Coming up in November: The SAA Practitioner's Course

Our Arbitration Practitioner (ArbP) course starts soon, on November 14, 2024.
It is a program specifically designed for participants with some experience in the legal field, ideally in arbitration.

Who is the SAA Practitioner’s Course suitable for?

Our ArbP program is perfect for professionals with some experience in arbitration who are looking to enhance their skills through active participation. The course features practical training, including pleading based on mock cases, role plays of arbitration scenarios, drafting sessions for written submissions, and interactive discussions on the latest arbitration topics.

The ArbP program is designed to accommodate working professionals, balancing intensive classroom instruction with scheduling flexibility. Participants can attend to their professional responsibilities daily.

The program starts with Module 2 and covers the following topic:

How to commence arbitration proceedings

In Module 2, participants will explore issues related to the early stages of arbitration from the perspectives of both counsel and arbitrators. They will hear from in-house counsel about client needs and expectations in international arbitration, learn about the role of experts at the outset of a dispute, and receive guidance from guest lecturers on case presentation and the use of interim measures to protect clients’ interests. Prominent arbitration practitioners will conduct practical mock training sessions to enhance advocacy skills and teach participants how to draft and submit pleadings. Module 2 also includes introductions to specialized arbitral institutions such as WIPO’s Arbitration and Mediation Center and the Court of Arbitration for Sport (CAS), as well as focused disciplines like sports arbitration and investment treaty arbitration.

Application Requirements:

The ArbP program is for qualified participants with previous arbitration experience. Participants must attend and actively participate in Modules 2, 3, and 4.

It is possible to sign up for this module individually or you can sign up for the SAA Practitioner's Course.

Learn more about the course here: ArbP program

Apply now!

Next CAS course starts June 27, 2024!

Applications can now be received. Do not miss out on this opportunity to get training on the practice in international arbitration.

Early bird tuition fee for our CAS and ArbP programs are offered valid until April 30.

We are excited to share with you the new dates of the upcoming CAS in Arbitration course:

Save the date!
Module 1: June 27 – July 1, 2024
Module 2: November 14 – 18, 2024
Module 3: February 6 – 10, 2025
Module 4: April 10 – 14, 2025

Modules 1, 2 and 4 will be offered online while Module 3 will be held in person, in Switzerland.

This setup offers a lot of benefits for you:

Because Module 1, 2 and 4 will be offered on a virtual basis, the upcoming course will help you save significant amounts of time and money while we assure you the best experience from our interactive training.

During Module 3, the time allocated for your stay in Switzerland presents several significant advantages for you:

The in-person Module:

-       is the most interactive Module of all four Modules and includes sessions such as cross examination exercises and virtual arbitration hearing sessions on jurisdiction; we are convinced that these sessions are best attended in person;

-       provides for networking opportunities with module leaders, guest lecturers, other participants, and the local legal community in Switzerland which is considered to be the cradle of arbitration; 

-       includes a visit to one of the many international organizations and arbitral institutions in Switzerland, such as WIPO, CAS and others;

-       includes sessions, networking events at the offices of prominent law firms. 

Why should you choose the SAA?

① World-Class Faculty: Elevate your expertise under the guidance of internationally renowned arbitration experts. Our distinguished faculty brings a wealth of experience from diverse legal backgrounds, ensuring you receive top-tier education.

② Swiss Excellence: Switzerland is synonymous with precision and quality, and our academy is no exception. Benefit from a curriculum crafted with meticulous attention to detail, aligning with the highest standards of arbitration practice.

③ Networking Opportunities: Engage with actual arbitration professionals. Our academy provides a unique platform to foster relationships, opening doors to collaborations and opportunities across borders.

④ Practical Focus: Gain hands-on experience through workshops, case studies, and simulations. We believe in equipping our participants with practical skills that translate directly into success in the dynamic field of arbitration.

⑤ International Recognition: A certification from the Swiss Arbitration Academy is a stamp of approval recognized worldwide. Open doors to new career prospects and collaborations on an international scale.

The modules

While the first module provides an in-depth introduction to the fundamental features and the law of international arbitration, the following three modules cover practical issues on the basis of a mock arbitration case. 

Every module day, one or two renowned international guest speakers are invited to share their experiences and insights with a limited group of participants (approx. 20 persons). The unique blend of in-depth theory with a large range of practical tips and interactive drafting and pleading exercises, ensures an all-round preparation for a career as arbitrator and/or counsel. 

After the four-module training, participants will have acquired knowledge and valuable insights into how arbitration is conducted by counsel and arbitrators.

How to apply

In order to apply to one of the SAA postgraduate courses, please forward your CV, motivation letter and supporting documents to info@saa-switzerland.ch.

Next CAS course starts in June - apply now!

Applications can now be received. Do not miss out on this opportunity to get training on the practice in international arbitration.

Early bird tuition fee for our CAS and ArbP programs are offered valid until April 30.

The last two academic cycles of the Swiss Arbitration Academy program were offered on a virtual basis. While this has been a great success, for the upcoming course we are now re-introducing in-person elements of the program.

Modules 1, 2 and 4 continue to be offered online. In contrast to our program in the last two years, Module 3 will be held again, after the pandemic, in person.

