International Commercial Arbitration: The Edinburgh Centre for Commercial Law and Hogan Lovells

Members of the Edinburgh Centre for Commercial Law were delighted to welcome Michael Davison from Hogan Lovells as a speaker this week.  Hogan Lovells offer an internship scheme as a prize for the two top students in the International Commercial Arbitration Masters course (details of the prize available from the course organiser, Dr Simone Lamont-Black).  Michael has become a great friend and colleague having delivered lectures here for the last three years and acted as a speaker at an Arbitration Conference held at the Law School in June 2010.

Undaunted by fog which closed London City Airport, according to Michael, "nothing would stop this Edinburgh boy from coming home."  This involved a lengthy and unplanned journey by taxi across London and by train to Edinburgh.  He arrived unruffled, even in the face of a front row comprising leading lights of the Scottish arbitration world, including (in the order in which they were sitting): Iain Murray, Lord Dervaird; Brandon Malone, McClure Naismith; Andrew MacKenzie, Scottish Arbitration Centre; Hew Dundas, Chartered Arbitrator; and David Bartos, advocate; Hew and David being co-authors (together with Professor Fraser Davidson) of the first commentary on the Arbitration (Scotland) Act 2010.  To raise the pressure even more, the Lord President had joined the occupants of the front row.

Michael provided a thorough and thought-provoking analysis of the new ICC Rules of Arbitration.  His perspective as a practitioner was highly valuable, particularly for the many students of the LLM class in the audience.  A particular focus was the scheme for appointment of an Emergency Arbitrator (Article 29(1)).  Arbitration is often compared adversely with litigation, and particularly by contrasting arbitration with the speed with which injunctions or interdicts can be obtained.  The emergency arbitrator scheme goes some way towards narrowing this gap.  The President of the ICC Court appoints an emergency arbitrator usually within two days of the Secretariat's receipt of the application (Appendix V, Article 2(1)).  Given the fact that the parties to the dispute cannot choose the identity of the arbitrator, no doubt the courts will remain an attractive route to those who value the identity of the decision-maker highly. 

Listeners noted the broad discretion surrounding the manner in which the Emergency Arbitrator conducts proceedings (Appendix V, Article 5(2)).  The emergency arbitrator issues an order, not an award (Appendix V, Article 6(4)).  His or her order may be modified, terminated, or annulled by the arbitral tribunal (Article 29(3)).  Listeners also noted the eye-watering 40,000 US dollars required to be paid by the applicant up front (Appendix V, Article 7(1)). Michael provided some thought-provoking comments on the lack of sanctions for failing to comply with an order.  This may be a significant weakness, particularly given that an emergency arbitrator cannot later act as an arbitrator in the same dispute (Appendix V, Article 2(6).)

In an extremely comprehensive paper, Michael took us through questions of jurisdiction and joinder, multiple claims, and multiple contracts.  Of particular interest are the case management rules.  All of this was presented against the backdrop of Michael's extensive practical experience, which he presented in a highly amusing way.  The arbitration world, according to Michael, is peopled with larger-than-life characters, from shipping magnates to Russian oligarchs.  All in all, the lecture was both highly informative and highly amusing (a rare combination indeed).

We in the Centre for Commercial Law would like to express our thanks for the contribution which Michael and his colleagues at Hogan Lovells have made over the last three years.  There is surely no better advert for a career in arbitration than Michael.  He, and his fellow practitioners who contribute to the teaching of International Commercial Arbitration at Edinburgh Law School (many of the occupants of the front row) provide the practical angle on the subject which is so highly valued by our Masters students.  We hope that our relationship with Hogan Lovells and indeed with our friendly practitioners will continue to bear fruit, particularly as the Arbitration (Scotland) Act 2010 becomes established.           

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