A full recording of the webinar can be streamed here. A text summary of the webinar follows below
YCAP and CJCA Interview of Marek Krasula
November 23, 2021
JP: Welcome. This interview is the first in a series undertaken as a joint project between Young Canadian Arbitration Practitioners, YCAP, and the Canadian Journal of Commercial Arbitration, CJCA, with leading members of the Canadian international arbitration community.
My colleague Özge Yazar and I, James Plotkin, have the pleasure of interviewing Marek Krasula. Marek is the Director of Arbitration and ADR in North America for the ICC International Court of Arbitration. Marek, thank you for joining us today.
MK: My pleasure, it's great to be here.
JP: Let’s start with a few introductory questions just to give the lay of the land. I will kick off with some introductory questions to you to open things up and then Özge will question you a little bit about some practice points that you've experienced from your side of the administrative scene. After that, we'll discuss a little bit about transparency and access to justice issues in arbitration and our final subject is going to be diversity in arbitration. Then we'll have some closing thoughts. If we can start off just a little bit broad, how did you start working at the ICC International Court of Arbitration?
MK: It's an interesting story. I had graduated and finished my LLM back in 2010 and I was wondering what my next steps were going to be. As any student knows well, the first step that you usually take is networking with people and seeing what they did when they started off their careers. I happened to bump into a fellow Canadian in DC who I had seen a few times in Ottawa and is very well-known, Meg Kinnear. Meg is the Secretary General of ICSID. She invited me for coffee at her office, and gave me her perspective on where I should be looking as a Canadian. She had looked at my CV and said, “Marek you speak three languages, Polish, French and English, so you may be an asset to the ICC. Have you considered a career within an arbitral institution?” At that point I had not. So that evening I looked at the ICC Careers website. It turned out that they were looking for someone who spoke French, English and an Eastern European language. That was a great coincidence. About a week later I was hired as a deputy counsel in Paris at the ICC headquarters. And that's where my career began.
I think there's a lesson here. It’s how much practitioners are willing to help younger practitioners by giving them advice to move ahead with their careers. I'm happy that Meg chose to pay it forward. I'm not even sure if she remembers our coffee or our conversation, but I'm happy she chose to sit down with me because she’s one of the reasons why I'm here today.
JP: That's great. By the way, that story mirrors my experience with the generosity of time that more senior people in this field have given to younger people like us. It’s extraordinary and I think that resonates with a lot of younger practitioners in this space.
You mentioned that you had done an LLM. How did your educational background and your experience before joining the ICC play a role in your career at the institution and how did it inform your approach?
MK: I guess I was the typical Canadian coming from Canada who had studied abroad, in my case in the United States, with a common law and kind of civil law perspective. I think what helped me, as I mentioned before, was the language aspect, the fact that I spoke three languages. Often you hear people saying in the abstract that on top of focusing on hard skills like litigation skills and advocacy skills and all that, don't forget about languages. This is a concrete example of where I never expected my mother tongue to be one day used in a professional context. I had to use it in a professional context for the first time when I was working in Paris. It played a huge role in helping me get hired because I was on the team that dealt with cases coming out of Eastern Europe. You may not know that while I was born in Canada, both my parents are Polish. That was the thing that got me through the door.
Coming back to my Canadian roots, before when administrating cases on the Secretariat side (now I'm on the business development side of the ICC Court) I was helping the ICC Court to administer hundreds, I would say now thousands of cases, given that I've been here for almost 8-9 years. Having that common law and civil law background makes a huge difference in how you of interpret, perceive, and understand the different practices in arbitration. I’m very grateful to have that background coming out of Canada. I also did a bit of advocacy work in private practice in Montreal, but I mostly had an interest to work with people from different cultures, from different countries. I said “why not give arbitration a shot”? And I’m glad it worked out.
JP: Great. You mentioned you used to be on the Secretariat side, and you're now on the business development side. I may as well give you an opportunity to do a little bit of business development. If you were to assume the role of an arbitration evangelist, what would be your elevator pitch to potential arbitration users generally, and specifically about arbitrating under the auspices of the ICC.