𝐓𝐡𝐢𝐬 𝐬𝐞𝐭𝐮𝐩 𝐨𝐟𝐟𝐞𝐫𝐬 𝐚 𝐥𝐨𝐭 𝐨𝐟 𝐛𝐞𝐧𝐞𝐟𝐢𝐭𝐬 𝐟𝐨𝐫 𝐲𝐨𝐮:

→ Since Module 1, 2 and 4 will be offered on a virtual basis, the upcoming course will continue to help you save significant amounts of time and money. As in the past two years, we assure you the best experience from our interactive training.
→ The SAA decided to design one Module (Module 3) as an in-person module. The time you will spend in Switzerland offers you a number of important benefits:
The in-person Module:
-       the Academic Council of the SAA has redesigned the CAS program to include interactive learning sessions from Module 2 and Module 3, such as cross examination exercises and virtual arbitration hearing sessions on jurisdiction, in one in-person module which will take place in Switzerland; we are convinced that these sessions are best attended in person;
-       provides for networking opportunities with module leaders, guest lecturers, other participants, and the local legal community in Switzerland which is considered to be the cradle of arbitration; 
-       includes a visit to one of the many international organizations and arbitral institutions in Switzerland, such as WIPO, CAS and others;
-       includes sessions, networking events at the offices of prominent law firms.

Save the date!
Module 1: 22 - 26 June 2023
Module 2: 9 - 13 November 2023
Module 3: 8 - 12 February 2024
Module 4: 25. – 29. April 2024

Why should you choose the SAA?

At the Swiss Arbitration Academy, we understand the need for practical training and offer a program, that has a distinctive practice-oriented approach. We aim to teach participants what cannot be learned from books alone, namely:

•  by teaching all relevant aspects of arbitral proceedings form preparation and client handling to the final award

•  by analyzing all aspects from the counsel’s as well as the arbitrator’s perspective

In addition, we invite more than 20 experienced guest practitioners to participate in different modules and to assist and coach students in various exercises.

The modules

While the first module provides an in-depth introduction to the fundamental features and the law of international arbitration, the following three modules cover practical issues on the basis of a mock arbitration case. 

Every module day, one or two renowned international guest speakers are invited to share their experiences and insights with a limited group of participants (approx. 20 persons). The unique blend of in-depth theory with a large range of practical tips and interactive drafting and pleading exercises, ensures an all-round preparation for a career as arbitrator and/or counsel. 

After the four-module training, participants will have acquired knowledge and valuable insights into how arbitration is conducted by counsel and arbitrators.

How to apply

In order to apply to one of the SAA postgraduate courses, please forward your CV, motivation letter and supporting documents to info@saa-switzerland.ch.

Introduction to the SAA Modules

In this Blog Post we will be presenting each module to you in more detail and in addition to what you can learn from the SAA's website:

Module 1:

FUNDAMENTALS OF INTERNATIONAL ARBITRATION

The first module is dedicated to an introduction to the fundamentals of international arbitration both in a comparative perspective and with emphasis on Swiss law. The course is taught by Professor Christoph Müller and Professor Daniel Girsberger, both experienced university faculty members and arbitration practitioners. The purpose of this “crash course” is to ensure that by the end of the first week, all participants are familiar with the essential aspects of international arbitration law and practice, particularly, with respect to the Swiss legal framework.

The program is based on materials specifically designed for this type of education, and includes practical exercises in all relevant areas of international arbitration, namely:

➢ The legal concept of arbitration, fundamental features, regulatory framework and neighboring methods of dispute resolution

➢ The arbitration agreement

➢ The arbitral tribunal

➢ The arbitral proceedings

➢ The applicable law

➢ The arbitral award

➢ Recognition and enforcement of arbitral awards

Module 2:

HOW TO COMMENCE ARBITRATION PROCEEDINGS

Participants now put the knowledge acquired during module 1 into practice. On the basis of a mock case, the participants address issues from the perspective of both counsel and arbitrators in international arbitration.

Emphasis is placed on how lawyers advise their clients when a dispute arises, including why and how to commence arbitration proceedings upon a proper assessment of the case. Key topics are addressed, in particular, how to compel a party into arbitration or how to object to arbitration if the agreement does not provide for a proper dispute resolution mechanism, and how to choose, approach, nominate or challenge arbitrators. The participants consider the importance of the place of arbitration, the impact of the arbitration rules applicable or how to handle ad hoc arbitrations. Most importantly, participants learn how to deal with complex proceedings and multi-party issues (including consolidation of proceedings, joinder/intervention of third parties, and the inclusion of non-signatory parties). The participants will review practical issues like staffing and cost matters, tactical considerations when commencing arbitration proceedings, cultural and behavioral issues regarding first client and/or arbitrator meetings as well as interaction with opposing counsel.

Guest lecturers discuss with the participants how to present a case before the arbitral tribunal. In particular, prominent arbitration practitioners help to improve advocacy skills through practical mock training sessions (mock client interviews, mock arbitrator interviews, mock organizational hearings, mock pleadings on jurisdiction, etc.). Participants will also learn how to draft and submit pleadings (briefs for the Claimant and for the Respondent), as well as how to seek appropriate relief.

