New Zealand born Paul Key QC, an international arbitration specialist at Essex Court Chambers in London, discusses innovation, challenges and new trends in dispute resolution.
What is your role in dispute resolution?
I am a barrister based in London. I work as an advocate and as an arbitrator in international commercial arbitrations and investment treaty arbitrations. I also do court work, largely (though not exclusively) related to arbitral disputes.
The disputes in which I am involved usually have some high-value and cross-border commercial aspect to them. My clients are typically large commercial entities, states and very high net-worth individuals. Like most people who do this work, my work as an advocate involves work for both claimants and respondents. The arbitrations in which I am involved take place in various places around the world (e.g. New York, Geneva, Singapore, Vienna and Sydney) and my work involves frequent travel.
I became interested in dispute resolution for various reasons, including reasons of personal intellectual interest and social justice reasons. I like solving puzzles and dispute resolution always presents a number of puzzles that need to be solved, both in terms of legal issues and in terms of factual issues. However, I also wanted to assist people and entities to achieve justice and to be able to resolve their disputes in a fair and equitable manner.
Which processes do you use most frequently?
My arbitration work tends to follow, or only slightly to modify, a tried-and-tested general structure: one or more rounds of written pleadings, followed by one or more rounds of factual witness statements and expert reports, followed by an oral hearing, followed by a written closing brief.
Of course, each case has its own specific features and there are many cases in which I have been involved where a different structure has been adopted. However, as a general rule, the expectations of the users of the arbitration process and the sums of money involved lead to the same general structure being adopted.
One process which I have seen come into more prominence in the last few years is the use of witness conferencing (also known, in a somewhat colourful metaphor, as ‘hot tubbing’). This technique involves the tribunal and/or counsel questioning two or more witnesses at the same time.
Although it has advantages and disadvantages, I have seen its successful use in appropriate situations in a number of recent arbitrations. Whilst it is clearly not to be used in all situations, it is certainly a useful tool to be considered and a welcome addition to the range of techniques available in international arbitration.
How is the market currently addressing parties’ needs?
Unlike some other forms of dispute resolution, international arbitration involves the parties to the dispute agreeing to arbitration as the process by which their disputes will be resolved. Typically the parties also agree on the arbitral rules which will apply and which will form the basic ‘rules of the game’.
Given that there are various institutions which promote competing arbitral rules and procedural innovations, the starting assumption should be that the parties have chosen the best option available to them – or, at a minimum, the ‘least worst’ option. (Of course, this assumes that the parties have in fact paid attention to the various options on offer and conducted some comparative analysis of the advantages and disadvantages of the options. And clearly this assumption is not always correct.) In general terms, therefore, the arbitral process evolves to meet the needs and desires of the users of the process, namely the parties to the dispute.
The analysis becomes more complicated when one considers the nature and status of treaty arbitration, which many citizens around the world consider to be an assault on democratic control and oversight. If those disgruntled citizens affected by treaty arbitration are understood to be ‘users’ of treaty arbitration, they would clearly disagree with the suggestion that it meets their needs and desires. However, this is usually more an expressed concern about the very existence of treaty arbitration than a commentary on the specific procedures adopted in an individual treaty arbitration.
Of course, improvements can be made, even to international com