ARBITRATION AGREEMENT, JURISDICTION AND SEAT

1 Jurisdiction: Are unilateral or asymmetric dispute resolution clauses valid? The recent decision of the French Cour
de Cassation has decided that this type of clause is invalid. Do unilateral arbitration clauses have a future?

2 Should parties be specifying a governing law for their arbitration agreements? Always, or only in certain
circumstances? If only in certain circumstances, which ones?

3 Party A commences an arbitration in London pursuant to an alleged arbitration agreement. Party B participates in
the arbitration but challenges the jurisdiction of the Tribunal on the basis that it did not agree to arbitrate in
London but agreed to arbitrate in New York in an otherwise near identical agreement. Party A applies for the
existing London Tribunal to transform into a New York tribunal despite the objections of Party B, whose position
is that the existing tribunal can only decide it has no jurisdiction. English law does not allow a tribunal to be
peripatetic and move seats (without the consent of the parties). Does any jurisdiction allow this?

4 One-way arbitration clauses – great idea or terrible mistake?

5 Following Sulamerica CIA Nacional de Seguros SA and others v Enesa Engenharia SA and others [2012] EWCA Civ
638 should arbitration agreements contain their own governing law clause? Are there any plans for the LCIA to
change its precedent clause?

6 Asymmetrical (unilateral) arbitration clauses following Ms X v Banque Privée Edmond de Rothschild and LLC Sony
Ericsson Mobile Communications RUS v CJSC Russkaya Telefonnaya Kompaniya – are they worth the risk?
Is anyone still using them?

7 Following U&M Mining Zambia Ltd v Konkola Copper Mines Plc [2013] EWHC 260 (Comm), if and to what extent
should the English court review the actions of a foreign court apparently in support of an English arbitration?

8 Agents for process – are they needed for arbitration agreements?

9 Dispute escalation clauses: a hindrance or help? Has any tribunal refused jurisdiction for non-compliance?

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10 Tailored arbitration clauses. What is the current trend, and is keeping it simple the best policy?

ARBITRAL TRIBUNAL

11 The parties agree that their nominated arbitrators will attempt to agree on a chairman. They confer, and a
number of names are proposed by each party, but no agreement is reached. It is therefore left to the institution
to choose the chairman. One party writes to the institution, giving the names of all the potential arbitrators
canvassed but not agreed upon, and asks that the institution does not appoint any of them.

Should the institution accede to this request?

12 Should the LCIA Rules be amended to include a directions hearing after the Tribunal is constituted ‐ would it be
more efficient and effective if the Rules expressly recognised the options to serve witness evidence and/or expert
evidence with pleadings and the potential need for disclosure before pleadings are finalised? How best could this
be done ‐ an option for Tribunal to modify the current pleadings timetable or a formal separate directions hearing
stage pre pleadings?

How should arbitrators respond to attempts to rely upon "mandatory" laws other than the lex contractus which
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purport to invalidate or render nugatory the lex contractus? Would failure to consider and/or apply such laws be
in breach of a broadly worded arbitration clause such as the LCIA recommended clauses?

Emergency arbitrators – how useful are they? In cases where urgent relief is required, how does the option of an
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emergency arbitrator under other institutional rules compare to the LCIA approach of expedited formation of the
tribunal?

15 It is often said that arbitral tribunals do not have "coercive powers" to enforce their own decisions. Is that really
so? And if it is, shouldn't it be changed?

16 Unreasonable demands by members of the Tribunal (suites in 5 star hotels, first class flights etc.). Can the parties
refuse without damaging their relationship with the Tribunal?

17 Can the tribunal do anything when faced with counsel who is not competent to act? Should the tribunal do
anything in that situation?

18 When is it appropriate for the tribunal to step in and limit parties' freedom to determine the arbitral procedure
by agreement?

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19 ToR clauses giving the tribunal the power to veto the parties' choice of counsel - a necessary interference or a
step too far?

20 The proposed changes to the HKIAC Rules include a provision giving the arbitral tribunal an express power to
exclude the participation of a party's counsel or other representatives if the conduct or appointment of the
representative would put at risk the fair and expeditious conduct of the arbitration.
Is this a helpful provision?

21 The expert arbitrator: How do you deal with the situation where only one of three arbitrators is an expert in a
field relevant to the dispute (especially where that arbitrator appears to be biased towards the party that
appointed him…)? Would it be conceivable to agree that the "expert arbitrator" provides a separate opinion on
technical matters (and if so, at what stage of the proceedings)? Should you request that the tribunal appoint an
independent expert?

PRACTICE AND PROCEDURE

22 Document Production:

(a) The Burden of Proof

If a tribunal decides in favour of the requesting party to produce certain documents relating to issues for which
the other party carries the burden of proof and for which evidence has already been submitted by that party,
does the tribunal prejudge the evidence submitted?

(b) § 1782
What is the current experience with 28 USC § 1782? Do tribunals freely accept evidence obtained through such
proceedings?

