Who Speaks for Arbitration? Part 1: In discussion with Artem Doudko FCIArb and Peter Ashford

In Part 1 of this conversation, Byfield Founder Gus Sellitto speaks to Peter Ashford, independent arbitrator, mediator and consultant and Chair of London Arbitration Week, and Artem Doudko, Fellow of the Chartered Institute of Arbitrators and partner in Osborne Clarke’s Dispute Resolution practice.

Drawing on Who Speaks for Arbitration? — a strategic report by Byfield — they explore how international arbitration is perceived beyond the legal community, and who is shaping its public narrative.

The discussion examines the gap between arbitration’s global importance and its limited visibility among businesses, and considers what the arbitration community can do to communicate its value more clearly, credibly and consistently.

Read the full report here: https://byfieldconsultancy.com/who-speaks-for-arbitration/

Thank you for listening!

Transcript

SPEAKER_02 0:12

Hello and welcome to Matter of Reputation. I'm Gus Salito, founder of Bifield, and very uh pleased that we have a special episode today where we'll be talking about a new piece of thought leadership published by Bifeld called Who Speaks for Arbitration? The report looks at how international arbitration is perceived beyond the legal community and how its public narrative is being shaped. International arbitration sits at the heart of global commerce. It provides a neutral and effective way of resolving cross-border disputes, and it's widely used and trusted by those who rely on it. However, one of the key findings of the report is that arbitration is increasingly being judged, not on its day-to-day effectiveness, but on how it's understood externally by policymakers, the media, and the wider public. The public narrative is often shaped by a relatively small number of high-profile or controversial cases, which we'll talk a little bit more about, rather than the reality of how arbitration operates in practice and the benefits it brings to its users. And while there's no shortage of expertise within the arbitration community, its voice is often fragmented with different parts of the system speaking independently rather than an uncoordinated way. So the question we wanted to explore and which we'll discuss today is a simple one. If arbitration plays such a significant role in the global economy, who is responsible for explaining it to the wider world? I'm delighted to be joined by two leading figures in the arbitration community to discuss this very topic. Firstly, Peter Ashwood, an international arbitrator, mediator, and consultant, and chair of London Arbitration Week. Peter spent nearly 25 years leading arbitration and disputes practices at top law firms and is a leading figure in this field. And Artem Dudko, a partner in the international disputes team at Osborne Clark, specialising in international arbitration. Artum acts as both a counsel and arbitrator and is widely recognised as one of the leading practitioners in the London arbitration market. Peter, Artum, thank you for both joining. How are you?

SPEAKER_00 2:30

Very well and a pleasure to be here. Likewise, so thanks for the invite, Gus.

SPEAKER_02 2:35

Important topic for us to discuss. It is indeed, and thank you very much for both contributing uh to the report. This report was sparked by a conversation that Artum and I had uh over lunch talking about the reputation of international arbitration, and it's led to uh a roundtable discussion and this report, which is going to be food for additional thought as we look to develop some of the themes. So let's crack on. Let's start with a bit of an open question. Since you began your career, Peter, how do you think the public discourse around arbitration has changed?

SPEAKER_01 3:14

Uh well, it it was it was an awful long time ago, 40 years ago, that I I started my career, more than 40 years. Um, and uh life, I certainly my perception of life at that stage, uh what I interacted with was very different. Um so the the the arbitration world that I was exposed to is was largely domestic and largely centered around uh construction. Uh that was the the standard sort of JCT type contract dispute. Uh and that's where I cut my teeth on an arbitration. Uh the prospects of uh doing something internationally uh were far uh less than they are now. And um the certainly things like investor state and other exciting things that we see today certainly were simply not on my radar. I'm sure um well we know that they existed, but um the statistics are that that they existed in a much lesser format than than they do today. So the change has been enormous.