MK: Okay, let me give this a shot. Global businesses trust ICC Arbitration because they know that we're the only arbitral institution that is truly global – that we are not tied to any geography or subject to shifting political winds. We've been doing this since 1923. Essentially helping businesses get back to doing business.
In 2021, we were ranked as the preferred arbitral institution in the world and in North America, and that was in the Queen Mary University of London and White & Case arbitration survey. Our users or clients know that we understand the needs of global business and they know what to expect from us. We want and expect to be a kind of “one stop shop” for dispute resolution and dispute prevention. We hope to make a dispute resolution services work for everyone in every area. I know this sounds like a cliche, but it's true. We want to make it work for disputes that are domestic and for disputes that are international, including for SMEs [small and mid-size enterprises] which often are forgotten.
We’re of course very well known for dealing with multi-party, multi-contract cases. We also have a toolbox for smaller cases and for all industries. I think that's important to remember. We have a very experienced and professional Secretariat. It consists of folks most of whom have worked previously as associates or interns in big law firms. So they understand that perspective when providing case management services.
Of course, the signature service of ICC Arbitration is draft award scrutiny, where we review draft awards to make sure that before an award is notified to the parties to some extent we improve its quality and enforceability. I think everybody listening to this will agree that you know time and money invested in a case is ultimately only well spent if the award is less susceptible to being set aside or will be voluntarily complied with. Spending money on enforcement procedures is expensive. You want losing parties to understand clearly why they lost and that they were heard. That incentivizes them to voluntarily comply with the award. Hopefully ICC award scrutiny helps achieve that goal.
Finally, I didn't mention predictability and efficiency of the framework, particularly when it comes to costs. Many of you know that the ICC system is an ad valorem system where you know how much it will cost you at the very beginning of the case. There's a cost calculator online that you can consult. You type in the amount of the principal claim and the counterclaims and you'll have kind of a scale that will give you the minimum and the maximum fees for your arbitration subject, of course, to the ICC Court being able to readjust as the arbitration goes on. It gives you a sense of what you expect even before the dispute arises. Something you may not always be able to do in the context of a system that applies an hourly rate for remuneration of arbitrators and where these costs can quickly climb if the arbitrators are not managing their time very well. That was a long pitch, but I hope I covered all the bases.
OY: Thank you for that. Now I will ask questions about our practice related issues. In your experience, how does a counsel’s experience in litigation translate to arbitration? Do you find that lawyers who mainly argue in court have a different style than those who practice arbitration exclusively?
MK: Let me take a step back a little bit to tackle this issue. I think many of the same skills that are required of litigators are actually essential to succeeding in arbitration.
I'll give you some practical examples about how we know at the Secretariat when we're receiving submissions from someone who has mostly practiced in litigation and not necessarily done a lot of arbitration. To come back to what I was mentioning initially, I think litigation is where you're going to hone those basic skills for success in arbitration. It goes without saying that your ability to be persuasive orally involves knowing your case, knowing the law, knowing that client’s business, being quick on your feet, being a good communicator with both the decision-makers and the clients, being good at cross-examination and all that. I think that's obvious that I think a lot of this will be required first and foremost in litigation.
I think good advocacy in international arbitration doesn't stop with these hard skills. Some litigators may like the boxing ring of the local court room. That's not necessarily the best fit for arbitration. In arbitration you see cross-border disputes where you need to be attuned to the reality of there being different parties from different nationalities, from different legal cultures, clients speaking different languages, and arbitrators and opposing counsel who may not be from your jurisdiction. I think that's something to keep in mind.
Then to come back to your initial question, the lawyers who are unfamiliar with the arbitration process tend to treat arbitrations as if they are court proceedings. A sign that they may be unfamiliar with the process and they're actually kind of replicating practices from court is they will say “Your Honor” both in writing and orally. They're going to request direct examination of witnesses. Of course, we know in arbitrations direct testimony is in the form of written witness statements and hearings are usually focused on cross-examinations. What else that I've seen over the years are documents being filed that look like court pleadings, not necessarily like memorials, requests for depositions, interrogatories, and so forth. I know you're listening to this and you're probably shocked, but yes it happens. Extensive discovery, motion practice, and nominations of former judges as arbitrators. I think that's what you'll see more from litigators participating in arbitrations and less from arbitration practitioners, and again not to say that that's not the right fit. There could be cases where a former judge is probably the right fit for your matter, but I think this is something that you will most likely see from folks that don't do arbitration on a regular basis.