23 The Leveson statutory arbitration scheme - a good idea on paper, but is it workable in practice?

24 Development of Arbitration: Is enough being done by practitioners (including both counsel and arbitrators) to
ensure that arbitration continues to develop as a form of international dispute resolution? If not, what more
could be done to ensure that arbitration doesn’t stagnate?

25 Interim Measures: When is it possible to obtain interim relief under LCIA Rule 25.1(c)/how receptive are
Tribunals to applications under that rule? (25.1(c): “The Arbitral Tribunal shall have the power, unless otherwise
agreed by the parties in writing, on the application of any party: … (c) to order on a provisional basis, subject to
final determination in an award, any relief which the Arbitral Tribunal would have power to grant in an award,
including a provisional order for the payment of money or the disposition of property as between any parties.”)

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26 Translations: How should a tribunal deal with a party that refuses to provide translations or refuses to provide
acceptable translations?

27 In January, the IBA circulated some draft Guidelines on Party Representation in International Arbitration, with the
idea being that they would be incorporated into the parties' arbitration agreement, or into a procedural order.
The Guidelines are careful to state that whether the tribunal will have the authority to regulate the conduct of
counsel will depend on the circumstances, including the arbitration agreement, the relevant procedural rules and
the lex situs. But are there any reasonably likely circumstances in which the tribunal will have such authority?

28 The standard rubric seems increasingly to be the tribunal will apply the IBA Rules on the Taking of Evidence "as
guidelines". Does this provide any benefit to the parties? Should we now have enough confidence in them to
recommend to parties that they be applied as "rules"?

29 Are international arbitrations less likely to settle than litigation? If so why? What can be done to increase the
possibility of commercial settlements? How should the LCIA react to the formal attempts that have been made to
increase the possibility of commercial settlements e.g. The CEDR Commission on Settlement in International
Arbitration?

To what extent are the parties and the Tribunal bound by the parties’ pleadings? If a party fails to avail itself of an
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important factor argument should the tribunal raise the question itself?

What litigation privilege (as opposed to attorney‐client/legal advice privilege) rules should a Tribunal/counsel
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apply? Given that litigation privilege arises only in contemplation of the arbitration why not apply the rules of the
arbitral seat where it has been agreed to in the arbitration agreement?

Should common list of issues be deployed to help manage proceedings, and if so, when should they best be used?
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Should factual witnesses be paid and, if so, what limitations should be imposed? What about circumstances
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where the distinction between a factual and expert witness is blurred?

34 Are post-hearing submissions useful or do they add unnecessary delay and cost to the proceedings for no clear
benefit? If useful, what sort of guidance should the Tribunal provide regarding the appropriate format and
substantive content?

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35 Art. 3(9) of the IBA Rules on the Taking of Evidence deals with the production of documents from third parties in
the framework of an ongoing arbitration. The wording is a bit ambiguous, as it first states that a party in need of
such discovery "may" seek leave from the arbitral tribunal to take the necessary steps itself, but then says that
the arbitral tribunal "shall authorize" such party to take the necessary steps.

Any practical experiences? Would you seek prior authorization from the tribunal?

36 Rules on the conduct of Court proceedings in various jurisdictions have become increasingly focused on trying to
promote ADR or early settlement without full trial, particularly so in England & Wales. Do people feel that the
arbitration process (and arbitration practitioners) place sufficient weight on the possibility of settling a case or
should more be done to encourage this? Is it even something to be encouraged?

37 Clients can become frustrated by the length of arbitration proceedings and the length of time that it can take to
actually obtain the Award. What is the best way to meet these concerns, particularly where the Tribunal is taking
a long time as opposed to the parties?

38 With the continuing threat of a eurozone debt crisis, how well suited is arbitration to resolving complex cross-
border financial disputes and how might the process evolve to make it more attractive for market participants in
the industry?

39 At a recent seminar, Toby Landau QC stated that there is “not just the mafia but a smaller, inner pool of mafia” in
international arbitration. Is this true? If so, is it a problem for the arbitral community? What, if anything, should
be done about it?

40 Coaching witnesses and the soon-to-be-published IBA Guidelines on Counsel Conduct: Have we missed the bus?

41 Developing a career in international arbitration: How important is it to specialise in arbitration as opposed to

coming from a general litigation background?

42 Should there be an obligation on the parties to disclose the involvement of a third party funder/ATE insurer to the
other side and/or the tribunal?

43 Does a party have a right to know the identity of all members of the counsel team that are representing its
opponent? If, for example, a party appoints new counsel after commencement of proceedings (for instance, a
barrister or trial lawyer is instructed for the substantive hearing) does that party have an obligation to
communicate the identity of that new counsel or can it keep that information “up its sleeve” until shortly before
the hearing?

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44 Following a recent bad experience, can anyone reaffirm my faith in the merits of non-lawyer arbitrators?

45 What is a tribunal to do when faced with a party that seeks to adduce a significant number of new documents on
the eve of a hearing? In the words of an arbitrator I was before recently, is the eleventh-hour production of
documents simply “what happens in international arbitration”?