SPEAKER_00 4:22

Um I have uh practiced arbitration for a little bit less than Peter, but also for uh quite a long time now, for over 20 years. Interesting enough, when I started, um I don't remember ever discussing arbitration at university, for example, doing it whilst doing a law degree, or at law school, I think we had at most a day dedicated to arbitration. So coming into the legal profession, I didn't know what it what it was. And um I uh during my um train contract was placed in a dispute seat, and I was in the team with a partner called Tim Taylor, now Tim Taylor KC, and uh Louis Flannery, now Louis Flannery, KC. Louis was an associate, Tim was the partner, and they introduced me to the world of arbitration and and said, look, we're doing this dispute, it's outside of the courts. Drew a little sort of diagram explaining what it was, and I thought, oh, this is fascinating. It's a it's a private way of resolving disputes on parts litigation, but it's something that I knew very little about at the time. Now having done it for 20 years, I know a lot more about it. But it was still then, I think, uh few and far between discussed outside of those who actually were involved in in the process. Clients came across just when they were involved in arbitration, which doesn't happen often, perhaps should happen more often enough, uh, it were appropriate. Uh, but but but people who were not involved in arbitration didn't know enough about it. And I think today this problem still exists.

SPEAKER_02 5:52

It's a really interesting point you you mentioned there, Arthur, because before we started the discussion today, you said, you know, in inside the arbitration community, uh arbitration is is well known and well regarded, and its benefits are well known and well regarded. But it's it's the external users of arbitration where a lot of work needs to happen. However, at the point about sort of dispute resolution lawyers or want-to-be dispute resolution lawyers sort of being knowing more about international arbitration at university when they're studying law and beyond uh when they're doing their training contracts, that's that's quite an interesting point. In terms of the users of international arbitration, what what's what could be done to help the better understanding of the benefits of international arbitration and how it works?

SPEAKER_00 6:51

Well, look, I th I th I think it's it's a question of um educating uh the end users about the existence of arbitration, the nuances of arbitration, and its advantages and disadvantages, so that end users can have it in their toolkit and use it when appropriate. And I think this is a uh an obligation or a role that falls on all of us. Uh, by this, I mean members of the arbitration community, where it's arbitration lawyers, uh arbitrators, uh, those uh others involved in in arbitration, arbitral institutions, all of those, it's for us together to to explain to those outside of the arbitration community what what it is and how it works and what you do with it. And um I think the way to do it is to to first of all to try to have the information available in an easily understandable format and to actually prioritize explaining what arbitration is to those outside of the arbitration world.

SPEAKER_02 7:57

Peter, what are some of the risks which uh are picked up by this report of not the end users of uh arbitration not fully understanding uh how it works and the benefits it brings? What are some of the risks we're seeing?

SPEAKER_01 8:11

Well, um my first comment is um some of the users of arbitration are exceptionally well informed. Uh look at the maritime industry, look at the the commodities world, construction to perhaps a uh the same degree. Um they they they know well what they're dealing with and they deal with it on a daily basis, um there are some that that are very familiar with it and some who are who are very much up to speed on its benefits and its usage, uh, probably as much or more than some of the lawyers involved. So that that there will be pockets of of really extremely well-informed um uh users. There are others that that are more behind the curve, and what I would class them generally is the general commercial, uh, who are doing a bit of trading internationally, but perhaps not a huge amount. And they may have in-house council or may not, and if they have in-house counsel, it may be one or two people. So so they're not uh they haven't got a specialist disputes package within the in-house team uh and their council who are having to deal with both drafting contracts, terms and conditions, and everything else in between, regulatory work and and everything else. Uh and the the the I I agree with Artem and I agree with the report uh with the sentiment that we need to get uh arbitration at the forefront of their minds. Uh and if we don't get that out there, the risk is that they won't use it. Uh when, in fact, objectively, and if they were fully informed, they might well want to use it. So we we are not getting the volume of disputes through arbitration that we might have. And we might, you know, we need to tell them about the benefits of arbitration. Um we need to tell them that you know it's it's uh that there's no appeal rights, which are fine if you win, if you lose, you might well want an appeal right. Uh if we tell them about confidentiality and privacy and the ability to select your own tribunal and all those sorts of benefits that go with uh with arbitration as we know it. Um so uh if if they they had all that, they might decide they want to choose it. But maybe uh this is a subsequent question, but the the world is not all rosy in the world of arbitration, and we from the inside can do more to make it yet more attractive to the users.

SPEAKER_02 10:36

Yes, indeed. And it's it's true to say, isn't it, that in in FTSE 100 contracts that there will probably be an arbitration clause in in those contracts somewhere in in most of those uh contracts. Uh so Artum, you you mentioned in House Council earlier before we had this conversation, uh, what more could be done to better inform the business community, not just large businesses, but businesses of all sizes who could benefit from arbitration in how they draft their contracts and resolve disputes that might arise from those contracts?

