Commercial Court has introduced a pilot program, which requires that a statement be signed by the witness, all documents shown to the witness be listed and counsel must also sign this document. This approach was problematized by Rankin, who pointed out that this is only actually effective if there are consequences for counsel who are too aggressive in drafting witness statements for their witnesses. An audience member also expressed concern that this pilot program would create a system of meta-analysis, where witness statements must be assessed for compliance with the rules before they can be introduced, which ultimately expends additional time.
The panelists also discussed how the length of many disputes requires witnesses to recall information from many years prior, so help from lawyers to organize their thoughts is often required. Rankin mentioned that witnesses come from diverse backgrounds, so arbitrators should be trained on how to contextualize statement by witnesses from various cultural backgrounds. Discussion of this topic ended with some mention of direct examinations, with panelists querying whether some of the problems with witness statements could be resolved by allowing direct examination to take place instead of relying on written statements alone.
The Future of Arbitration Costs
The topic of the second discussion was “the future of arbitration costs,” which began with Gélinas broadly discussing how there has been an increased demand for the standardization of reasons for cost awards. As the ICC has published more information about decisions, there has been pressure has increased for arbitrators to give more and more reasoning regarding cost decisions. Such standardization would restrict the discretion of arbitrators over costs, resulting in “fossilization” of costs allocations, which would make them less effective in achieving their purpose.
An audience member brought up the issue of costs being argued together with the merits, as is common in the investor-state context, and there was some disagreement among participants about whether it is preferable for cost requests to be submitted with the merits arguments, or only after the merits are decided. Presenting merits arguments and costs requests at the same time is more efficient but can also introduce some artificiality and awkwardness to decisions on costs. Additional comments were made on how arbitrators should be more willing to issue cost awards on an interim basis as a particular phase of the proceeding comes to an end, particularly when that phase deals with a discrete issue. It was commented this would help to discourage bad party behaviour, where a side will attempt to draw out a particular part of the proceeding to put financial pressure on the other side.
Arbitration as an Aspect of Civil Justice
The final topic of the Modified Tylney was “arbitration as an aspect of civil justice”. Gélinas began by discussing how there have recently been a high number of arbitral award annulments in Paris. He commented that “the path ahead of us does not look like a freshly paved highway”, with the arbitration process seemingly losing credibility in the eyes of the public. He pointed out a general failure of the arbitration community to explain the institution of arbitration and, in particular, how important arbitration is in the international space. Rankin added that the best thing practitioners can do is to use arbitration in a legitimate way to highlight its importance. Gélines continued by saying that part of the difficulty of fostering public understanding of arbitration is that it does not operate as part of a hierarchical scheme. He explained how arbitration is accountable to the law and to the contract of the party, instead of to a party themselves or to a jurisdiction. A member of the audience added that the decision in Uber v Heller would seem to suggest that the scope of arbitration may have become too expansive, that there was never an intension for the system to be used to resolve Canadian employment disputes in the Netherlands. The conversation concluded with the idea that arbitration between (relatively equal) commercial parties is a fundamentally different thing than that between hierarchically dissimilar parties, whether those are employer/employee, merchant/consumer, or state/investor.
This session of the ICC Canada Conference concluded with the announcement of election results for ICC Canada Arbitration Committee Vice-Chair. The winner was Craig Chiasson.