Module 3:

THE TAKING OF EVIDENCE: HEARINGS AND INTERIM MEASURES

In the third module of the program, the participants will be introduced to various aspects of the taking of evidence (for example, the IBA Rules on the Taking of Evidence and requests for document production), interim measures and, in particular, evidentiary hearings. A special highlight is the intensive and interactive cross examination training. Each participant will be actively involved and will have to do cross examination. Other elements of the course include a mock case on mixed proceedings (Arb-Med-Arb) and a discussion with seasoned mediators. The entire module will be accompanied by an experienced in-house counsel, who will always bring the user's point of view into the discussions. As this is a practical course, the module will be very interactive.

Module 4:

FROM THE HEARING TO THE CHALLENGE AND ENFORCEMENT OF AWARDS

The fourth Module concerns the last stage of arbitral proceedings: the deliberation of the arbitral tribunal, the award, and the challenge of an award. In the first part of the Module, participants learn about the closure of the proceedings and the making of the award. Questions covering the deliberations of the members of the arbitral tribunal, the drafting and the signing of the award, the notification of the award, as well as truncated tribunals and dissenting arbitrators will be discussed. Further, money matters of course as well: the allocation of the costs of the arbitration also forms an important part of the discussions. From the counsel's perspective, the drafting of requests for correction and interpretation of the award will be reviewed. The adjudication is addressed from the tribunal's perspective. Settlement and other grounds for termination of arbitral proceedings are also covered.

The second part of the Module will address issues about the enforcement of the award. Participants learn where and how to enforce an award, or, conversely, how to resist enforcement of an award. Debated issues like the enforceability of awards which were annulled at the place of arbitration are also addressed.

The third part of the Module covers the challenge of the award. The focus is on jurisdiction, the grounds for challenging an award, and other procedural issues related to the challenge of an award. Participants also learn that the finality of arbitral awards may not have the same bearing in all jurisdictions. Additionally, whether arbitral tribunals are in a position to reconsider their awards based on new facts or evidence discovered after the rendering of the award is also discussed.

Early bird tuition fee for our CAS and ArbP programs are offered valid until May 25.

How to apply

In order to apply to one of the SAA postgraduate courses, please forward your CV, motivation letter and supporting documents to info@saa-switzerland.ch.

Next CAS course starts in June - apply now for interactive virtual training!

Applications can now be received. Do not miss out on this opportunity to get training on the practice in international arbitration.

Early bird tuition fee for our CAS and ArbP programs are offered valid until April 30.

The program for the CAS and the ArbP will be offered on a virtual basis only.

Save the date!
Module 1: 23 - 27 June 2022
Module 2: 3 - 7 November 2022
Module 3: 9 - 13 February 2023
Module 4: 27. April – 1 May 2023

Why should you choose the SAA?

At the Swiss Arbitration Academy, we understand the need for practical training and offer a program, that has a distinctive practice-oriented approach. We aim to teach participants what cannot be learned from books alone, namely:

•  by teaching all relevant aspects of arbitral proceedings form preparation and client handling to the final award

•  by analyzing all aspects from the counsel’s as well as the arbitrator’s perspective

In addition, we invite more than 20 experienced guest practitioners to participate in different modules and to assist and coach students in various exercises.

The modules

While the first module provides an in-depth introduction to the fundamental features and the law of international arbitration, the following three modules cover practical issues on the basis of a mock arbitration case. 

Every module day, one or two renowned international guest speakers are invited to share their experiences and insights with a limited group of participants (approx. 20 persons). The unique blend of in-depth theory with a large range of practical tips and interactive drafting and pleading exercises, ensures an all-round preparation for a career as arbitrator and/or counsel. 

After the four-module training, participants will have acquired knowledge and valuable insights into how arbitration is conducted by counsel and arbitrators.

How to apply

In order to apply to one of the SAA postgraduate courses, please forward your CV, motivation letter and supporting documents to info@saa-switzerland.ch.

The SAA Practitioner's Course

The Arbitration Practitioner (ArbP) is a program specifically designed for participants with some experience in the legal field, ideally in arbitration.

Why should you apply?

• The program of 3 modules offers a rich course selection, allowing students to practice advocacy skills. We aim to teach participants what cannot be learned from books alone.

• Future arbitration practitioners should learn from prominent practitioners with whom they are able to personally interact. 

• In addition to the head lecturers, more than 15 guest practitioners participate in the different modules to assist and coach students in practical exercises.

• While the training usually includes a lot of travelling for the participants, the upcoming courses will spare you a lot of time and money, while we assure that you get the best experience out of our interactive virtual training.

The next module is coming up in November, covering the following topic:

How to commence arbitration proceedings

On the basis of a mock case, the participants address issues from the perspective of both counsel and arbitrators in international arbitration.

Guest lecturers discuss with the participants how to present a case before the arbitral tribunal. In particular, prominent arbitration practitioners help to improve advocacy skills through practical mock training sessions (mock client interviews, mock arbitrator interviews, mock organizational hearings, mock pleadings on jurisdiction, etc.). Participants will also learn how to draft and submit pleadings (briefs for the Claimant and for the Respondent), as well as how to seek appropriate relief.

 It is possible to sign up for this module individually or you can sign up for the SAA Practitioner's Course.