SPEAKER_00 11:11

Well, I think here the we need to think of instances when the business community does hear about arbitration, and the probably the most often instances are the following. One, they hear about some large case that has involved arbitration and something radical has happened there, so it's received coverage and and and the business community has been informed about it. So that's one instance. Second instance is the party becomes involved in an arbitration, and so with no prior experience of that, it is now suddenly facing this process, may not know about it, may not know how best to do it. And here it may get good advice or it may get bad advice, and so that's the second instance, and then the third instance is they may hear about arbitration by attending an arbitration-focused event or a legal event where arbitration lawyers are talking about it. And I think I'd like to focus on this third one because I think this is the one where we can tangibly do something better. And by this, I mean the following. Quite often, when describing arbitration to those outside of the arbitration community, it may sound a bit like a sales pitch, and that may turn those who are listening off from hearing about it. So, what we need to do better is we need to talk about arbitration by not make it sound like a sales pitch, but make it relevant to those who are listening and explain the different aspects of it in a little bit in a way how Peter has just done very briefly, just summarize some of the key aspects of why arbitration is a good thing for the business community or could be in certain circumstances. And I think we need to do more of that.

SPEAKER_02 13:03

Peter, do you have any views on what Artum's just said?

SPEAKER_01 13:07

Yeah, um, I I I I agree. Um Artum and I don't always agree, but I do agree very much.

SPEAKER_00 13:15

We agree about a lot of things, Peter.

SPEAKER_01 13:16

So it's we agree with about most things, that's absolutely right. Um, and um uh so so yeah, bro broadly I agree. We we've got to do that. But I I think there's for the for the community, the arbitration community, there's there's also a job to get our own house in order, um, and to um to to to accentuate the benefits of arbitration over litigation. Now um it it's probably not quicker, it may be a bit slower than than going to the commercial court in London, which is very efficient. Um so is it cheaper? Well, not necessarily. You know, you've got to pay for any sort of decent case, half a million pick your currency, they're all much the same these days, but half a million uh pounds, euros, dollars to to the tribunal to decide the case. Um and uh so it's not necessarily quicker or cheaper. Um and I think that's that's where the challenge is is laid down to the community to address that and say we we can do that, we can get it quicker and cheaper. Uh you the users have to decide what you want to give up to make it quicker and cheaper. Um, you know, do you want to leave no stone unturned? And if that's what you want, uh we can deliver that. Um but I think it it's it's the that ability to offer um uh something that's not a one size fits all. Uh and at the moment we're we're going too far down the road of a what's called a standard P01, the pre first procedural order, where the the tribunal sets out the procedure to be followed. And that is getting too standardized, in my view, and it needs a sort of fresh look at each case to say what do we need to do in this case uh to properly and fairly decide all the issues. And and if we um if we manage to do that successfully, and I think the tribunals need to be a bit more uh active, a bit more uh um uh transparent with what they're thinking at any one stage. And I think the clients and users, yeah, we can see that they'd like to be helped more on uh that that's an issue that that we need to work on, or we need to explain our position a bit more. Um, I think that's really helpful to the users, to the parties. And that that is, I think, where uh the community needs to get its house in order in order that it can properly sell it to the users.

SPEAKER_02 15:53

Martin, you mentioned some of the big sort of headline cases, uh, and that's how the wider business community and others become aware of international arbitration. We've seen quite a few of those negative headlines. Uh, where do you think much of this public criticism is coming from? And how can you know publicity around investor-state disputes be better managed by the arbitration community?

