Looking to the East

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The new president of the International Court of Arbitration of the International Chamber of Commerce (ICC), Claudia Salomon, is the first woman to lead the institution since its establishment in 1923. Here, she discusses her new role, and what changes she expects to see in the dispute resolution landscape in Asia.

Asia Business Law Journal: Tell us about your strategies to keep the ICC Court’s presence in Asia, especially with more Asian jurisdictions setting up their arbitration institutions?

Claudia Salomon: We are very focused on expanding the ICC’s presence in Asia, and fully expect an increase of cases involving Asian parties. Last year, parties in the ICC arbitrations came from 145 countries and independent territories worldwide, and 25% came from the Asia-Pacific. Currently, we have Asia case management teams located in Hong Kong and Singapore, with legal staff from mainland China, Hong Kong, India and Singapore.

We have a representative office in Shanghai, where our North Asian director and her team are located, and our South Asian director and team are located in Singapore. We have the strongest Asian presence on the ICC Court than ever before, including vice presidents from mainland China, India, and Singapore. The ICC dispute resolution services governing body now includes Sundaresh Menon, the chief justice of Singapore, and Liz Chung, the legal director of Netflix Korea.

We are paying close attention to the draft of the new arbitration law in China, which is currently open for public comment and includes provisions regarding how foreign arbitral institutions may set up case management offices in China. If we have the opportunity to do so, that will certainly be our plan.

But in the immediate term, we will focus on an extensive training programme tailored for key stakeholders, in-house counsel, young practitioners and arbitrators. The ICC Young Arbitrator Forum North Asia and South Asia chapters are key in that respect. We are also focused on assuring visibility and appointments for arbitrators from Asia.

In 2018, the ICC introduced its expedited procedures for streamlined arbitration with reduced fees. The case is decided by one arbitrator with a simplified procedure and a final award rendered within six months from the case management conference. These procedures automatically apply to cases under USD2 million or USD3 million, depending on when the contract was signed, and they have been a resounding success and extremely popular. We had numerous cases in which the parties have opted into the expedited procedures, even in cases where the amount in dispute is above the threshold. It’s notable that in 2020, 38% of the new filings involved an amount in dispute not exceeding USD3 million.

The ICC arbitration rules also offer a procedure for parties to seek urgent temporary relief from an emergency arbitrator when they’re unable to wait for the constitution of a tribunal. And the emergency arbitrator must issue his or her order within 15 days. Since the start of my term as president of the ICC Court, we have had a very significant number of such applications, frequently filed on a Friday night, including one applicant filing six separate applications at once. But in all of these cases, I’ve been able to appoint emergency arbitrators extremely quickly, and most often within 24 hours.

So, looking ahead, we will first focus on the needs of small and medium-sized enterprises (SMEs) that drive the global economy and have been most impacted by the pandemic. We know they need an effective means of resolving low-value disputes. We are working closely with the broader ICC, which is establishing centres for entrepreneurship throughout the world providing services and assisting SMEs.

Second, we’re focused on technology-related disputes, biotechnology, and AI [artificial intelligence]. We will see tremendous and rapid growth in this area of high-end manufacturing, and can expect an increase in such disputes. About 40 % of ICC cases fall in the category of energy or construction and infrastructure, and especially in Asia we will expect to see that trend to continue.

ABLJ: What are the emerging trends you have observed in Asia?

Salomon: The progress that Asian jurisdictions have made in international arbitration is unprecedented. The governments in the region have been very forward-thinking and nimble in addressing arbitration issues, including legislation dealing with the emergency arbitrator, third-party funding, and enforcement of interim relief.

We see a real increase in the sophistication of Asian parties in addressing cross-border disputes, and the emergence of world-class corporate counsel, particularly as Asian parties have more bargaining power in their contract negotiations, including over the terms of their dispute resolution provisions. We see a very high standard of the top-tier Asian law firms, particularly in Singapore, Hong Kong, India, South Korea and Japan, and we also see the emergence of a growing number of top-tier Asian arbitrators.

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