Learn more about the courses here: https://www.cas-arbitration.org/modules

Apply now to benefit from our early bird discount!

Review Module 1

Review Module 1

The CAS participants completed Module 1 and it has been a great success! 

Christoph Müller and Daniel Girsberger designed the program and were the head lecturers in Module 1. Both are experienced professors and seasoned and highly regarded arbitration practitioners. They were supported by prominent practitioners with whom the group was able to personally interact. A big thank you goes to Alice Fremuth-Wolf, VIAC Secretary General, Friederike Schäfer, Councel ICC, Hannes Latzel, Swiss Arbitration Center, Laurence Ponty, LCIA, Counsel at Archipel, Joe Liu, Deputy Secretary-General of HKIAC, Kevin Nash, Deputy Registrar & Centre Director SIAC, Katia Rener, DIS Case Manager, Olivia Furter, Senior Case Manager Nivalion and Franziska Studer, Senior Case Manager Nivalion.

We were so happy about the positive and dynamic interactions within the group despite the virtual environment of the program.

 The first module was dedicated to an introduction to the fundamentals of international arbitration both in a comparative perspective and with emphasis on Swiss law.

The purpose of this “crash course” is to ensure that by the end of the first week, all participants are familiar with the essential aspects of international arbitration law and practice, particularly with respect to the Swiss legal framework.

Module 1 is based on materials specifically designed for this type of education, and includes practical exercises in all relevant areas of international arbitration, namely:

• The Legal Concept of Arbitration, Fundamental Features, Regulatory Framework and Neighbouring Methods of Dispute Resolution

• The Arbitration Agreement

• The Arbitral Tribunal

• The Arbitral Proceedings

• The Applicable Law

• The Arbitral Award

• Recognition and Enforcement of Arbitral Awards

We are looking forward to module 2, how to commence arbitration proceedings, starting in November, where Participants will put the knowledge acquired during module 1 into practice. On the basis of a mock case, the participants address issues from the perspective of both counsel and arbitrators in international arbitration. It is possible to apply for individual modules. Find out more: https://www.cas-arbitration.org/overview

Interested in education in international arbitration? Why SAA is your best choice

About SAA

The Swiss Arbitration Academy (SAA) is a private institution founded and directed by a group of arbitration practitioners, including attorneys and professors, to provide professional and practical training in arbitration. International Arbitration requires a number of skills. A preferred location for international arbitration like Switzerland is apt to provide education of the highest level. The SAA offers a Certificate of Advanced studies (CAS) in arbitration in collaboration with the Universities of Luzern & Neuchâtel as well as a Practitioner’s diploma in arbitration (ArbP). The courses are open to lawyers, in-house counsel, advanced students and other professionals with an interest in international arbitration. For professionals who do not have a legal background, prior experience with arbitration is recommendable.

Why is the SAA different from other programs?

At the Swiss Arbitration Academy, we understand the need for practical training and offer a program, that has a distinctive practice-oriented approach. We aim to teach participants what cannot be learned from books alone, namely:

•  by teaching all relevant aspects of arbitral proceedings form preparation and client handling to the final award

•  by analyzing all aspects from the counsel’s as well as the arbitrator’s perspective

In addition, we invite more than 20 experienced guest practitioners to participate in different modules and to assist and coach students in various exercises.

How do we adapt to the current travel restrictions?

The faculty of the Academy has developed an online program for the CAS and the ArbP which will be offered, for the first time, in 2021 on a virtual basis only. 
Do not miss this amazing opportunity to take part in these programs without the burden of travel and with the benefit of exceptionally low tuition fees due to Covid.

Provided that the pandemic situation allows to do so, the SAA organizes a 1-2 day live networking experience in Switzerland.

The modules

While the first module provides an in-depth introduction to the fundamental features and the law of international arbitration, the following three modules cover practical issues on the basis of a mock arbitration case. 

Every module day, one or two renowned international guest speakers are invited to share their experiences and insights with a limited group of participants (approx. 20 persons). The unique blend of in-depth theory with a large range of practical tips and interactive drafting and pleading exercises, ensures an all-round preparation for a career as arbitrator and/or counsel. 

After the four-module training, participants will have acquired knowledge and valuable insights into how arbitration is conducted by counsel and arbitrators.

How to apply

In order to apply to one of the SAA postgraduate courses, please forward your CV, motivation letter and supporting documents to info@saa-switzerland.ch.

The Role of Experts in International Construction Arbitration

by Tauqeer Nazim, ArbP

Disputes in international arbitration relating to construction and engineering have been on the rise in recent years. The rise in construction-related disputes can be attributed to the complexities involved in a construction project and to the fact that every construction project is unique.

Construction projects also almost consistently raise technical engineering and programming issues, requiring detailed analysis of a large volume of data like daily, weekly, and monthly progress reports, schedule programme updates and modeling, minutes of meetings, drawings, specifications, correspondence, etc. As a result, construction claims typically require detailed factual input and experts in engineering, delay and quantum evidence. The role of experts in addressing these characteristics is mostly of vital importance.

Experts can help the parties in dispute as well as the tribunals in various roles. Experts can be party appointed, or tribunal appointed.  Most of the institutional rules are specific about tribunal appointed experts but this does not mean that the institutes do not allow for party-appointed experts. The approach these days in international arbitration is for each party to appoint its own experts to provide written expert reports to the arbitral tribunal with their opinions on specific matters.

