A Talk on Arbitral Proceedings' with Mr Bart Wasiak

On 14 November 2023, we had the pleasure to welcome back guest speaker and school of law alumni, Mr Bart Wasiak, for an interactive and engaging student-seminar on 'A Talk on Arbitral Proceedings'.

In his presentation, Mr Wasiak gave a detailed overview on the 'arbitral procedure' where parties agree on dispute resolution following mandatory procedural requirements including the New York Convention, Art V(d), UNCITRAL Model Law, Art 19(1) and English Arbitration Act, Sec 34(1). In practise it's rare for parties to agree (Parties discretion) in dispute resolution arbitration and it's clause is one of the provisions. It leads to complications when non-arbitral lawyers draft it (law of arbitration, seat, language etc). In this case the tribunal has the right to decide if no agreement has been reached between the parties. He finally mentioned that arbitral proceedings must see equal footing for fairness to be observed.  This presentation delved into successive themes linked with abritration proceeding. They are as follows:

• Notice of arbitration - Dispute starts with negotiation and there's an attempt to settle with mediation, if there's disagreement then the party's first step is to draft a notice which is the 'first significant step in arbitration proceedings' as per Gary Born. The idea is to setup a basic framework for dispute.
• Procedural Order - Covers applicable arbitration rules and the procedure to be adopted.
• Rights and duties of abritrators - Duty is to treat parties fairly and equally in accordance with IBA rule of Ethics and the ABA/AAA code of Ethics and the IBA Guidelines on Conflicts of Interest.
• Conflict - UNCITRAL rules challenges arbitrator with doubts on impartiality & independence. Arbitrators are overly cautious to not disclose any issues that may arise. Situations of conflicts are Red (certainly exists) Orange (may exist) and Green (no conflict).
• Document production and evidence - IBA document is used which is non-binding in itself; Procedural Order no. 1 will look into IBA rules to resolve ant issues.
• Schedule - Parties are permitted to request documents. The parties may respond to the request voluntarily. If the parties do not do so, the other party may make an application before the tribunal to make an order for disclosure. The tribunals issue Procedural Orders, either granting or denying the specific requests and providing summary explanations for its rulings.
• Interim Measures - Maintain or restore the status quo pending determination of the dispute. In practice providing security for costs, respondent defending itself probably winning and the incurring costs (fees) may be awarded by the tribunal. Tribunal orders the claimant to give some money as a security where costs can be withdrawn
• Enforcement of English Law - Part has to comply with the order made by the tribunal Section 42 of the Arbitration Act 1996
• Globalization of arbitration - Arbitration is governed largely by national arbitration law, but not by local rules of civil procedure. However, national law has less of a bearing on the actual arbitration proceedings. The institutional and international rules applicable demonstrate that there is a general harmonization of procedural rules applicable to arbitrations, regardless of the seat or other national laws applicable.

Bio: Mr Bart Wasiak, Senior Associate, Arnold & Porter and UNCLC Associate Practitioner  

Mr Bart Wasiak is a Senior Associate at Arnold & Porter in London and an Associate Practitioner at the University of Nottingham Commercial Law Centre. He is also an alumni of the School of Law, University of Nottingham. Bart’s practice focuses on representing sovereign States and private-sector clients in high-stakes international arbitration proceedings. To date, he has served as counsel in more than 20 investment-treaty arbitrations under the ICSID and UNCITRAL arbitration rules. He has advised clients in relation to a broad range of disputes, including in the energy, banking, mining and shipping sectors. Mr. Wasiak is a Co-Chair of the ABA International Arbitration Committee. He frequently speaks and writes on international law subjects, and is recognised for his expertise in both public international law and international arbitration.