HIGHLIGHTS

ICCA Congress 2024: Embracing Humanity in International Arbitration

The 26th ICCA Congress, held in Hong Kong, marked a transformative moment in the narrative of international arbitration. Themed “International Arbitration: A Human Endeavour,” this event emphasized the significance of human elements in the practice of arbitration, highlighting its evolution from an exclusive domain to a more inclusive and accessible field.

A Legacy of Change: From "Grand Old Men" to Technocrats:

Bryan Garth’s opening keynote set a reflective tone for the Congress. Drawing from his seminal work, Dealing in Virtue (1994), Garth revisited the historical dominance of a select group of “Grand Old Men” in arbitration. Their reputations once dictated the practice and development of arbitration. However, a generational shift towards “Technocrats”—technical experts with grounded credentials—expanded the field’s horizons beyond its previously selective borders. The evolution of ICCA Congresses over the years illustrates this shift. The inaugural Congress in Rotterdam in 1966 was exclusive, with only 131 participants, predominantly from Western Europe. Fast forward to 2024, the 26th ICCA Congress in Hong Kong attracted over 1,400 registrants from more than 80 countries, reflecting a significant move towards inclusivity and diversity.

Towards a Human-Centered Arbitration:

ICCA President Stanimir Alexandrov’s opening remarks emphasized the Congress's core theme: the influence of human elements—convictions, biases, education, culture, language, and geopolitical background—on international arbitration. The program challenged the traditional belief that arbitration should be purely rational. Instead, it advocated for embracing the subjectivity inherent in human nature.

Stavros Brekoulakis and Anna Howard, in their panel, argued against striving for an unrealistic standard of universal impartiality. They emphasized reasonable expectations from arbitrators based on specific contexts. Kun Fan further elaborated on the contextual variance in expectations surrounding justice and efficiency in arbitration.

David Rivkin advocated for arbitrators to tailor procedures to suit the human needs of parties involved, rather than adhering to rigid templates. This includes considering language barriers, as highlighted by Samaa Haridi and May Tai, who argued for using languages other than English to ensure fairness and understanding in proceedings.

Navigating Human Elements:

The Congress also explored the psychological and cultural dimensions affecting arbitration. Emi Rowse (Igusa) discussed the psychological adversities faced by participants, including stress, anxiety, and cognitive biases. Won Kidane emphasized the profound impact of cultural miscommunication on arbitration proceedings.

Joshua Karton described the process of navigating these human characteristics as a form of “amateur sociology,” where lawyers intuitively assess arbitrators' backgrounds and biases to anticipate outcomes. This requires a deep understanding of human factors beyond legal knowledge.

Transparency emerged as a key solution to navigating human subjectivities. Chris Campbell introduced the concept of “Arbitral Foresight,” where tribunals provide preliminary, anonymous perspectives on disputed issues, enhancing decision-making transparency. Jonathan Wood emphasized international professional qualification standards to ensure a common understanding between arbitrators and parties.

Enhancing Human Capabilities with Technology:

Balancing efficiency with human cognitive limitations was another focal point. Amanda Lee stressed the need to recognize practitioners as primary resources in arbitration, urging for realistic demands on efficiency and timeliness. Technology's role in addressing these challenges was prominently discussed. Winnie Tam illustrated the use of AI to organize information and automate routine tasks, allowing arbitrators to focus on complex judgment calls. Christopher Bogart highlighted predictive analytics to anticipate case outcomes and devise efficient strategies. Richard Susskind’s closing keynote underscored the transformative potential of technology in arbitration. Drawing from his extensive experience with AI, Susskind envisioned rapid technological advancements driving genuine innovation, promising to transform legal work beyond conventional practices.

Conclusion:

The 26th ICCA Congress in Hong Kong highlighted a pivotal shift in international arbitration, emphasizing the importance of human elements in shaping the field. By embracing subjectivity, enhancing inclusivity, and leveraging technology, Congress underscored a holistic approach to arbitration, ensuring it remains relevant and effective in a diverse and evolving global landscape.