There can be a number of different experts required in construction-related disputes such as engineers, architects, surveyors, delay analysts, accountants as well as legal experts.  However, time analysis and quantum experts feature in most of the construction-related arbitrations.

This paper aims at defining various roles of an expert in construction international arbitration. The Paper further focuses on appointing the right experts at the right time which can be helpful for both claimant and defendant to gauge the strength of their case and in deciding on the strategy and approach to be adopted during arbitral proceedings. Contact <tauqeer.siddiqui@descon.com> to request the full-text of the publication.

---

Tauqeer Nazim is an engineer and has been working in the construction industry for the last 28 years. He received CAS in Arbitration in 2020. During his career, he has been involved in construction projects in the oil & gas and power sectors. Currently, he is leading contracts section as head of contracts in a large construction company. He has also worked as manager project controls in Middle East. Contractual correspondence, delay analysis and cost claims have particularly been his areas of interest.

Unreasoned awards under Swiss Law | SAA Papers Volume 5

SAA Papers

Hannes Latzel* has written a research paper on “Unreasoned awards under Swiss Law?” for Volume 5 of the Selected Papers on International Arbitration series. Here it is a brief summary of his paper:

Today, it is a universal principle in international arbitration that arbitral awards must state reasons, unless otherwise agreed by the parties. The same rule also applies under Swiss law. While in jurisdictions like the USA unreasoned awards are even referred to as “standard awards”, awards without reasons still remain a rare sight in Swiss arbitrations. This article examines the concept of the unreasoned award from a Swiss perspective and provides a comparative overview of selected foreign leges arbitri in view of this topic.

Furthermore, the Article focuses on the circumstances under which it makes sense for parties to opt for an unreasoned award. As there are advantages and drawbacks to both unreasoned and reasoned awards, it is crucial for parties considering a waiver of a reasoned award to be well aware of what they are signing up for. While an award without reasons can under very limited circumstances be beneficial for the proceedings in terms of costs, efficiency and confidentiality, it might also lead to a de facto waiver of the right to challenge such an award before the Swiss Supreme Court, if the existence of a ground of appeal cannot be ascertained from the operative part of the award.

Finally, the article discusses the scenario in which an arbitrator refrains from giving reasons without the authorization of the parties. A challenge of an unreasoned award solely on the ground that it lacks reasons is not possible under the Swiss Supreme Court’s current case law because an unauthorized unreasoned award constitutes neither a violation of the parties’ right to be heard nor an infringement of public policy. As the absence of reasons indicates that the tribunal has not considered all of the parties‘ arguments and allegations, the concerned party can, however, attempt to challenge the award on the ground that the tribunal has not considered one of its arguments.

Alternatively, a party might request the Supreme Court to order the arbitral tribunal to render an additional award that contains reasons. An action for damages against an arbitrator who issues an unauthorized unreasoned award has only little chance of success as the arbitrator’s liability is dependent on a successful challenge of his award. Yet, a concerned party has the possibility to demand a reduction of the arbitrator’s remuneration and, if need be, to force the arbitrator to give reasons by bringing an action for specific performance before a competent state court.

*Hannes Latzel studied law at the Universities of Lucerne and Bern where he participated in several national and international moot court competitions. After his studies, Hannes Latzel worked at a Cantonal High Court and subsequently in a major business law firm in Zurich. He is currently a Legal Counsel at the Swiss Chambers’ Arbitration Institution (SCAI) in Zurich.

Buy Volume 5 here.

How to Join Third Parties to Arbitration Proceedings | SAA Papers Volume 5

SAA Papers

Jonas Pust* has written a research paper on “How to Join Third Parties to Arbitration Proceedings?” for Volume 5 of the Selected Papers on International Arbitration series. Here it is a brief summary of his paper:

The ever growing complexity of business relationships oftentimes leads to intertwined legal relationships between several parties. Conflicts arising in this context are no longer mere bipolar disputes between two parties, but involve a larger number of parties, some of which pursue different interests. Thus, disputes resolved by arbitration need procedural mechanisms to cope with the different interests while safeguarding the essential procedural rights of all parties.

Historically, procedural rules were developed for bipolar disputes. At the same time, multi-party arbitrations offer the advantage to be more efficient. Conducting just one arbitration is (at best) in the interest of the procedural economy and avoids inconsistent decisions. Nevertheless, the general principles of arbitration must be safeguarded, which institutional rules increasingly reflect. At the same time, an overload of only one arbitration can also lead to procedural difficulties, which as a result only allow for slow and complicated dispute resolutions.

Procedural rules must take note of the consensual nature of arbitration. However, if the parties have validly subjected themselves to an arbitration agreement, procedural decisions – such as joining third parties – might also be permissible against their will. Furthermore, the benefit of confidentiality should be taken into account as including third parties might disclose confidential information. The biggest concern, however, is the equal treatment of the parties; especially if during the constitution of the tribunal an imbalance of influence is apparent. While the French view taken in the well-known Dutco Case pertains to the rule of equal treatment as absolute, other jurisdictions allow for more flexible solutions.

