Young Canadian Arbitration Practitioners (YCAP) Symposium with ICC YAF
On September 24, 2020, the Young Canadian Arbitration Practitioners (YCAP) hosted its 2020 Fall Symposium in conjunction with the International Chamber of Commerce Young Arbitrators Forum (ICC YAF), as part of the first-ever CanArbWeek. The session was organized into two distinct portions: a networking event and a debate on the impact of technology on international arbitration.
The session began with Alex Mitretodis (Fasken) welcoming all participants and thanking the organizers of the event. After a short introductory message from the co-chairs of CanArbWeek, participants were sent into small virtual breakout rooms with 4-5 others. Attendees spent the next thirty minutes getting to know each other and exchanging anecdotes from their professional lives.
Debating the Future of International Arbitration
Moderated by Martin Doe (Permanent Court of Arbitration) and judged by the viewers, the debate involved two equally impressive teams who argued a pair of related propositions both dealing with the impact of technology in international arbitration. Team Red consisted of Sandra Lange (McCarthy Tetrault) and Hugh Meighen (BLG), while Team Blue consisted of Christina Doria (Baker McKenzie) and Annie Lespérance (Omni Bridgeway).
To provide maximum entertainment, the teams were instructed to take an extreme position on each resolution. Furthermore, viewers were invited to use Zoom’s chat forum to heckle and comment throughout the debate.
Proposition #1: Be It Resolved That “Electronic arbitration, from documents to hearings, should be the default in arbitration
Team Red: In Favour
Sandra Lange led the charge for Team Red, methodically explaining the procedural benefits of arbitration in a virtual forum. First, the widespread adoption of technology makes virtual hearings a natural step forward for the arbitration community. Lange noted that even in developing countries such as Nigeria, more people have access to a reliable internet connection than to reliable sanitation. Second, virtual hearings can yield better evidence, as shy or timid witnesses will feel more comfortable testifying behind a computer screen. Third, virtual hearings provide greater access to justice. Unlike in-person arbitrations, individuals will not have to travel to a designated place of arbitration – instead, they simply need to log onto a secured virtual space. Less travel will also lead to cost savings for all parties involved, and paperless transactions will contribute to a cleaner environment. Finally, Lange pointed out that the Supreme Court of Canada has been conducting virtual hearings—if a virtual platform is good enough for Canada’s highest court, why should the arbitration community resist it?
Hugh Meighen spoke next, explaining that virtual hearings also provide substantive benefits over in-person hearings. First, certain cases are more effectively resolved over a virtual platform. For example, small claims are often forced to settle because claimants cannot afford the costs of preparing for in-person hearings. Since virtual hearings are more cost-effective, electronic arbitrations will provide all claims with “equal footing.” Meighen reaffirmed Lange’s argument that some witnesses may testify better in a virtual setting, allowing parties to present their cases as fully as possible. Overall, virtual hearings are better than in-person hearings; while choice should always remain with the parties, virtual hearings should be the default.
Team Blue: Against
Christina Doria provided three reasons why electronic arbitrations should not be the new status quo. First, due process can easily be impeded in virtual hearings because of technical difficulties, lack of access to necessary equipment, and time zone conflicts. Furthermore, a series of ethical issues can arise in virtual hearings, such as witnesses being covertly coached counsel. When all individuals are hidden behind a computer screen, it is difficult to ensure good behavior. Lastly, cybersecurity remains an unresolved issue. Doria acknowledged that procedural orders and protocols can protect against unauthorized access to confidential documents. However, the effort required to develop such protocols translates into higher legal fees, which may supersede the perceived cost savings of virtual hearings.
Annie Lespérance explained that virtual hearings can compromise the enforceability of a final award. Arbitrators may accidentally violate due process issues due to their unfamiliarity with virtual proceedings. Lespérance shared an anecdote from her personal experience where the arbitrator left the screen during one of the parties’ closing submissions. In another case, the arbitrator’s camera turned off unexpectedly. In both cases, the arbitrators’ final awards were susceptible to being challenged on the basis that due process was not respected, as the arbitrator may not have heard all of one party’s case. Second, Lespérance noted that many arbitration agreements and international rules do not recognize the legitimacy of virtual hearings. Hence, prevailing parties may not be able to legally enforce awards. All in all, the risks involved in electronic arbitrations outweigh the surface-level benefits described by Team Red.
Turning to the audience, Doe asked viewers to vote on which side of the proposition they agreed with. In the end, Team Red won with a razor-thin margin: 51% in favour of a default rule of virtual hearings.
Proposition #2: Be It Resolved That “the success of international arbitration relies on our ability to travel and meet in person”
Team Blue: In Favour
Lespérance began by citing Emmanuel Gaillard’s article Sociology of International Arbitration: “Periodic mass gatherings are an important ritual for the international arbitration community.” Orchestrating an in-person meeting requires a far greater level of commitment and dedication than meeting online. By scheduling time off, packing a suitcase, and travelling to a physical destination, attendees will be more inclined to make the most of their experience. Lespérance also argued that in-person meetings offer more opportunities to network and to exchange ideas, which can only strengthen the international arbitration community. At this point, members of the audience used the chat forum to recount stories of brush-ups with famous arbitrators in elevators, and amusing cab-rides to and from event venues. Building off the audience’s energy, Lespérance declared that virtual meetings can never replace the glorious serendipity of real human interactions.
Doria noted that the continued prosperity of international arbitration depends on the community’s ability to attract and retain talented young lawyers. Zoom breakout rooms can only facilitate so much conversation, and the lack of social norms in the virtual space makes it difficult for new members to connect with others in the field. Conferences and events must be in-person, or else the international arbitration community risks an erosion in collegiality.
Team Red: Against
Meighen strongly pushed back Team Blue’s arguments, explaining that CanArbWeek 2020 is a testament to the international arbitration community’s readiness to go virtual. While the medium of interaction may be different, it is no less valuable. Furthermore, the success of the international arbitration community is not predicated on the ability to enjoy cocktails, but rather on the ability to develop international norms for dispute resolution, which can be done equally well through virtual platforms. Online task force meetings, working groups, and steering committees are the key interactions needed to drive the consolidation and cultivation of international arbitration norms and practices.
Taking up the baton for Team Red, Lange urged the audience to consider that virtual gatherings encourage diversity and inclusion. Members of the international arbitration community who would have been unable to travel to a conference (for example, because they are nursing a child, or have health concerns), can interact with others from the comfort of their homes. Furthermore, Lange responded to Lespérance’s interpretation of Gaillard’s quote by explaining that rituals can change. Since arbitration is known for its flexibility, the nature of its conferences and events should also evolve with the times. The future, Team Red argued, is virtual.
Following a heated debate (and a very lively chat forum), Doe once again turned to the audience to vote on the winner. In an exciting turn of events, Team Blue won with only a slightly greater margin than the one by which it had lost the first debate: 52% in favour of in-person gatherings as essential to the success of international arbitration.
The YCAP 2020 Fall Symposium was an entertaining session that tackled serious issues in international arbitration. While “sweatpants arbitration” may soon overtake in-person dispute resolution out of practical necessity, members of the international arbitration community will be happy to leave their houses for conferences and events (such as future CanArbWeeks).