Report on the CEPANI Arbitration Academy

On 7 November 2023, 14 December 2023 and 7 March 2024, CEPANI had the pleasure to host the three classes of the CEPANI Arbitration Academy (Edition 2023). More than 40 participants were present to gain more theoretical knowledge and practical skills necessary to pursue a career as arbitration counsel and/or as arbitrator.

For the first class, Mr. Dirk De Meulemeester (Honorary President of CEPANI and President of the CEPANI Academic Committee, DMDB Law) introduced the first topic: “From the arbitral clause to the constitution of the Tribunal”. He also welcomed the two Co-Chairs of the day: Ms. Dorothée Vermeiren (Clifford Chance) and Prof. Benoit Allemeersch (Quinz).

The Co-Chairs addressed various questions of tremendous importance at the beginning of an arbitration procedure: Which cases can be brought to arbitration? In which document can an arbitration clause be drafted? Which parties are bound by this clause?  Institutional or ad hoc arbitration?

The participants learned more about the drafting of an arbitration clause with important tips and tricks (using of the model clause, applicable rules, place of arbitration, choice of law, excluding setting aside proceedings, med-arb clauses etc.). The group also analysed various examples of pathological clauses.

The Co-Chairs explained how to deal with defaulting parties in arbitration at the start of the proceedings.

Moving on to the next topic, the group discussed the dos and don’ts of the Request for Arbitration and the Answer to the Request for Arbitration. The Co-Chairs mentioned the importance of time limits, the date of commencement of the proceedings according to the law and the CEPANI Arbitration Rules, as well as the notification requirements in the contract or in the applicable Rules.

For the final topic of the day, the Co-Chairs explained how the arbitral tribunal is constituted. They presented the appointment process under the CEPANI Arbitration Rules and under the Belgian judicial code.

Ms. Françoise Lefèvre (Françoise Lefèvre Arbitration & ADR) gave (via Video) her best tips to the participants on how to choose an arbitrator. The room discussed optimal methods to select a co-arbitrator and a chair of the arbitral tribunal. Both Co-Chairs gave practical advice in that matter (for instance, how to contact a potential arbitrator).

 The group then discussed the very important topic of the impartiality of the arbitrator and learned more about how (and when) to make a disclosure and avoid a conflict of interest.

The second class took place on 7 March 2024.

The theme “from the Terms of Reference to the Hearing” was introduced by Mr. Dirk De Meulemeester to the participants.

He also presented the Co-Chairs of this class: Prof. Jean-François Tossens (Tossens, Goldman, Gonne) and Ms. Sophie Grémaud (Clyde&Co).

The Co-Chairs of the day started with the first topic, the Terms of Reference. After discussing the purpose of this document, they analyzed the various points to be included in the Terms of Reference and how to draft them (identification of the parties and arbitrators, procedural framework, arbitration clause, seat, applicable rules, confidentiality, requests for relief, amount in dispute, mission of the arbitral tribunal, limitation of liability of the tribunal, etc.). The audience had a lively debate on the role of the tribunal secretary and also shared experience on the possibility to raise new claims after the Terms of Reference have been executed. The group also discussed the purpose and content of the Procedural Order n°1.

The Co-Chairs then explained how to draft the Terms of Reference and the Procedural Order n°1 in practice. The first step is to organise a first Case Management Conference. This is the occasion to raise any procedural issues (for instance, bifurcation) and to try to agree on the timetable.

The next topic addressed was case management. The group discussed document production (the efficiency of this process and the best way to organise it). The Co-Chairs also tackled witness evidence and gave the audience advice on how to choose and prepare a witness and examples from practice. 

Moving on the third topic, the Co-Chairs addressed different situations in which the tribunal has to intervene and find a balance to respect due process. Different procedural incidents can happen during the arbitration proceedings. The Co-Chairs referred to the different styles of arbitrator (asking questions during the hearing, preliminary views, etc.).

The audience also looked into when it would be a good time to try to settle the case or to start a mediation process. The Co-Chairs gave their views on how the tribunal can encourage the parties to negotiate and how they can avoid dilatory tactics. They also explained how to proceed when a settlement is reached during the arbitration process.

Several other potential incidents were cited: what should the tribunal do if an obvious applicable legal rule is not raised by the parties? What is a sealed envelope process? How to proceed with parallel proceedings? The Co-Chairs and the participants shared a lot of examples from their experience in practice.

The third class took place on 14 December 2023. The third theme “from the Hearing to the Award” was introduced by Emma Van Campenhoudt (Director Secretary General of CEPANI) who also introduced the Co-Chairs Prof. Oliver Caprasse (Caprasse Arbitration) and Ms. Vanessa Foncke (Jones Day) for this class.

The first topic analysed by the Co-Chairs was of course the hearing with various questions. Is a hearing necessary in every case?  In what cases is it mandatory? What is the purpose of a hearing? Is it needed if the tribunal is faced with a defaulting party or in case of expedited proceedings? Where should the hearing take place?  How and when to organise a hearing? Is a pre-hearing case management conference important? Who should be present?

Both Co-Chairs replied to these questions with various examples from the practice and gave the audience their views on different tricky situations that can happen when organising a hearing. They recalled that the hearing has to be organised in the most cost-effective way keeping in mind that the parties’ autonomy needs to be preserved. 

The Co-Chairs and the audience further discussed the role of counsel, witnesses and experts during the hearing. Prof. Caprasse and Ms. Foncke explained in detail the process followed for the witness examination and the different techniques that should (or should not) be used. 

The speakers then moved to the second topic, the post-hearing stage, and discussed the post-hearing briefs and how they can be used to the advantage of the client. The costs of the proceedings (arbitration and parties’ costs) also needs to be addressed in the post-hearing briefs. The Co-Chairs gave the definition of the parties’ costs. They also compared the arbitration proceedings and the court proceedings on this topic. They discussed the criteria that the arbitral tribunal may use to decide on the allocation of costs.

The third and last topic covered was the award.

Ms. Foncke and Prof. Caprasse explained the way deliberations are conducted. They then explained the drafting phase of the Award and the mistakes to avoid (for example, checking that every argument raised by the parties has been dealt with). They lastly mentioned the tricky case of the dissenting opinion.

The 2023 edition of the CEPANI Arbitration Academy has been a great success. We thank all of our Co-Chairs for their motivation and their amazing involvement. These three classes gave the opportunity to the participants to learn about the arbitral process in a practical manner with a huge amount of advice from experts. The group was able to debate and share experience on various fascinating topics.

Stay tuned for the next level of the CEPANI Arbitration Academy (Expert level!) that will be organised in the autumn of 2024!