Besides the statutory requirement, institutional rules have also adopted rules on how to join third parties to arbitration proceedings. The article focuses on a comparison of the approaches taken by the institutional rules of the ICC, SCAI and DIS. The solutions vary from the wide discretion for maximizing procedural efficiency to strictly consent-centred approaches. While having flexible rules enables customized solutions for individual cases, it also entails the risk of setting aside procedures as, for example, an improper constitution of the tribunal would impair the enforcement of the award. Therefore, institutions, arbitral tribunals and parties shall cautiously weigh the potential advantages of joining third parties to pending proceedings in order not to endanger the procedural efficiency or even the enforceability of the award.

*Dr. Jonas Pust studied law at the University of Münster, Germany, where he also received his doctorate with a thesis about Multi-Tiered Dispute Resolution Clauses. Before and during his legal clerkship he worked inter alia at the litigation departments of White & Case, Berlin, and Freshfields Bruckhaus Deringer, Hamburg. He currently works in the Arbitration and Litigation Department at the German law firm Heuking Kühn Lüer Wojtek, based in Hamburg.

Buy Volume 5 here.

Third Party Funding | SAA Papers Volume 5

SAA Papers

Janis Matthys* has written a research paper on “How to Balance Third Party Funding and Confidentiality in International Arbitration?” for Volume 5 of the Selected Papers on International Arbitration series. Here it is a brief summary of his paper:

The last few years have seen a remarkable increase in Third Party Funding (TPF), initially focused on investment arbitration, but now spreading to international commercial arbitration as well. While the great TPF debate appears to focus on the issues of conflicts of interest, security of costs and legal privilege, the possible conflicts of TPF and confidentiality have so far received comparatively little attention. Perhaps not rightly so, as the following example illustrates:

The parties to an arbitration have agreed to arbitrate a dispute with the applicable arbitration rules providing for confidentiality regarding both the arbitration’s existence and the documents submitted throughout the arbitral proceedings. Nevertheless, due to financial difficulties, the claimant submits the case to a funder for monitoring purposes. Subsequently, a funding agreement is reached, and the claimant discusses the details of the case with the funder. Did the claimant violate its confidentiality obligations?

Under the assumption that the parties are bound by wide-reaching confidentiality obligations, sharing detailed information about the case with a funder appears to be outright contradictory. There is a very real concern that the funder might not only disseminate confidential information, but also use information about the opponent itself for the purposes of financing subsequent disputes involving or affecting the opponent, or otherwise profit from this information to the detriment of the latter.

On the other hand, parties seeking funding likewise have a legitimate interest in disclosing information to funders. A funder will require comprehensive information to conduct a thorough assessment of the case. Without disclosing at least some (probably sensitive) information a party will not be able to access funding. As a result, interpreting confidentiality obligations rigorously may lead to essentially excluding TPF and thereby access to justice. These conflicting interests can be difficult to weigh and even more difficult to reconcile.

This paper aims to examine what approach is best suited to strike a balance between confidentiality concerns on one side and the demand for TPF on the other side.

*Janis Matthys graduated from the University of Zurich in 2018 with a Master‘s degree. During his studies, he worked in business law firms in Zurich and Munich and was an Intern at CIETAC Arbitration Center in Hong Kong. Also, Janis Matthys was a team member of the University of Zurich at the 23rd Willem C. Vis Moot Court. Currently, Janis Matthys pursues a PhD in international arbitration at the University of Zurich and is coaching the Willem C. Vis Moot Team of the University of Zurich. He received the CAS in Arbitration from the Swiss Arbitration Academy in 2018.

Buy Volume 5 here.

Interview: Grant recipient 2019

Kateryna Shokalo works as an Associate at Asters, Kyiv, and was awarded a partial grant to attend the Swiss Arbitration Academy (The SAA Practioner's Course). Kateryna practices international arbitration and litigation and was involved in complex projects spanning over multiple jurisdictions.

Agatha Brandão, SAA's Director of Studies, asked Kateryna a few questions to get her insight into the programme.

How would you describe the ArbP course? What did you like the most about the modules you attended?

In my view, the hallmark of this course is the practical approach of module leaders and speakers who are generous in discussing real examples and giving advice based on their rich experience. The ArbP course allows experiencing the essential stages of arbitration and related court proceedings based on a mock case. The programme focuses on important details regarding the practice. As an arbitration practitioner, I appreciate that we discussed the nuances of drafting the request for arbitration and terms of reference, we examined difficult fact witnesses, and scrutinized different experts’ reports.

What do you have to say about the group of participants?

This is another hallmark of this programme. I was lucky to study with such an amazing and diverse group. The participants came from different backgrounds: counsels and in-house lawyers, engineers, contract and project managers, insurances & claims managers. This brings an invaluable input into the learning process, and I think that all participants found it useful. On the one hand, it helps to look at the work of arbitration counsel from a practical, result, and client-oriented perspective. On the other hand, for a client, it creates a more comfortable perception of arbitration and counsel work. The duration of the modules, as well as its interactive focus, allows the participants to build lasting relationships.

Do you believe that being awarded a partial grant was essential to attend the Swiss Arbitration Academy? How this opportunity will help you to advance in your career?