OY: Is there a difference between experienced counsel and less experienced counsel in how they go about conducting arbitration proceedings?
MK: Something that has worked well in the litigation world, and now we're seeing more of in arbitration, is dispositive motions. We’re encouraging parties to consider dispositive motions for unmeritorious claims. I think that is a good import from litigation which saves time and costs, and narrows the issues. I think this is a good element that litigators have brought into the arbitration world. It's something that now even exists in the ICC Note on the conduct of arbitration under the ICC Rules. It gives guidance to tribunals to consider these procedural options that perhaps folks were hesitant to use before.
My suggestion to a party would be watch out when you choose attorneys that are going to represent you in an arbitration. You don't want to be engaged in a time-consuming litigation process because you chose specifically not to be there – you chose to be in arbitration. I think clients need to focus hard in choosing the right counsel for an arbitration. The reality is that most counsel I would see when I was on the case management side were counsel who did a lot of arbitration, not exclusively arbitration. It was quite rare to see those who did litigation only making the jump into arbitration, but that still happened.
OY: What issues have you seen from institutional side about which counsel should be attuned?
MK: The obvious one for us at institutions is at the drafting stage. If you’re counsel in a case, or if you are making recommendations whether to insert an arbitration clause into a contract, pay attention to that clause.
Don't insert a boilerplate clause into your contract. Go to the website of whichever institution you're considering and look at its model clauses. Make sure that when you're referring to that institution, it's clearly spelled out and that there's a clear reference to its rules. Make sure that the intended scope of your arbitration clause is also clear because if you don't check these boxes, you're going to turn your process into something very time-consuming, expensive, and probably quite disruptive. Consider what you want out of the process. What will be most appropriate before the dispute arises. Once the dispute does arise, it's really too late to get agreement from the other side on, for example, the place of arbitration or the applicable law. So, these are things to consider in addition to the number of arbitrators, and the particular characteristics of your tribunal members. How are the parties going to choose the tribunal president? Is there a time limit for the case? Where is the hearing to take place? Is it going to be at the place of arbitration? Is it going to be in-person? Do you want to make that choice or not? These are things to think about that are important. Also, confidentiality. Do you want to write confidentiality into your clause or not? Do you want to consider an escalation clause with mediation or other forms of ADR before arbitration? Do you want to consider spelling out how costs will be allocated? Or do you want to give that power to the tribunal to decide at its discretion? So, pay attention to your clause and these numerous considerations.
Another thing I would say to counsel is to streamline your submissions. I think a lot of arbitral tribunals are exhausted by having to read 200- or 300-page submissions with multiple exhibits. Distill it to what you think is most important for your tribunal to know. When you are writing your submissions, keep in mind that you want to be able to help your tribunal write a good award. It may sound very basic, but a lot of counsel get that wrong. Make sure all of your submissions are supported by the applicable law, and by the evidence.
To give you a concrete example, I see many submissions where a party just says that we request interest on X amount. They give the tribunal absolutely no guidance on what basis to provide for interest. What would be the interest rate? When would it start running and when should it end? This creates a lot of awkwardness. A lot of tribunals then have to get back to counsel with questions because they're unable to decide on the issue. Not that they don't want to, but they haven't received any guidance from the parties themselves. In the context of an ICC Arbitration, that may result in an award not being approved by the ICC Court because there are not sufficient reasons to justify a particular finding. The ICC Court then tells the tribunal that perhaps it wants to reopen the proceedings and get more submissions from the parties on these points. It creates this cycle of additional costs and additional time being spent on a case. Definitely you want to pay attention to these things.
Last on my list is choose the right arbitrators. A lot of the delays resulting in many cases are because parties are choosing arbitrators who are extremely busy. When vetting your candidates, pay attention not only to their expertise and their background, but also pay attention to their availability and to their case management skills. That should remain a top priority for counsel when selecting their decision-maker.
