With the disruption of covid-19, webinars have become the norm of sharing knowledge and keeping up to date with legal developments and trends. Despite being a lifesaver during the glooming lockdown days, a webinar is no match for the thrill of an in-person event. The 23rd Annual IBA Arbitration Day, therefore, has been the most anticipated major international arbitration gathering after a long time for Paksoy team.

The event was held in Istanbul on 24 and 25 March 2022 with the attendance of 332 delegates from 55 different states. The panels and keynote speeches were full of innovative ideas concerning the hot topics of international arbitration.

The first panel chaired by Lucy Reed focused on one of the most important documents of an arbitration proceeding: procedural order no.1 and accompanying procedural timetable. Lucy Reed offered some innovative ideas such as making room in procedural timetable for multiple case management conferences, a mid-stream meeting (Kaplan early opening), mediation window, pre-hearing tribunal session, a joint list of issues prepared by the parties and brief bullet-point post-hearing submissions on key open points. Ms. Reed underlined that these steps would resolve or at least narrow down procedural skirmishes throughout the proceedings, enable counsel to understand where the tribunal’s focus is and most importantly urge the tribunal to focus on the issues at dispute earlier and more often. Panel speakers Georges Affaki, Yoshimi Ohara and Dorothy Udeme Ufot San further stressed the importance of brief pre-hearing submissions and joint list of issues by the parties for an effective hearing and expeditious award making process.

The second panel was dedicated to quantum of damages. Panellists Mark Freidman, David Dearman, Smitha Memon and Gabrielle Nater-Bass Given stressed that practitioners’ knowledge and understanding of financial aspects of calculation of damages have not kept pace with the increasing complexity of calculation of damages. Addressing that critical deficit, Gabrielle Nater-Bass introduced the recently released interactive web application ICCA-ASIL Damages in International Arbitration APP (DIA) – launched with a view to fostering a more robust and uniform approach to damages. DIA offers a broad spectrum of knowledge brought together by legal and financial experts, who analyse procedural, legal and valuation issues from international, civil, and common law perspectives.

The afternoon started with Juliet Blanch Arbitral’s keynote speech where she proposed eye-opening ideas mainly for arbitrators establishing an arbitrator academy and introducing platforms for arbitrator appraisal and peer to peer learning. She emphasised that arbitrators, who are at the driver seat of proceedings, must possess necessary legal, analytical, and soft skills to conduct the proceedings in an effective and expeditious manner.

The first panel of the afternoon was about fact witness testimonies. Toby Landau delivered a thoughtprovoking speech. He questioned whether different approaches in preparation and presentation of witness evidence, which dominates most arbitration hearings, would make such evidence more effective and worthwhile. According to Toby Landau the most troublesome aspects of witness evidence are: (i) selecting witnesses who are not forthcoming in response to cross-examination rather than pure fact witnesses; (ii) presenting extensive and lawyered witness statements; and (iii) extensive and redundant cross-examination processes. To address these issues Toby Landau underlined the importance of allowing tribunals to have a say in who should be called as a witness or whether a witness is even needed. He further encouraged categorisation of witnesses as (i) pure fact witnesses, (ii) witnesses who solely comment on other evidence, (iii) witnesses who just explain background of the dispute, and (iv) witnesses who just provide technical testimony. He claimed that by this means cross examination of certain types of witnesses would be redundant and, hence superfluous. Finally, Toby Landau invited counsels to ask witnesses to prepare the first draft of their statements themselves as it would be quite refreshing for them and produce a more reliable witness statement for the tribunal. Alexandra Johnson also noted that the tribunal should have the final say as to which witness will testify and they should be able to limit the time available for witness examination, which will force everyone to focus on important witnesses. Aslı Yılmaz’s speech was focused on ICC Commissions’ report on the Accuracy of Fact Witness Memory in International Arbitration, which concludes, by relying on scientific analysis, that human memory can easily become distorted and less reliable than expected. She noted that a witness-by-witness assessment is required to determine which steps are required to weigh the witness testimony against distortions. 

Final panel was dedicated to one of the most important topics in international arbitration: promoting diversity, equity, and inclusion (DEI). Esteemed panellists Arif H. Ali, Kathleen Paisley, Jacomijn Van Hersolte-van Hof and Can Yeğinsu delivered inspiring speeches and suggested that remaining imbalances and distortions in terms of DEI in international arbitration may be addressed by certain amendments in procedural rules and institutional reforms to ensure DEI. Highlights of these proposals were: introducing model DEI arbitration clauses, which provides for the appointment of a sole arbitrator or chair from a minority, marginalised or unrepresented group; and ensuring continuum of DEI intentionally by providing fee-based incentives to parties and including DEI statements as part of mission and vision statements of institutions.

In conclusion, the twice postponed and long awaited 23rd Annual IBA Arbitration Day has most certainly gone beyond the expectations and provided food for thought on many different controversial topics. It is without a doubt that next year’s IBA Arbitration Day, which will be held in Lisbon, will come up with even more attention-grabbing topics and creative proposals.