Your interest in the ICC Institute began with its range of training. What was it about those activities that made you want to join the ICC Institute?
Mr Thambiayah: Correct. Many of the classes that I attended, and then the subsequent courses where I had a role as a speaker or chair, I had this interaction with different practitioners from different fields, cultures, and legal systems. I found that exhilarating because when you practice in a common law jurisdiction like I do, and you do your arbitrations within that jurisdiction, you tend to get stuck in that mindset, that outlook. And it is not until you step outside that you realise that other people may not say the same things in the same way that you do, but they make a lot of sense. That is why I joined the ICC Institute.
Mr Thambiayah: Well, I decided to run for the Vice-Chair position with Melida Hodgson because Eduardo’s vision resonated with me. One of his main focuses is on diversity in its various forms. We are not talking only about gender diversity; we are also talking about geographic areas of the ICC community. Eduardo aims to expand the focus of ICC Institute trainings to go beyond traditional disputes, such as construction, engineering, or joint ventures. Although construction, engineering, and joint ventures account for a significant proportion of ICC cases, international arbitration is not entirely focused on just commercial arbitrations. In fact, in more recent years, you will find that there are other major topics in ICC Arbitrations. Antitrust is becoming a big field, for example, and we are also seeing arbitration and compliance interacting.
With a view to addressing the most important, current preoccupations of international businesses globally, the Institute has divided its activities into three sections: international arbitration; international contracts; and compliance.
The Institute’s activities related to international arbitration have, over the years, been the most successful of the Institute. In addition, international contracts have always been at the core of our activities. The Institute, however, has decided to be more active in this field, especially through working more closely with the other bodies of ICC which focus on international contracts and other strategic allies.
And compliance has perhaps become the major concern of international businesses globally. The Institute, also through alliances, will endeavour to conceptualise compliance by (i) determining its scope; (ii) identifying the compliance obligations of international businesses; (iii) defining the nature of those obligations; and (iv) studying the ways in which those obligations may be enforced.
And then I was reminded by Eduardo that when the Institute was first established, it was a party of intellectuals – a think tank. The tank has gravitated towards dealing more with practitioner-related issues. Our goal is to try and recover a bit of that academic spirit. So, we will be developing new activities where theory and practical applications of topics of interest can be explored.
Talk to us about the Australasian Chapter of the ICC Institute.
Mr Thambiayah: The idea of the Regional Chapters is to promote the work of the Institute in a particular geographical area. The first, the Latin-American and Iberian Chapter (LAI), was launched by Eduardo in 2018. To support Eduardo’s mission, I developed the Australasian Chapter in 2020.
Today, the Australasian Chapter has a diverse group of professionals representing nine jurisdictions across the region. They include academics and arbitration practitioners with serious side interests in subjects including academic aspects of international arbitration, corporate governance and director duties. The members of the Institute will be pleased to learn that five members from Australasia were elected to the Institute Council for 2020.
The Chapter meets to discuss various vexed issues, such as due process paranoia, subjects with interesting theoretical underpinnings. We then merge theory into practice, and these sessions are called Chapter Connects.
In terms of the Regional Chapters, is there a view to developing more?
Mr Thambiayah: Yes, certainly. The idea behind the Chapters was to have them apply to different geographical areas. We plan to have half a dozen Chapters in the future, with our next one in Africa.
It would be good to have a high-level dialogue among the Chapters to discuss the common topics that have arisen in their programmes that they have developed – something more than just a typical conference. So that is the future and potential that we see with these Regional Chapters of the ICC Institute.
It seems that the ICC Institute is pivoting from more traditional events towards more hands-on activities. Talk to us about that change.
Mr Thambiayah: Yes. We have been living in a very strange world. What has come home is the difficulty of interacting – that is very clear. We realised that it was challenging to engender a spirit of debate via Zoom or Teams or whatever it is. That is why we want to lay the groundwork for when we come out of these strange times.
To that end, the Australasian Chapter has thought of two further topics of practical interest to debate, each of which has a theoretical underpinning. The Bureau of the Australasian Chapter will be exploring the possibility of convening one of these Connects with the LAI Chapter.
The first question is: ‘Is there a meaningful distinction between admissibility and jurisdiction in international arbitration?’ There has been much intellectual discussion, but how does it play out practically? So, we would like to touch on both. For example, English and Hong Kong decisions have come down on the side of the view that Respondent’s failure to comply with certain preconditions contained in the multi-tiered arbitration dispute resolution clause is a question of admissibility, and it does not go to the tribunal’s jurisdiction.
Then, the second topic is: ‘Is there a rational basis for the classification of matters as either procedural or substantive?’ Why should, for example, limitation of actions, entitlement to interest or privilege in international arbitration depend on whether they are classified as procedural or substantive? How can any uncertainties in these areas be reduced? And these matters need to be explained not only to arbitration practitioners and lawyers but also to businesspeople and their in-house counsel. Perhaps arbitrators and arbitration practitioners, in general, overlook the fact that the source of their income can vary from contracts signed by officers of big companies. And these people have business acumen, common sense and practical experience in the business world. If you drop these people into the middle of an international arbitration, a real-life arbitration, they will come away thinking that this is a bit strange, a bit unreal. So, these are the types of discussions we want to have in our Chapter Connects.
Another goal is to develop training for stakeholders to understand the arbitration process, what is involved and why their involvement is essential. That is why we are developing small and intensive trainings specifically for in-house counsel and their project managers, the dedicated person that a company appoints to oversee how the arbitration is being administered. We want to give them an experience that replicates the workings of specific parts of an arbitration. Often, officials of companies, and perhaps even in-house counsel, do not realise what is involved in an arbitration, for example, basic things like the production of documents. They understand the nature of the concept but not what is involved. We could sit them down in a seminar and explain everything, but would they appreciate it? I think they would appreciate it more if they were put through the actual process. We want to take them through the reality of what could happen in a case. This would be especially useful for small- and medium-sized enterprises (SMEs) because they are less likely to invest time in following or promoting a legal case with the resources available to them.
Another important aspect for us to develop is to find ways to get litigants involved in the process from the beginning. Why does it take 24 months for a hearing to begin? One example that we see often is that participants are not involved in setting a timetable for the arbitration – and they should be. They have every right to ask their lawyers, ‘why are you taking three months to prepare my statement of case?’ The tone needs to be set at the beginning. When it comes to the efficient and cost-effective conduct of arbitrations, benefits will be reaped when we get participants to join in on the process from the start.
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