SPEAKER_00 16:17

Well, it's uh look, it's not just investor-state arbitration. That's definitely some of the bigger cases and the ones that do generate the the public interest, but commercial arbitration as well. Some cases generate public interest, but but remember, the each case is individual and and sort of on its own facts and the relevant applicable laws to that particular dispute. So all disputes are different, and I think the ones public shouldn't think that all arbitrations are the same. Uh, and and and so I think it's important to perhaps when there are uh cases that do generate a lot of publicity, important it is important for once again members of the arbitration community to comment and explain and put them into the context of why has this particular case uh turned out the way it did, what what made it different, what was so special about it, and why it's created this resonance and why that perhaps is not what usually happens in arbitration. It feels like arbitration, it's a bit like I don't know, always remember reference to Apple products. They simply work. And it feels like with arbitration, in the most part, it's a bit like an apple, it works. And the ones that that the public does hear about are the ones that go wrong, which are which are rare and and and don't don't happen very often. So I I think it's it's it's explaining this in in in the as against the situation the the situation of cases which do generate the publicity uh is important. But I'd I'd just like to come back to something Peter mentioned. I completely agree with him. Uh we would this is an agreeable discussion, but but this point about arbitration is becoming too uh similar. And I I think this is a major point for us inside the arbitration community. My 20 years plus of arbitration, most arbitrations have proceeded along very similar, if not identical, lines. And actually, arbitration in theory allows for a much diverse way of dealing with disputes in different cases, and we're simply not using that enough. And I think there are many different reasons for it. Perhaps the tribunal could be more robust in in getting parties to do something different, not in the usual ways. Uh, perhaps parties can pre pre-agree to something more appropriate, but but this actually being not using the standard arbitration procedure, I think there's something to be said for that. That will make arbitration more efficient and perhaps cheaper and quicker than litigation.

SPEAKER_02 18:58

Some of the criticism uh around uh arbitration and one of its benefits is its very confidential nature, which has led to uh uh allegations of you know secrecy and very hard to penetrate the system. Uh Peter, how how do you respond to that?

SPEAKER_01 19:16

I I think it's a fair criticism where a state is involved. Um, and that can either be a an ISDS um uh case or it can be simply a commercial matter that the state has entered into, it's bought something or whatever. Um and um I think where a state is involved, there needs to be additional transparency um for public buy-in, that it's public money that's being spent. Uh, you know, was it a defense that should have been run? Um I mean I've just finished um uh as counsel uh an investment treaty case. And uh, you know, I I and as it happens, the state has just had a change of of governing party um after we finish the hearing, and it may well be that the new party will say, I can't think why the previous regime decided to run that. Um it shouldn't have done, and it's it it brought the whole thing on itself, but I won't go into the details of that. Um but so I think where where um states are involved, absolutely we we need to work harder. Um and the the ICID uh rules provide for transparency, but on as often as you can opt out of of the transparency, and I think there should be a a clear presumption or a rule in favor of transparency where states are involved. Um for commercial parties, um it's their private dispute, and I don't see that that the public needs to access that. Indeed, as we've mentioned already, that's one of the very powerful reasons why people choose arbitration over litigation. They don't want to wash their dirty, dirty linen in public. They they want a private dispute resolution. Um and if if that's what parties agree to, I I see no difficulty with it. So I think you you one size doesn't fits all, then it's different for commercial parties and it's different for states. Now you've got the hybrid area of um state-owned SOEs, state-owned enterprises, um, and whether they fit in the commercial or the state thing. And that's a that's a question of detail that needs to be sorted out. But um uh the the principle of those two dividing lines, and then SOEs go go somewhere in the middle or flip to one side or the other, depending on precisely what they're doing.

SPEAKER_02 21:33

Thank you, Peter. Let me just picking up on that, and uh Artum or part of our report talks about reducing distrust in the system, and and we had one of our contributors highlighting anonymised award summaries used by the LCIA, for example, which can show the process is fair while preserving confidentiality. What are your thoughts on on that on that specific point and other measures that could Perhaps uh make international arbitration more transparent to the public and its users?

SPEAKER_00 22:07

Well, I I I think if we look at commercial arbitration at least, then confidentiality is one of the cornerstones of that. Unless obviously both parties agree to avoid confidentiality. In general, I think anonymized award summaries are a good thing because it allows others to see what happened in cases that that took place, it allows to the building of practice, perhaps an opportunity to develop some precedence. But I think the the flip side of that, with which I do have some concern, is that if parties don't agree to this anonymized award being published, then reducing only, for example, the party's names may not do enough to maintain the party's confidentiality. Because, for example, if we describe the industry sector, it's a large uh operator in that sector with perhaps its geographical basis, it becomes relatively easy, or perhaps not so easy but still possible to figure out who who it is who's been a party to that dispute. And if a party hasn't agreed to waive its right to confidentiality, then this in my view presents an element of difficulty. There are two conflicting um uh rights here. There's a sort of right to see these anonymous awards, or perhaps an interest to see these anonymised awards, and then there's the right of a party to its confidentiality. So I see an element of problem or issue with that. But um, I think in general, I think anonymized awards are are a good thing as long as confidentiality rights are not breached where a party doesn't wish for that to happen.

