Partner, LMBD
The 3 December 2024 session of the CEPANI Arbitration Academy provided a masterclass on handling intricate arbitration scenarios, led by two distinguished experts: Vanessa Foncke (partner in the Global Disputes practice of Jones Day) and Giulio Palermo (partner in Archipel). This session offered invaluable insights into the nuanced and multifaceted world of complex arbitration, addressing the extension of arbitration agreements to non-signatories and the intricacies of multiparty and multicontract disputes.
Exploring the extension of arbitration agreements to non-signatories
Giulio Palermo’s presentation delved deep into the often overlooked complexities of extending arbitration agreements to non-signatories. With precision and clarity, he explored the legal doctrines and practical mechanisms underpinning extension (whether voluntary of forced as in sports arbitration), ensuring the audience grasped both theoretical and pragmatic aspects.
Key highlights included:
Legal Doctrines: From agency and implied consent to the veil-piercing principle and estoppel, he elucidated the pathways through which non-signatories can be bound by arbitration agreements.
Practical Examples: Illustrative scenarios brought the concepts to life, offering attendees actionable insights into scenarios like corporate groups and third-party beneficiaries.
Amicus Curiae and Third-Party Funding: His exploration of modern arbitration dynamics, such as amicus curiae participation and third-party funding (which may influence the conduct and the outcome of an arbitration without these actors being a party to it), emphasized how these mechanisms enhance access to, and the efficiency of, arbitration proceedings, while also introducing regulatory and ethical considerations on transparency.
Navigating Multiparty and Multicontract Arbitration
Building on the foundation laid out by Mr. Palermo, the second session led by Vanessa Foncke tackled the intricate web of multiparty and multicontract arbitration, focusing on aligning efficiency with consensualism in complex transactions. This insightful presentation broke down the procedural and strategic considerations necessary to consolidate multiple parties and agreements within a single arbitration.
Key topics included:
Frameworks and Options: A review of ad hoc and institutional arbitration solutions, including pivotal rules from CEPANI and UNCITRAL.
Mechanisms for Complexity: Techniques like joinder, intervention, and consolidation were dissected, highlighting how institutional rules accommodate intertwined disputes.
Practical Implications: Topics such as procedural and drafting best practices, jurisdictional considerations, appointment challenges, and cross-claim management ensured a pragmatic and actionable approach for attendees. Ms. Foncke also referred to the new C-Build section of CEPANI and related model provisions.
Class-Action-Like Arbitration: A brief discussion on collective arbitration offered a forward-thinking perspective on balancing collective redress (economic benefits and avoiding irreconcilable awards) with consent, confidentiality and efficiency considerations.
Ms. Foncke’s presentation demonstrated an acute awareness of modern commercial realities, equipping participants with the tools and strategies to effectively navigate the challenges of multiparty disputes.
Tools to manage complex situations
The experts then examined a draft procedural order. They explored a number of possible provisions, sharing their experience and tips, both as arbitrators and counsel, on how to deal with sophisticated opponents and complex situations. Their extensive international experience allowed in-depth discussions and comparison between different jurisdictions, cultures and arbitral institutions. The audience could ask many questions, interact, share doubts and experience to enrich the debate, particularly on preventing procedural abuses, cross-examining (expert or factual) witnesses, producing (documentary) evidence, or identifying and avoiding biases.
Conclusion - Showcasing the CEPANI Arbitration Academy’s Excellence
This session exemplifies the CEPANI Arbitration Academy’s commitment to fostering excellence in arbitration practice. Through their thought-provoking and professionally enriching presentations, Ms. Foncke and Mr. Palermo provided clear guidance for practitioners dealing with increasingly complex arbitration scenarios.
