January 19, 2023

5 Trends to Watch in 2023 International Arbitration

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  1. Increased Use of Emergency Relief in International Arbitrations - To meet demand for more flexible and timely ways to achieve dispute resolution, some clients are turning to emergency arbitration procedures as ways to not only preserve the status quo but also obtain an early assessment of the merits (through the lens of the likelihood of success). These tools fill a critical gap in the international arbitration procedure for those with highly time-sensitive disputes. With a possible recession looming, expect to see this trend continue - particularly in M&A matters. (And as a corollary, expect to see an increased insistence on the application of expedited/streamlined procedures in cross-border transactions and disputes.)

  2. Gender Equality is Growing in Arbitrations Globally - Spurred by many of the top U.S. companies' commitment to Diversity, Equity & Inclusion (DEI) such that their leadership, staffing, and efforts reflect their customer base, there has been a major movement by the arbitration industry toward addressing the ways it can be more inclusive of women and younger attorneys. Members of the international arbitration community now adhere to the Equal Representation in Arbitration Pledge, described as a first step to increase, on an equal opportunity basis, the number of women appointed as arbitrators in order to achieve a fair representation as soon practically possible, with the ultimate goal of full parity.

  3. Claimants May Turn to State Law in Certain Jurisdictions to Obtain Discovery in Aid of Arbitration Given Narrowed Scope of 28 U.S.C. § 1782 - In light of a recent U.S. Supreme Court ruling that 28 U.S.C. § 1782 does not authorize a district court to order discovery for use in arbitration conducted by a non-governmental or intergovernmental adjudicative body, claimants can turn to state law in certain jurisdictions to obtain discovery in aid of arbitration. For example, New York's Civil Practice Law and Rules ("CPLR") § 3102(c) provides measures for discovery in aid of arbitration from parties who are subject to the jurisdiction of New York courts.

  4. Climate Change Gives Rise to Greener Arbitrations and More Climate Focused Disputes - The movement to reduce paper and travel in the arbitration process intensified during the COVID-19 pandemic and as it winds down. This resulted in participants becoming more comfortable with various technologies facilitating remote procedures. The number of climate change centered disputes is also increasing, as claimants bring actions against investors and governments regarding how they have handled the issues involved.

  5. Use of More Sophisticated Technologies to Bring Remote Arbitrations to Life Will Likely Grow - The rush to go virtual in the COVID-19 pandemic sparked creativity in technology providers and the arbitration industry to create more sophisticated ways to meet virtually. At the top of this list is a technology that creates 3D virtual hearing rooms, with participants situated together and seated in the places they would occupy during an in-person hearing.

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