46 Younger practitioners seeking their first appointment as arbitrator. Is a move overseas the answer?

47 Generalist vs specialist. Is it advisable to specialise in international arbitration from an early stage of a young
lawyer’s career, or is there an advantage in an ongoing exposure to other practice areas, including litigation
and/or regulatory work?

48 Uncontested hearings – should tribunals give advance notice of areas of deficiency/concern?

49 Paperless hearings – people’s experiences.

50 Should tribunals adopt a more restrictive or more expansive approach to interpretation of the provisions of the
IBA Rules concerning document production? On a related note, in assessing the likely materiality of a request to
the outcome of the dispute, to what extent can and should tribunals seek to engage at an early stage with the
issues in the case?

51 Has the line between legal expert witness testimony and advocacy in international arbitration become blurred?
What are the challenges posed by this and what are the solutions?

52 How should the Supreme Court decide UST Kamenogorsk?

53 Re-direct, re-cross, re-re-direct...: where should the tribunal draw the line?

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54 In international arbitration, when (if ever) should issues of law be addressed by expert evidence rather than
submissions? Should a Tribunal indicate at the first procedural hearing whether they would like issues of law to
be addressed by expert evidence or submission, or is this an issue which should be left to the parties?

55 Should page limits be set for Memorials to reduce costs and encourage parties to concentrate their submissions
on the key issues?

56 Is it appropriate to use US qualified counsel to "prepare" witnesses to give evidence in arbitrations seated in
London governed by English law (as US qualified lawyers are not subject to the same professional duties as
English lawyers regarding witness preparation)?

57 Is it possible for new claims to be raised between the parties after the Terms of Reference are signed or approved
by the Arbitral Court provided that they have actually arisen at a later stage or even after the award has been
made?

58 Conspicuous by their absence: How do you deal with the situation where the opposing party has failed to call
important fact witnesses, although it could easily have done so (e.g. those persons are its employees)? What
inferences (if any) can you ask the arbitral tribunal to draw simply from the fact that the witnesses weren't
called?

ORDERS, AWARDS AND ENFORCEMENT

59 How long is too long for a Tribunal to render an Award? What are the best steps to ensuring a timely award?

60 Has anyone ever sought to enforce a tribunal-ordered interim measure in a state court, either at the seat of the
arbitration or, more interestingly, abroad?

61 Will an English court grant an anti-suit injunction in a case where, say, the seat of the arbitration is in Switzerland,
the law applicable to the merits is English law, court proceedings have been commenced in Brazil and there is no
connection to England other than the law applicable to the merits?

62 What is the "arbitrator's duty to render an enforceable award"? Where does it come from? What does it mean?
And is it (ab)used to paralyze Arbitral Tribunal's too often?

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63 Dissenting Awards: A useful contribution to the development of jurisprudence? A booby prize for the loser? Or a
clear display of partisanship?

64 Summary judgment in international arbitration: Is there a role for it? Is determination of preliminary issues not
sufficient?

65 Can summary judgment and international arbitration be reconciled? What test should be applied by the tribunal?
The need for such a procedure to be available in international arbitration has been expressed in many instances
in the past, including by the financial services industry. A provision for early disposition has been included in the
recently launched 'Paris Arbitration Rules'.

66 When seeking to enforce an arbitration award against a party in a jurisdiction other than that of the seat of the
arbitration, to what extent have delegates found it more effective to enforce the award itself, or to convert the
award to a judgment in the seat of the arbitration and then take this to the jurisdiction of intended enforcement?
I am thinking particularly of the seeking to enforce a non-US award in the US, but are there other jurisdictions
where this may be a significant consideration when advising the client?

67 Enforcement. What is to be done where the counterparty's assets are held in a state which is not a party to the
New York Convention?

68 What will be the consequences if the ‘losing’ party to an arbitration decides to ‘disappear’ or sell its assets or
even goes insolvent after the award has been made but before the enforcement stage?

69 What can we learn from the ASES v Delkor UK Limited case?

COSTS

70 Should the conduct of parties before or during the proceedings have an impact on costs?

What is the current experience Calderbank offers in international arbitrations?

71 In light of the Jackson Reforms and cost budgeting will English seated tribunals start to exercise their power under
s.65 of the Arbitration Act?

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72 Should arbitral Tribunals adopt the approach of the English courts in assessing costs of each application, or should
the typical practice of deferring it all to the end continue?

73 How detailed should a statement of costs be? Is there a need to provide supporting documents along with the
statement of costs?

74 In light of the new cost budgeting regime in the High Court (albeit not in the Commercial Court) should arbitral
institutions follow suit and give tribunals the power to request budgets from the parties, and then to limit
recovery of costs to the level of such budgets?

75 Third party funders – should there be a rule that they must be disclosed and/or potentially subject to any adverse
costs order?

76 Should a request for security for costs made in the late stages of proceedings (e.g. prior to the hearing on the
merits) ever be granted?