JP: For our next topic, I'd like to zoom out a little bit and talk about transparency and access to justice. Given that parties in commercial arbitrations often opt for confidentiality, either expressly or by incorporating rules that provide for it, how does the ICC in particular address, or plan to address, the increasing demands for transparency in commercial arbitration?
MK: People often forget is that ICC Arbitrations are not automatically confidential. If you want to make sure that an arbitration is going to be confidential, put that in your clause. Of course, the institution will treat your case as being confidential vis-à-vis the outside world but between the parties that is not automatic. Be wary of that.
When it comes to transparency, there were many changes that have been introduced over the years with respect to the inner workings of the ICC Court and elsewhere. They have been a direct response to the growing demand for transparency and, not just transparency, but also accountability in international arbitration. And why? It is because we want arbitration to remain a trusted tool and we want to provide greater confidence. Transparency provides greater confidence in in the arbitration process. It helps to protect against ill-informed criticism.
I remember when we had articles in The New York Times equating arbitration to some Guantanamo Bay-like process which is obscure, and arguing that the veil needed to be lifted on arbitration. Of course, that was perhaps not the best comparison. But things need to be done in order to make the process less obscure. I think that is one way of improving what we, as service providers, do. We need to strengthen the legitimacy of arbitration. The issue of transparency is connected to the issue legitimacy of the arbitration process. How we increase that legitimacy is by giving users, parties and the business community at large, and academia, more information about what is happening.
Let's talk about, briefly, perhaps a few changes that were introduced in the ICC Rules and what the ICC has been doing with respect to transparency. I think the obvious one is the ICC Court now is providing and communicating reasons for some of its administrative decisions. One of them, the most popular one where we provide reasons most often, is with respect to challenges to arbitrators. Now parties can make that challenge request and we will provide them, within a few days, the reasons why the ICC Court decided to uphold or reject a challenge against an arbitrator. Do expect more developments. I think what we want to do in due course is publish a compendium of anonymized challenge decisions so people understand what happens behind the scenes and have better idea of how the ICC Court actually decides these issues. That will strengthen confidence in the system.
Another thing that we've done is published on our website the composition of ICC tribunals, the identity of counsel, and the name of the administrative secretary, as well as the sector of the industry that is involved in the dispute. The idea behind it is to show that ICC Arbitration and arbitration in general is not necessarily a club of the same repeat players always being appointed by institutions. This gives folks an insider's perspective that they didn't have a few years ago.
The other important thing we have done on transparency concerns the publication of awards. As of January 2019, final awards as well as certain orders and dissenting and concurring opinions may be published in their entirety no earlier than two years after their date. You're seeing now on the Jus Mundi website a few ICC cases that have appeared in an anonymized or pseudonymized form that can be accessed for free. Hopefully those measures go a long way in making ICC Arbitration and arbitration in general more transparent.
JP: That's great, and yes, I think the Guantanamo Bay reference might have been a little harsh, but it's good to see the ICC doing its part to take us out of the star chamber, at least. Switching gears, a bit, what percentage of parties participating in ICC Arbitration are self-represented and what challenges do you find self-represented parties face in an arbitration.
MK: We have not kept track of that number. A connected challenge is the number of non-participating parties because you can equate self-represented and non-participating parties to some extent. I wish we had kept track because these cases raise many substantive and thorny procedural issues on the case administration side. Also, how does a tribunal deal with someone who is self-represented in the context of arbitration?
To backtrack a little bit, I think often the question of self-representation in arbitration is connected to parties being unwilling to spend money on the process, maybe because they rightly think they shouldn't be in the process in the first place. Perhaps, there's no jurisdiction over them in any event, so they're not going to hire legal counsel and spend more money on something that they find is a frivolous claim. That is done strategically. It's often a big gamble. Sometimes it works, sometimes it doesn't. It's often related, as I mentioned before, to the fact that they don't have the money to participate in the process so they will just go along with it, and this creates problems also for the claimant. The claimant in these scenarios will probably have to advance the entire cost of the arbitration, which, as you can imagine, doesn't make the claimant very happy.
When you have a self-represented party, it is very frequently disruptive. A lot of them lack clear knowledge of how the rules function, and will often use delay tactics such as challenges against arbitrators, or requesting postponements of the matter or the hearing.
