Insightful Arbitration Days Took Place in Kiev

Kiev Arbitration Days have traditionally been a rendez-vous for envisioning the future of arbitration, based on today’s developments.

KAD 2016, organised by the Ukrainian Bar Association, was no different, bringing together renowned dispute resolution practitioners and prominent arbitration experts to discuss issues and perspectives on international arbitration. As Markiyan Kliuchkovskyi (Member of the Organising Committee and Partner at EPAP Ukraine), aptly stressed in his closing remarks: “Arbitration is not going anywwhere, and so the KAD tradition is not going away and will live on”.

The closing speech marked the end of an eventful day, full of hot topics and in-depth discussion.

Kicking off the event, Irina Nazarova (Conference Programme Coordinator, Managing Partner at ENGARDE Attorneys at Law) greeted the guests with a warm welcoming speech and passed the floor to the special guest – Oleksiy Filatov, Deputy Head of Presidential Administration of Ukraine. Mr Filatov noted that Ukraine is heading down the road of reforming its ADR legislation, and that this is a one-way street. The Parliament is already considering amendments to Ukrainian legislation, simplifying mediation and arbitration procedures.

Overregulation and soft law: which is the right path?

KAD lived up to its expectations right from the first session. In a heated discussion, Nata Ghibradze (Associate at Hogan Lovells, Germany), Anton Baier (President at the VIAC) and Volodymyr Yaremko (Counsel at Spenser & Kauffmann, Ukraine) presented their views on the necessary extent of regulation over international arbitration and to what degree arbitral tribunals should take soft law into consideration when rendering an award.

Beata Gessel-Kalinowska vel Kalisz (Managing Partner at GESSE Attorneys at Law, Poland) moderated the session. She made an interesting comment on how the Lewiatan Court of Arbitration Rules implement conflict of interest rules.

The presentations and positions of speakers proved, at least to some extent, the existence of a clash of generations in international arbitration. Younger presenters seek deregulation and extensive application of soft law, while the more experienced ones criticise the “jungle of soft law” and uncertainty stemming from lesser regulation.

Your client just might be your best enemy

In the second session, the differences in opinions appeared not as stark as in the first one, though with just as interesting a discussion. The speakers shared their experience on client-counsel relationships, and how the client may become your best enemy. Alexander Milner (Arbitrator at Fountain Court Chambers, UK) gave an interesting speech on how to prepare your client’s witness for a cross-examination so that it will not turn into a disaster.

As an example he used the case of Berezovsky v Abramovich, where Mr Berezovksy ruined his case because he was exceptionally bad at the cross-examination, which led Gloster J to declare Mr Berezovsky to not be a credible witness. Olena Perepelynska (Partner and Head of CIS Arbitration Practice at Integrites, Ukraine) then took to the floor and spoke on the problems of having a government as a client, in particular issues related to the procurement of legal services agreements.

Maksym Kodunov (Head of International Disputes at the Bureau of the Ministry of Justice of Ukraine) and Kaj Hober (Chair of the Arbitration Institute at the SCC) then delivered keynote speeches on recent trends in investor-state arbitrations and overall converging trends in international arbitration.

The “old hand”, the “star” and the “newcomer”

The heat came back on when speakers of the third session discussed issues of trust, institutional appointments and closed lists of institutions. In an interesting presentation, James Freeman (Counsel at Allen & Overy LLP, UK) compared an arbitral tribunal to the Ukrainian National Football Team: in both there might be the “old hand”, the “star” and the “newcomer’. Mr Freeman stressed that having only one of the types will always get problematic, and that the aim of the parties should remain to balance out the tribunal.

The result shall speak for itself

At the very end, it all came down to discussing the ultimate goal – getting the result for your client. In the fourth and last session, aptly called “Show me the money”, lawyers presented their views on enforcement and collection options that, in their opinion, would yield the best results.

The session also involved a presentation on issues related to third-party funding. Steven Jagusch (Partner at Quinn Emanuel Urquhart & Sullivan, UK) shared with the audience the best ways of avoiding a security for costs award against your client in cases where the client’s claim is funded by a third party.

The last presentation of the event became truly original. Laura Hardin (Managing Director at Alvarez & Marsal, U.S.) teamed up with Joachim Knoll (Partner at Lalive, Switzerland) to simulate the process of instructing a quantum expert by legal counsel. In a very entertaining, but nevertheless insightful, mock-preparation, Ms Hardin and Mr Knoll highlighted the key issues and problems of preparing experts for cross-examination.

The culmination of this wonderful arbitration event took place in the magnificent Metropolitan Residence of the Sofiya Kyivska Museum, beside the 1000-year old cathedral.

KAD 2016 proved, above anything else, insightful and inspirational. As a representative of the younger generation of arbitration practitioners, I must say that the knowledge and experience shared by the renowned arbitration counsel and arbitrators with their younger peers suffices to give rise to many new “stars of arbitration”.

Vladyslav Danyleiko

Integrities law firm