SPEAKER_02 24:15

Our report talks about some of the main barriers that prevent arbitrators, uh institutions and practitioners from publicly responding to criticism of the system or indeed speaking up for the system. Uh Peter, why do you think that is? What are these main barriers that are preventing the arbitration community from really taking a front foot in explaining what arbitration is and how it works and why more people should be using it?

SPEAKER_01 24:46

I think it's what we call uh due process paranoia, um, which has two aspects to it. Um one is challenges, that if you say anything, then you're uh potentially uh open to challenge as an arbitrator. So the the arbitrators themselves are trying to keep quiet about it. Um but a huge shout out to the LCIA for publishing their decisions on challenges, which I think is is a huge step forward in um transparency and and letting everyone know that so they publish uh the reasoning of typically why a challenge is refused, because the vast majority are refused. Um but I think that's that's really important. Um I was involved in in one case where uh the the chair of the tribunal was removed for a comment at a at a conference. He didn't name the parties, he didn't identify the case as such, but as Arton just said, he said enough uh that it it he he identified the case to those who knew enough about it to to read in that it was between um certain parties and certain things were happening. So uh the LCIA court did remove in that circumstance. It was a very unusual case where the the court uh assembled a division of three uh who held oral hearings for the challenge. Um but that was that was a very interesting case. Um so so I think it's partly uh the fear of being challenged. Um and and I think there's a role there for the institutions to be more robust in in rejecting challenges. And I mean, anecdotally, you you hear that the ICC, as soon as you put something down, they they they take that as grounds for not confirming an arbitrator. Um I don't think it's quite that bad. I think that the the the press that the ICC get on that is probably a bit unfair. Um and certainly my most recent experience is that they welcome uh full disclosures. Um and um uh the the second part is is fear of being prejudging if you express a view at a conference or you write a book or you do something, uh then again um the there is uh the thought that um you you either won't get appointed or you get challenged. Um but I I'm a firm believer in in wide and extensive disclosures. I think that uh behoves all of us in the community, uh, and I always put at the end of my disclosures um uh the an extract from the IBA uh rules or guidelines rather on conflicts of interest uh that say that an arbitrator who makes a disclosure considers himself to be um impartial and independent. Otherwise, he would either uh decline the the the um uh the appointment in the first place or he would resign if he's already been appointed. Um and uh I I think that we need robustness. Um in my capacity as chair of London Arbitration Week, for example, uh one of our patrons is the president of the LCIA court, Maxi Shearer. And um uh I sit on the committee with somebody from the marketing department from the LCIA. Uh it doesn't have anything to do with case administration. Um, but I feel it appropriate to disclose those two facts in an LCIA case. That I don't want anyone to say, oh, I see you're very chummy with the LCIA. Um, and perhaps that's why they they did or didn't do something. Um so I'd much rather that information was out there uh and we share a professional address uh uh at the IDRC um and we both pay rent to the same people and and those sorts of utterly mundane, completely irrelevant, but I disclose it anyhow for an LCIA case because I think it's it's important and it brings credibility to the process that if I'm if I'm disclosing that um I I'm satisfied that I'm not influenced by by those factors.

SPEAKER_00 29:05

Well, I think first of all, the arbitral institutions, well, there are many arbitral institutions. The leading ones already have a strong voice and speak uh on behalf of the arbitral community, but I think we can all do more, and actually also I think on some issues the arbitral institutions do speak uh with a common voice, and uh we've seen uh certain instances of that over over recent years, so I think that does happen, but I don't I I do think um we including the arbitral institutions can can simply do more. I don't I don't think there is an issue with kind of disagreeing views. Obviously, I mean we are all entitled to to have our own views, and and perhaps there is a difference of views on some issues, and that's that's a good thing. I mean, for example, the the there is uh different approaches on arbitration fees, there's different approaches on um how to expedite proceedings in in arbitration uh matters. And and actually I think it's it's quite good to have different approaches and different views on on these issues, but I don't think there is a uh there is something like uh uh uh diametrically opposite views on on some some some of the big issues which which kind of uh show disagreement between in institutions and and others in the arbitration community. I don't think that's that's that's the case. I think uh actually we're quite uh quite united to have similar views generally, I I I believe it's a very good idea.