Seeing individuals or parties being self-represented is not necessarily a bad thing. I've actually heard and seen companies purposely not hire legal counsel as a way of saving money in a straightforward claim because that's the bulk of costs in an arbitration. So as a way of saving money, they've decided to run the case in-house. It's not always the case that a self-represented party is doing that to be disruptive, but it may actually have strategically decided to do so, because in the circumstance it makes more sense to represent yourself than have attorneys represent you. Or perhaps you may want to have attorneys as consultants on the side, helping you in the background but actually you're running the case yourself.
JP: Again with reference to self-represented litigants, but also you had mentioned earlier small and medium sized enterprises, what has the ICC done recently to increase access to justice through its process for not only self-represented arbitration participants but also for smaller entities that may be able to afford counsel if they want but are of lesser means in prosecuting their claims or defending/responding to claims?
MK: Here it’s almost impossible not to talk about the ICC Expedited Procedure Rules which apply automatically to cases that are below a certain threshold. As of 2021, that threshold is US $3,000,000. In 2017, when we had come up with these Rules the threshold was lower, it was US $2,000,000. I think that is a testament to the fact that this process functions. You get awards.
The two questions and concerns that come up most of the time from SMEs and users generally is whether it is even possible to present your case and get an award in six months, and whether arbitrators able to do it and to give you something that is of high quality. I think the answer is a resounding “yes” to both questions, partly because you only have one arbitrator deciding the matter.
Remember the guiding principle behind arbitration, at least ICC Arbitration, is that the time the cost should be proportional to the amount at stake. There's really no reason for a case that is below $2 or $3 million to take two years to be resolved. SMEs want to move on with their businesses. They want to get back to doing business and I think this has been a solution to an enduring problem in arbitration, which is time and cost.
We made these rules automatic, and I think SMEs welcome it. Of course, parties are able to object. There may be certain small disputes that are not appropriate for Expedited Procedure Rules, and the ICC Court can, for example, decide that a case, even though it's below the threshold, will not proceed under those expedited provisions. We made them mandatory because there's conflicting priorities between parties, counsel and the arbitrators. Unless you made them mandatory, it's unlikely that folks would have chosen the expedited process.
I think that has definitely worked out and, if I remember my numbers correctly, about 67% of awards have been rendered within the promised time limit of six months. Last time I looked at the numbers we had over 260 cases already proceeding under those rules, both automatically and also through an opt-in process, because again they apply automatically to certain cases, but you also have a good set of cases where both parties agreed to opt-in specifically to get the rules to apply to cases that are bigger than the threshold amount that I mentioned. We've even seen a case that was something like US $100 million proceed under the expedited provisions. The encouraging aspect of this process is that also about a fourth, so 25% of expedited cases are on an opt-in basis. Parties are consciously choosing to use them to resolve their disputes.
To make the connection with what I was mentioning before about costs, well, because the time limit is shorter, you have fewer submissions, you have shorter timeframes for document production and in a lot of these cases, you don't have oral hearings. There is also less due process paranoia from tribunal members because of the discretion under the rules to decide whether there will be an oral hearing. You're not entitled to a hearing. The arbitrator can say, “I don't think this this case requires a hearing and therefore we're going to decide it on the basis of documents only”, and the rules explicitly spell that out. I think that gives the tribunals a bit more leverage. They worry less about what would perhaps happen if they took a similar decision in a regular arbitration.
I think that has gone a long way towards addressing what you were mentioning about the concerns of SMEs, which don't want to be in an arbitration. They want a solution to a business problem, and they want to move on. Hopefully we'll see more of that in the future.
JP: That's interesting. I was unaware of the prevalence of opt-in to the Expedited Procedure Rules, and that's a pleasantly surprising sign that parties and counsel are making really clearheaded decisions about just how heavy a process they need in a given circumstance, as you said, even if there are 10s or even 100s of millions of dollars at stake.
Our last question under this heading, Marek, and you alluded to it earlier in talking about the partnership with Jus Mundi, are there further plans from the ICC perspective to enhance access to not only anonymized awards but even procedural orders and other tools for parties?