Yes, this grant was essential for my decision to take this course, and I am genuinely grateful to the Swiss Arbitration Academy for this investment! I gained an insight into the Swiss approach to arbitration, enriched my toolset for arbitration proceedings, got feedback about my advocacy skills, and trained myself in witness examination. I hope that more people will be able to benefit from this opportunity.

To attend a summer course or separate modules during a year, what is the difference between these dynamics in your view?

The practical difference is how much time you may dedicate for a course on-the-job. Compared with the three weeks Summer Courses at the Hague Academy of International Law I took earlier, it is easier to manage separate "Thursday to Monday" modules dispersed over a year. On the other hand, it is more expensive and time consuming to travel several times to Switzerland. 

Have you been to Switzerland before? How was the experience in Geneva/Zurich? Any tips for accommodation and expenses?

Yes, I have been to Switzerland before. Probably this is why I was not disappointed about not having free time to discover the cities; the course is intensive. The hotels are convenient, but there are also decent and budget Airbnb places in a walking distance from the offices or hotels we had the sessions in. 

If a potential candidate is unsure about the CAS vs. ArbP Program, what would you say?

The first module is an intensive introduction into arbitration, and taking CAS allows to publish a paper supervised by any member of the Academic Council. However, if a candidate has a solid background in arbitration and wants to focus on practical aspects or to study deeper certain issues, it is probably better to start straight from the second module. Some participants who initially took the ArbP Course than upgraded to CAS. It is important to understand what one expects to take away from the programme. If a candidate is unsure about any of those takeaways, they may contact someone who participated in the course before; I would be glad to answer such questions. It is great that the Swiss Arbitration Academy publishes the list of participants on the website. 

Any suggestions for anyone applying for the partial grant now?

In my motivation letter, I emphasized the skills I would like to enhance during the programme, how my experience would contribute to the discussions, and my pro-bono activities in the legal sphere. Additionally, I also think that unique national and professional background within the pool of the course participants matters.

Award writing – are there any secrets?

by Christian Oetiker, VISCHER AG, Basel

Together with Christian Benz and Simon Gabriel, I had the pleasure of participating in the session on award writing at the Swiss Arbitration Academy. The session was part of Module 4 and took place in Zurich at the end of January 2019.

Daniele Favalli, responsible for Module 4, had invited us to speak on two or three aspects of award writing that each of us deemed important. Very interesting was that every speaker highlighted different aspects. This led to a lively debate involving the speakers and participants of the Academy.

Excellent quality and a pleasure to read

My two points were that an award should be at the same time of excellent quality and a pleasure to read. I suggested that there are three ingredients necessary to achieve both: a good structure, a fact driven assessment of the parties' arguments, and clear conclusions.

A good structure

What is a good structure for an award? I like to paraphrase this as a sound combination of a text telling a story which is interesting to read and a telephone book in which you can easily find what you are looking for. Indeed, the award must be written in a way that it is interesting to read it from the beginning to the end. At the same time, the structure must allow the reader to find specific aspects quickly.

The first part of the award should set the scene. This is particularly important for readers who did not participate in the proceedings such as a state court dealing with set-aside proceedings. This part will usually contain an introduction, a description of the terminology used in the award, the parties (the "actors" in the story) and the contractual relationships, the factual background and the procedural history. This first part will also deal with jurisdiction and the governing law.

The second part of the award then contains the assessment of the parties' claims. It will usually start with a broad overview of the parties' positions (describing the "essence" of their case) and the relevant issues. The structure of this part will depend on the arbitral tribunal's legal analysis of the case. The sequence of the issues dealt with is important and must be logical and convincing.

Then this second part will proceed to deal with each pertinent issue in turn. I suggest applying the following structure: claimant's position, respondent's position, the applicable legal framework, the applicable contractual framework, the arbitral tribunal's assessment, and the conclusions (what does it mean in relation to the claim?). Following this structure will not only help the reader, but also the author of the award.

A fact driven assessment of the claims

In this second part, an important ingredient is a fact driven assessment. What do I mean by that? When setting out the parties' positions, the award should spell out what the parties actually said in their briefs and at the hearing and refer to witnesses statements. The award should avoid general descriptions of the parties' positions or the arbitral tribunal's assessment, but be specific and rely on what the parties and their witnesses specifically said. Citing statements verbatim may be a good tool to achieve this. The parties must be able to recognize their own case in the text. If they do not, this will cast doubt on the quality of the award.

Clear conclusions

Finally, the arbitral tribunal should be brave in stating clear findings and conclusions. This means that the award must make clear why a question was dealt with, what conclusions were reached regarding this question, and what impact or importance this conclusion has on the overall assessment.

The result will be an award that is well structured, takes into account what the parties and the witnesses actually said, and draws clear conclusions. In short: excellent quality and a pleasure to read.

Experts in international arbitration

by Dr. Nicole Moerchen and Thomas Hofbauer, FTI Consulting, Munich

In our presentation we addressed the different roles of an expert witness, i.e. party appointed versus tribunal appointed or single joint expert witnesses in different jurisdictions. We also discussed pitfalls when dealing with expert witnesses such as jeopardizing their impartiality. The topics of expert reports may be very complex and difficult to understand. Therefore, not only the content of such a report but also the structure is of high importance. As we write the report not for ourselves but the addressees we always start with the question who they are and which background they might have. A report that nobody understands is useless. We normally put the executive summary at the beginning of the report as this is helpful to get an understanding of the overall approach of the expert and the core questions and findings. We also find it very helpful briefly introduce each section of a report with an explanation of what the reader will be presented over the next pages. And finally, if technical issues are presented, it is important to explain them in a common language rather than just in expert terms.

