At the 41st ICC Institute Annual Conference: Rethinking the Paradigms of International Arbitration, Debevoise & Plimpton LLP partner David W. Rivkin argued that the international arbitration community must use the technology that has been developed during the pandemic to create a new paradigm for international arbitration that will better serve the needs of parties. To this end, Mr. Rivkin unveiled the Town Elder Arbitration Rules, which contemplate a novel decision-tree approach to arbitration, made possible by the enhanced use of technology, involving the resolution of matters on an issue-by-issue basis. These new rules would also work as a supplement and an amendment to the UNCITRAL Arbitration Rules.
Under the proposed Town Elder Rules, named after a paper presented by Mr. Rivkin in 2008 that argued that procedures in each case should be limited only to those that are necessary and appropriate for that case, the parties must provide more detailed initial pleadings so that the arbitral tribunal and the parties better understand the focus of the dispute from the beginning. With that information at hand, the tribunal and the parties shall hold an initial meeting at which the parties’ respective positions are discussed in detail, as well as their business interests and needs for a decision. To facilitate this discussion, the Rules require (as is provided in the Debevoise Arbitration Efficiency Protocol) that each party bring to the meeting a party representative familiar with the dispute. Based on the discussion at this initial meeting, the arbitral tribunal and the parties will then develop a decision tree listing the issues to be determined and the sequence in which these issues will be decided. The tribunal should organize the decision tree so that the most critical issues would be determined first.
The Rules then provide the means to determine each of these issues in the decision tree. The tribunal and the parties will establish the procedure for each step one at a time, with a focus on only the procedure necessary for that particular step. Some steps may not require written submissions; others may not require witnesses, experts or document production. If any document discovery is required, Mr. Rivkin proposed that it be a much more iterative process, with substantially more tribunal involvement, in order to ensure that the search process be more focused and cost effective. Following a hearing on that issue, the tribunal must issue its decision within a month. That decision will then determine which step in the process shall be undertaken. Eventually the case will be decided by a final award in a step that determines an issue that, alone or in conjunction with prior decisions, is dispositive of the case, a settlement by the parties facilitated by the guidance that the tribunal has provided in its step decisions, or a final award dealing with all issues raised. Mr. Rivkin argued that if the decision tree is well designed, most cases will be resolved without the need to determine every issue that was initially presented.
Mr. Rivkin also noted that these procedures can be considered for all arbitrations, not just those where the Town Elder Rules are specifically adopted. He expressed the hope that, as the pandemic wanes, international arbitration does not simply return to the old paradigm but effectively harnesses the new technology to create a slimmer, redesigned process that will encourage more parties to use international arbitration.
The Town Elder Rules may be found here. For questions, suggestions or comments, please reach out to David W. Rivkin.