MK: Yes, and we often forget, but we've been doing that over a few years now. We've been publicizing anonymized or extracts of procedural orders, and for those who are interested, you can go to the ICC Dispute Resolution Library online (ICCDRL.com). There's a search engine that allows you to get exactly what I was mentioning, extracts, examples of procedural orders that have dealt with particular issues. Also, the ICC was publishing summaries of certain decisions that were taken regarding challenges to arbitrators and things like that, and again, an anonymized version. But those things take time and resources. We're trying to do it more frequently, and to be more systematic about it, so that information is more readily and quickly available to parties who want to get a better sense of what is going on. Also, let's not forget the rule of law, so parties have as precedents for their own cases.
OY: Thank you. I will now move on to a different topic. Now that we have you here from an institutional perspective, we also want to ask about diversity. My first question is, has the ICC observed that its users find diversity important and if they do, what's the diversity that they find important? Is it the arbitrators? Is that the apparatus of the ICC itself? What do you think?
MK: I think diversity and inclusion are really at the core of the work of the ICC as a whole and really in all of its forms: racial, ethnic, gender, generational, geographic, and we can come back specifically on each of these elements after. Sexual orientation and disability were two initiatives that were recently launched. I think diversity and inclusion are essential to maintaining, we touched upon it before, the legitimacy of arbitration as a method of dispute resolution for the community. Users demand that arbitration reflects their actual community and that we ensure that their values are actually reflected in the service that we are providing. So those things really go hand and hand
Some of you may know this, or perhaps not, but in 2021 we had the most diverse ICC Court in history. We had 195 members drawn from 120 countries with women in the majority and with greater representation from Africa than ever before. I think that is a huge accomplishment and, we have gender parity on the ICC Court. I've seen the real effects over the years of putting women in power and how that has resulted in more diverse appointments over time. That’s definitely a concrete result.
I mentioned the ICC Court but also let's talk about the ICC Secretariat. It’s a very diverse group. We manage cases from all over the world. 70% of the Secretariat are women; 30% are men. We come from 30 different countries. We speak 33 different languages. I think that is also a reflection of how diverse this institution is.
Let's talk briefly about the arbitrators themselves, coming from 92 countries in 2020. Of course, many of them still come from Europe and North America generally. I think that's something that needs to change in in the future. 23.4% were women serving as arbitrators in ICC cases.
Let's touch upon the generational aspect to the ICC Court. The Court generally appoints arbitrators who are younger than parties propose. I think the average age of party nominees is about 56 years old. The average age for Court appointments is 50-51 years old. You see also when it comes to men and women, the individuals appointed by the Court are usually five years younger than those the parties have been proposing. For the parties, it's 58 years old for men and 49 years old for women, and for the Court is 53 years old for men and 46 years old for women. Definitely that's something that is very high on the Court's priority list.
We can talk also about some general ICC internal practices about diversity. As you may know, we don't have a roster at the ICC. Anybody can be an ICC arbitrator, as long as the person is independent, impartial, and available. Sometimes parties ask us to produce lists of individuals that they can then strike and rank. So definitely diversity in all its forms is considered when producing names for such lists. We were talking before about the transparency measures that we've taken to publish the names of arbitrators serving in ICC cases and I forgot to mention that another reason we did that is really to show people that we have this unwritten rule that usually we will not appoint, unless or in exceptional circumstances, a single individual more often than once a year. That helps greatly to increase and diversify the pool of arbitrators so there are no repeat players in the process.
I can also mention, because we don't have a roster, we rely a lot on national committees. We ask ICC Canada, as many of you may know, to give us proposals of arbitrators who may be suitable to serve in particular cases when the ICC Court needs to appoint. There are guidelines also on diversity of candidates nominated by national committees. As you can see, diversity and inclusion are factored in at all levels of the appointment process at the ICC.
An interesting fact here. 75% of arbitrators in ICC cases are nominated by the parties or jointly nominated by the co-arbitrators when it comes, for example, to the president of the tribunal. So, the ICC court only intervenes in 25% of cases where we have to make an appointment. I mean there's a lot that we can do but the vast majority of the appointments are done by the parties, so there's a lot to be done on the party-side too.
