To the outsider, the world of international arbitration can seem a quite closed and inaccessible one. Yet, most of those who became successful in international arbitration began the adventure with small steps.
While practitioners who began their practice some thirty years back had to hack their own paths through somehow uncertain and relatively unknown territories, the younger generations have the benefit of treading across pathways and roads already well-travelled, to start building their own practice. In addition, as the practice has evolved, several affiliated professions have developed in its wake. Tribunal secretaries, arbitral clerks, case managers, experts are some of them. Barristers and attorneys have also developed dedicated dispute resolution practices.
This, in theory, at least, ought to make breaking into the world of international arbitration a not so difficult feat. However, it seems that the barriers to entry are still high, and one of the causes is the limited number of qualified professionals in the field and its related sub-fields, which brings us to the important topic of training and education.
Indeed, as the world of international arbitration continues to attract attention and interest, the need for education, training and continuous professional development in arbitration remains a much-overlooked area.
A quite dangerous state of affairs considering the role of arbitration as a private justice system having at times far-reaching impacts on the socio-economic state of nations, of societies, of firms, of families. There is a dire need at all levels for training and education in arbitration, and not merely in its basic aspects, but in its professional practice as well as its related issues, complexities and on-going developments. For instance, professionals aspiring to work in the field of international arbitration need at the very basic level to know and understand the principles of law relevant to commercial disputes. They need to understand the role of applicable arbitration legislations, and the procedural framework of international arbitration.
Other important topics include a good understanding of the powers, rights and duties of arbitrators, the proper articulation of claims and defenses, different approaches to evidence and fact finding and knowing how to evaluate different types of evidence. They must also have a good knowledge of how to manage complex multi-party arbitrations, how to prepare for a hearing, how to conduct distance, documents-only, and in-person arbitration hearings, and how to write well-reasoned and articulate arbitration awards.
Of no least importance is a knowledge of how to deal with practice issues and ethical concerns, for instance how to ensure natural justice in distance, documents-only, and in-person hearings. The above is only a tip of the iceberg of knowledge and expertise required to master the field of international arbitration, not to mention to conduct a simple domestic arbitration case.
However, are aspiring arbitrators reaching out to obtain the expertise and training required?
Often, the first impulse is to get registered on a Panel or an official list of Arbitrators maintained by an arbitral institution or obtaining an accreditation as an arbitrator. While this can help, it undoubtedly does not automatically turn an aspirant arbitrator into a professional arbitrator. The learning curve is steeper than that.
Today, channels of knowledge and education are so varied and there is a wealth of training and education opportunities available, and which can be accessed through modern technology. In addition, more and more events are being organized around the topic of arbitration, and such events provide good networking and learning opportunities for aspiring arbitrators.
Other interesting learning pathways involve working in related sub-fields, for instance as a hearing assistant, as a tribunal secretary or an arbitral clerk. The work of the tribunal secretary involves mainly organizational and administrative tasks in support of the tribunal’s work, but consists of a precious avenue for gaining hands-on experience and knowledge. Some of the new generations of those appointed as international arbitrators started their career as tribunal secretaries or arbitral clerks, learning the gist of the game with experienced arbitrators, before moving on to build their own practice.
Last but not least, those seeking to break into international arbitration can also find precious and invaluable insights through interacting with experienced international arbitrators, reading their books and articles, attending their lectures and seminars.
Mr. Neil Kaplan, President of the MARC Court, and considered as the Father of Arbitration in Hong Kong, believes that “if you join the young arbitration groups in your jurisdiction, sit with and watch experienced arbitrators, go on a tribunal secretary course, join the Chartered Institute of Arbitrators and write something in one of the journals things may happen. It is a slow process but never underestimate the importance of luck”.
Mr. Anthony Canham, also a Past President of the Chartered Institute of Arbitrators (CIArb), advises that the best available arbitral training programmes are those provided by the CIArb. The CIArb has an active membership branch in Mauritius. MARC, which also regularly organizes training in arbitration and mediation, conducted last year a training in award-writing jointly with the Mauritius Branch of CIArb. The training was conducted by Professor Jeffrey Waincymer, author of ‘Procedure and Evidence in International Arbitration’.
Mr. Anthony Canham is a Civil Engineer by profession and a renowned international arbitrator, having been appointed 17 times as an international arbitrator and in more than 200 construction arbitration cases. He has congratulated MARC “on its ability to provide excellent hearing facilities having conducted a four-party international arbitration at the MARC premises, under MARC Rules with 14 Counsel and advisers, a state-of-the-art transcription facility, tribunal room and dedicated party break out rooms with catering and support services”.
Mr. Niels Schiersing, international arbitrator having conducted more than 50 arbitrations, recommended during a recent MARC event, the ‘CNC’ method for those seeking to build a reputation in the field of arbitration, a method which he explained as follows: ‘demonstrating Competencies (earning the degrees required, teaching, publishing articles); creating, maintaining and expanding a Network (meeting and interacting with colleagues, attending events and conferences); and finally handling your Cases well (interacting with other tribunal members and arbitration institutes, being pro-active, responsive, diligent, clever, professional’).
As international arbitration extends its outreach and impact on society and the dispensation of justice, it is high time that due importance be given to training and educating the next generations of practitioners, so as to consolidate and build trust in its professional practice.