The topic of expert meetings were widely discussed in the session. From our expert perspective we normally appreciate to have the opportunity to clarify issues and approaches between the experts. Based on such an understanding the experts may be able to explain to the tribunal why their findings and conclusions are deviating. Counsels perspective was different. They have the fear of having no control of the meeting and its outcomes. Also, client’s might be concerned if counsel is still controlling the process while having an expert meeting.

After a nice lunch, the participants were divided into groups for the annual role play. One group represented the tribunal, another group represented party A and its expert. The last group represented party B and its expert.

As usual, no one would like to be the expert. Nevertheless, the two appointed experts represented their characters in a professional way, corresponding to the description and behaviour stated in the mock-expert reports.

The role play was very dynamic. The Tribunal tries to keep the power over the proceedings by proper time management and allowed questioning time. Counsel raised objections and tried to push their expert opinion forward. Once the expert was so engaged in the proceedings that he started discussions with counsels and tribunal, addressing questions to each of them. But the tribunal was able to calm down the situation and to keep control over the proceedings. 

At the end of the day, it became clear that the selection of the appropriate expert is not so easy as everyone thought at first. The expert selection depends on the case, the required expert expertise, the expected expert behaviour and in how far the expert is able to deal with stressful situations.

Profile: Grant recipient 2018

by Thien Le Nguyen Gia (LL.B, LL.M, ArbP), Lecturer of University of Economics and Law, Vietnam National University Ho Chi Minh City

The more Vietnam has integrated into the global economic relationships, the more commercial disputes Vietnamese enterprises have to face with. International commercial arbitration would always be admired as an effective and prestigious for such commercial disputes. Therefore, the notion of international commercial arbitration has been extremely significant. In order to follow up on international best practices in the course of international commercial arbitration, there have been two features on which Vietnam has had to focus, those have been improving the legal framework as well as learning international experience of developed and friendly-arbitration countries.

This has been my initial purpose to come to Europe in order to study my PhD project, which has specialised in comparative perspectives on legal instruments and case laws of European countries and Vietnam. It has been uncontested that European countries’ various and valuable experience of international commercial arbitration can be applied as best practice for both Vietnamese practitioners and academics.

I was fortunate to find out more about a really sophisticated program named Certificate of Advanced Studies (CAS) concentrating on international commercial arbitration held by an excellent initiative named Swiss Arbitration Academy (SAA). Although it came to my mind that a grant covering whole tuition fees of the Program will be transparently challenged for the applicant, I decided to apply for it. And so, fortunately, my application was chosen via considerable evaluations of Board of Directors and Academic Council of the SAA. That has been my great pleasure to be given an opportunity to attend this program.

The teaching content is well-designed with 4 sessions in totally 20 days, it covers most of the imminent features of international commercial arbitration. While the proceedings of an authentic arbitration has been modified and taught by particularly distinguished professors and practitioners. Attendees have chances to learn not only academic features of international commercial arbitration but also to take part in divergent interesting role play sessions as arbitrators, mediators, counsels, witnesses as well as the parties themselves. Respective matters relating to theoretical contents and the role-play performances have been carefully assessed and liberally discussed amongst instructors and attendees in professional atmospheres. I have to express that this Program has been one of the most prestigious ones I have ever joined!

After finishing my PhD, I will come back Vietnam to serve as a full-time senior lecturer specialising on both international and domestic commercial arbitration in Vietnamese and other Asian countries’ universities. I will also publish several articles and books specialising in international commercial arbitration so as to introduce updated knowledge and modern best practice to Vietnamese and other Asian countries’ arbitration community. Additionally, my strongly desirable profession is to become an arbitrator or a counsel for companies. Valuable knowledge as well as professional practicing skills I have learned in this Program will definitely enable me to attend in arbitral proceedings as an arbitrator or a counsel confidently and professionally.

Testimonial: Grant recipient 2017

I came across Swiss Arbitration Academy while looking for an arbitration programme that could nurture and refine my skills as an arbitration practitioner. The CAS programme offered an eclectic blend of theory and practice of arbitration and clearly proved to be beyond my expectations. The course structure encapsulated all important stages of the arbitration process and the teaching methodology gave valuable insights from academia, practice and industry experts. It was a tremendous learning experience and, as a common law practitioner, I found the discussions very enriching, particularly, the ones pertaining to the interface between the civil and common law tradition in international disputes. The participants comprised of a diverse group of young and experienced practitioners from various countries, which raised the level of discourse and made the gathering truly international. I would recommend the programme to international arbitration practitioners who wish to learn the nuances of international arbitration advocacy and network with fellow practitioners from across the world. My sincere gratitude to the Academy for their gracious support and the generous grant that enabled my participation in the programme. The programme has certainly given me many memorable experiences and precious lessons that I constantly try to emulate in my practice today as an international arbitration counsel. - Sooraj Sharma