The International Council for Commercial Arbitration (ICCA)’s Congress was held in Miami from April 6 to 9, 2014. The program of the Miami Congress focused on legitimacy issues with special emphasis on the myths, realities and challenges.
On 7 April 2014, a panel involving representatives of nine arbitral institutions including CRCICA addressed the following question: Arbitral Institutions Can Do More to Further Legitimacy. True or False? The panel was chaired by Salim Moollan (London) who was assisted by a rapporteur, Belinda McRae (Paris). The Panelists were:
John Beechey (ICC)
Brooks Daly (PCA)
Meg Kinnear (ICSID)
Richard Naimark (AAA)
Sundra Rajoo (KLRCA)
Mohamed Abdel Raouf (CRCICA)
Frederico José Straube (CAM-CCBC)
Adrian Winstanley (LCIA)
Nassib Ziadé (BCDR-AAA)
Based on the answers provided by the above panelists to a questionnaire prepared before the Congress, the panel discussed whether arbitral institutions have been steady stewards of legitimacy in arbitration, or, as more say, are they stagnant and protective of the status quo? In particular, can arbitration be legitimate if the arbitrator selection process is opaque, the quality of awards is variable, and the arbitral process lacks foreseeability? Particularly as the growth in regional institutions continues, are there consistent practices to be encouraged, and others to be eschewed, to promote and preserve legitimacy?
The session was intended to challenge whether institutions are doing enough to ensure the availability of diverse, well-trained arbitrators and to ensure first-rate, timely performance of their duties.
CRCICA Director headed one of the three sub-panels and delivered a speech discussing whether arbitral institutions are enabling a “mafia” and are indifferent to delays and costs. Based on the answers collected from all nine arbitral instutions, he concluded his presentation by stating that the alleged existence of a “mafia” that is enabled by arbitral institutions is clearly a myth and should not be perceived as an institutional issue. He added that, from the perspective of arbitral institutions, the community of arbitrators is rather viewed as an exclusive club, access to which is not really hindered for newcomers. This is demonstrated by relevant efforts exerted by organizations like the ICCA, the IFCAI and the IBA, whose Arbitration Section is becoming its largest one. Droves of highly able younger practitioners are flooding into the field. More women are becoming prominent. Every region has people of fine expertise and growing acceptability in the field. Accordingly, arbitration institutions are not solely responsible for the shortcomings in the system. These problems should not deter them, however, from pursuing every effort to expand the pool of qualified arbitrators and to take the lead in this mission in order to maintain not only the trust of their users, but most importantly the legitimacy of institutional arbitration.