OY: It does sound like ICC is doing a lot to increase the different types of diversity, but do you find that the users ever demand a type of diversity, whether it be from a gender perspective or nationality or other things?
MK: Absolutely, I think that's part of the conversation with the users. You will often hear from the users that they want the lists to reflect their own identities and the nature of global business now. Global business is a diverse environment or at least getting more diverse than it used to be. Users expect the same from arbitral institutions when they have a roster, or when they provide a list of potential arbitrators for consideration for a case. I think users are making those demands and we have to be able to respond to those demands.
OY: In such a party driven process as arbitration is, what role do you think an arbitral institution has in promoting these diversity goals?
MK: Oh, a very important one, and for the reason that I mentioned before, we are a service provider. We want that service to reflect with the community what businesses want, and we need to be leaders there. There's no question about that.
I think we are taking the right steps. I did mention before two additional steps that we've taken with respect to disability and sexual orientation. We created an ICC Commission task force on disability inclusion in international arbitration so that this process actually does include skilled practitioners with disabilities. The second initiative was to create an LGBTQIA network within the ICC Court with the aim of creating a safe and inclusive space for members to be their authentic selves. And so I think those are two initiatives that are also very important and that we don't talk about often enough in the context of diversity and inclusion in arbitration.
JP: Well, thanks for that Marek. So just to close out, as you know, there's always a hot issue in arbitration. I think about 10 years ago it was emergency arbitrator regimes and then we had talked about the early determination procedures, and I don't know how much ink has been spilled on third party funding. What do you think the next big hot button issue in international arbitration is going to be?
MK: I won't be very original with this answer. As you all know, there are lots of different arbitration service providers and there are some international commercial courts out there also open to resolving international commercial disputes. So, there's really a race to the top. Some people may think this is kind of a race to the bottom.
We can offer the cheaper, quicker service, but the race is really kind of upwards: who can provide the best quality services? And that ties in with what needs to be our focus going forward. It's one that you mentioned before: the need to focus on SMEs. They are a huge and important part of the global economy that have been really affected by the COVID-19 pandemic as courts are backlogged. They are looking to arbitral institutions to provide solutions and we want them to go back to doing business. It's really important that we communicate to them. We can help them with low and medium sized disputes. It is not to say that we shouldn't be focusing on big disputes, we should, but the pie is much bigger than that. So, we have to look at how we improve the arbitration process. I'll have a few more thoughts about that later in my answer.
Let's not just focus on arbitration. Let's also focus on dispute avoidance mechanisms, mediation and dispute boards. Things that we already offer at the ICC, but we need to talk a bit more about.
Expedited procedures, we talked about it before, and that's something also this needs to be highlighted. I mentioned refashioning the arbitration process a little bit and this is something that our current ICC Court President, Claudia Salomon, and I think Toby Landau, had mentioned in a recent interview. We have developed this huge amount of procedural redundancy in how we structure arbitrations. You know how procedural order number one is put together, how the procedural timetable is done. We need more innovation in the process, and I think it needs to be reinvented to make it more aligned with the needs of users of arbitration. As I mentioned, do we need to such long submissions? Can we find a way reduce the number of submissions that are that are submitted in a case? Does the typical procedural timetable that we use need to be reinvented in a way?
This is something that the expedited rules have addressed by saying well, actually there is an alternative and we can still accomplish the same goals in a short amount of time. It might not be the hot button issue, but I think where we should focus our efforts is streamlining this process and making it responsive to those smaller disputes which actually are a huge portion of our caseload. People forget that at the ICC, 30% of our caseload is below US $3 million. There's this impression that our arbitral institution just deals with the huge cross-border disputes, but not with the small ones, and that's not true. I think we need to focus on resolving and making the process better for the smaller disputes that are likely going to come our way in bigger numbers over the years.
JP: That's quite right, and I think that's all very consistent with the notion of arbitration as a flexible dispute resolution process where the cloth can be cut to fit the dispute. On that note Marek, thank you very much on behalf of myself, Özge, YCAP and the CJCA. This has been a really great experience. We thank you for your time.
MK: Thank you for having me.