Lessons Learned (US and UK): Key Elements to Encourage Private Sector Participation in Domestic and International Arbitration Proceedings Cyrus Benson 27 March 2014: International Conference on Commercial Arbitration in Mongolia

The Question: How to get domestic and international disputants to use or at least consider using arbitration 2

Top Five Necessary Elements 1 Provide certainty/predictability 2 Protect arbitration’s advantages 3 Promote awareness 4 Foster comfort level of necessary players 5 Create convenience 3

Provide Certainty/Predictability Judicial Support (free of improper influence) Uphold agreements to arbitrate Enforce awardsAct in aid of arbitration Legislative Support Clear frameworkReduce potential judicial encroachment Favorable National Policies Pro-arbitrationAnti-judicial intervention 4

Protect Arbitration’s Advantages Neutrality Ensure independent/impartial arbitratorsConsistent un-biased appointment process for arbitrators Quality of adjudication Experienced arbitrators across a range of industry sectors and legal systems Power to select decision makers knowledgeable of type of dispute/sector Efficiency Eliminate unnecessary cost and delay Flexibility Parties/Arbitrators/Institutions able to fashion method of dispute resolution to fit the needs to the case 5

Promote Awareness UK London Court of Arbitration (LCIA) Education Chartered Institute of Arbitrators Promotional activities: conferences, seminars, etc. US AAA: American Arbitration Association (1926) ICC (Case Management Team 2013); CDR; etc. Education Promotional activities: conferences, seminars, etc. 6

Foster Comfort Level of Necessary Players Judges that are familiar with laws and process UK: Commercial Court US: Guide on International Commercial Arbitration for US Federal Judges (July 2013) US: New New York specialized court Arbitrators who are knowledgeable, impartial and neutral EducateTraining programsGain experience Legal practitioners who are familiar with the process EducatePromote through conferences, seminars, etc. Awareness of options, help mold them to clients’ needs Businesses that are familiar with the process EducatePromote through conferences, seminars, etc. 7

Create Convenience UK Commercial Courts Hearing centers (IDRC) Support services Infrastructure Variety of arbitral institutions: LMAA, LCIA, etc. US Variety of arbitral institutions: AAA, ISCID, ICC, FINRA, etc. Hearing centers (NYIAC: 2013) Support services: translation, transcripts… Proximity New York: International Arbitration Judge (2013) 8

Top Five Elements To Avoid 1 Judicial hostility/interference 2 Legislative aggression/backlash 3 Encroachment into arbitral process/party choice 4 [Mis]using public policy or other exceptions 5 National bias/cultural inflexibility 9

Judicial Hostility/Interference UK Historically: Judges reluctant to surrender jurisdiction 1854: Common Law Procedure Act : Arbitration Act (amended: 1950, 1975, 1979 and 1996) 1975: New York Convention US Historically: Vynior doctrine adopted from UK 1925: Federal Arbitration Act 1970: New York Convention incorporated into law Continuing process of educating judges 10

Legislative Aggression/Backlash Elsewhere Denouncing Bilateral Investment Treaties (e.g., Indonesia canceling Dutch BIT earlier this month) US Proposed Fairness in Arbitration Act; California disclosure requirements UK Contract Sanctions Consultation 11

Encroachment into Arbitral Process Elsewhere Interlocutory appeals on procedural matters Terminating arbitrations for timeliness Suits against arbitral institutions, arbitrators US “Arbitrability”Supreme Court review in BG v. Argentina UK European Law 12

[Mis]using Public Policy or Other Exceptions UK Illegality (Soleminany) Appeal questions of English law US Forum Non Conveniens Question of “manifest disregard” 13

National Bias/Cultural inflexibility Promote diversity of arbitrators Promoting diversity and neutrality Consider appointing foreign nationals with international parties Open pool of arbitrators Educate potential arbitratorsWork to attract international arbitrators Transparent process of electing arbitrators to institutional panels Foster choices in institutions/rules Identify areas where arbitration can grow and consider whether special Rules/institutions could be relevant 14

Conclusion Moving forward There is a wealth of experience around the world that informs and facilitates the drafting of good, pro-arbitration legislation. The UK and US have been important contributors. Today’s challenge lies in implementing such legislation and creating arbitral institutions and practices that gain the confidence of potential users. Meeting that challenge requires a long-term commitment, resources and unwavering political will. 15

Cyrus Benson Gibson, Dunn & Crutcher LLP Telephone House 2-4 Temple Avenue, London, EC4Y 0HB Tel +44 (0) Fax +44 (0)