Arbitration practitioners from the United States, Mexico, Canada, Europe and China tackled the state of international arbitration in the face of the backlash against globalism at a conference convened by the Atlanta International Arbitration Society.
The event attracted about 125 international arbitration practitioners Monday at the Omni Atlanta Hotel.
“Perception counts,” was a major theme, as Charles Adams Jr., the global head of Orrick, Herrington & Sutcliffe’s international arbitration practice, put it in his opening remarks.
Under the Trump administration, Adams said, “there is a perception in the world at large that the United States is becoming less hospitable as a venue for international arbitration.” Adams, based in Geneva, was the U.S. ambassador to Finland under the Obama administration.
Because of “perception issues,” he added, some of Orrick’s clients are specifying arbitral venues outside the United States in contracts for cross-border deals.
Some perceptions are real. Because of travel bans and increased difficulties in procuring visas to the United States, Adams said, some businesspeople outside the United States are deciding it’s too much hassle to locate arbitrations here. He said he’s had problems since Trump took office getting witnesses and lawyers to cross-border arbitrations seated in the U.S. from Syria and Iran.
Signs of a Backlash
Lord Peter Goldsmith addressed the phenomenon of “receding globalism” in his keynote speech. As an outcome, the established investor-state dispute settlement process will be reformed but not abolished, said Goldsmith, the former attorney general for England and Wales, who chairs the European and Asian litigation practice at Debevoise & Plimpton in London.
“We will see change—although we do not know to what extent,” he concluded.
The backlash against globalism—including greater scrutiny and opposition to multilateral free trade agreements—is reshaping the international order established after World War II, Goldsmith said, with the creation of the first free-trade agreement, the General Agreement on Tariffs and Trade in 1948 and then the World Trade Organization in 1995. Since then, nearly 3,000 bilateral investment treaties have sprung up.
Under these treaties, disputes arising between investors and states are most commonly resolved through arbitration, which Goldsmith called a big improvement over “sending out gunboats.”
But world trade has been flat or stagnant since 2008, Goldsmith said, “so the impetus toward further economic integration has stalled and even gone into reverse.”
Public mistrust for globalism has arisen, accompanied by a rise in nationalism in Europe and the United States, he noted, adding that the movement “started well before Mr. Trump.”
“There is growing popular concern about the effects of globalism,” he said, evidenced by Brexit and the popularity of nationalist movements and candidates in Spain, Sweden, Austria, Greece and Turkey, among others.
“It’s undeniable that nationalist movements have been gaining popularity throughout Europe, which is of concern to many of us,” Goldsmith said.
Trump’s “make America great again” rhetoric, he said, “has practical impacts on free trade agreements.”
“Not just new but existing free trade agreements are under attack,” he said, noting the contentious negotiations over the North American Free Trade Agreement. It extends beyond the United States, he added, saying that the proposed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union is “very unpopular in Europe.”
“I think it’s highly doubtful that investor treaties are going to disappear,” he said. But in Goldsmith’s view, there will be changes to the established investor-state dispute settlement system “to address growing public distrust.”
Goldsmith forecast more oversight to the current investor treaty arbitration process, including provisions to guarantee transparency, allow third parties to submit amicus briefs, allow states to regulate treaty provisions that protect the public welfare and other procedural safeguards.
State-Appointed Investment Courts
Goldsmith addressed the most controversial change proposed by critics to the current investor-state dispute resolution process—establishing an international tribunal of arbitrators and having states appoint the arbitrators, which has been proposed for the TTIP and other trade treaties. In the current system, the disputing parties choose their own arbitrators as well as venue.
Goldsmith said it’s unclear if international tribunals will gain traction, but he, like other conference participants, warned they would bring their own problems.
In that eventuality, he said, Debevoise & Plimpton lawyers would not sit as arbitrators on investment cases because of the “double hat” problem—the concern that the firm’s lawyers could be conflicted out of serving as counsel in disputes before the arbitral body. They prefer to act as counsel in investment cases, he said.
Spillover to Commercial Arbitration?
A subsequent panel with practitioners from Nassau, Geneva, Miami and Atlanta addressed the potential for reforms to spill over into commercial arbitration.
The push for more transparency and accountability to shareholders and other stakeholders is strong, said Peter Maynard, a member of the London Court of International Arbitration with three decades experience as an arbitrator and arbitration counsel.
Arbitration clients are always in favor of transparency, he added wryly, “except when it comes to their case.”
Maynard, who has his own firm in Nassau, Bahamas, said some proposed measures are “receiving traction,” adding that they are like “a wake-up alarm, and we’ve been hitting the snooze button.”
Randall Hafer of Kilpatrick Townsend & Stockton, who specializes in cross-border construction arbitration, agreed that there’s a strong push for greater transparency in commercial proceedings.
While it does not provide the names of parties or counsel in its matters, Hafer said, one top arbitral body, the International Chamber of Commerce, last year started publishing information on its website listing the arbitrators on its matters by name, nationality, role in the tribunal and whether the matter is pending or closed.
He added that his clients are generally accepting of more transparency as to case management, while opinions are mixed on having arbitrators provide more information on how they arrive at their decision. However, making proceedings public is where the line gets drawn in commercial arbitration, he said.
“If we ever go that far, we would lose a lot of customers,” he said, since confidentiality is one of the main draws of commercial arbitration, along with parties being able to choose their own arbitrators and venue.