Mr. Ben Giaretta, welcome to the Arbitration Workshop! We appreciate that you have given us this opportunity to share your valuable perspective on arbitration with our readers.
Q1. Before we delve in, may we request you to kindly introduce yourself and tell us about the origins of your interest in the field of Commercial Arbitration?
A1. I am a Partner and the Co-Head of International Arbitration at Fox Williams LLP. I was formerly the Asia Head of Arbitration at Ashurst LLP, based in Singapore. I am a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators (CIArb), and the Chair of the London Branch of the CIArb. I am on the panels of arbitrators of various arbitral institutions throughout the world including the HKIAC, the SIAC and the SCCA. I have been working in international arbitration for around 20 years, having started when I was a newly qualified lawyer in Ashurst in London, and then becoming solely focussed on this area when I moved to Singapore. Also, when I was a junior lawyer, I studied for the Postgraduate Diploma in Arbitration at the Queen Mary University of London under Professor Julian Lew and Professor Loukas Mistelis. I have been involved in arbitration in many industry sectors, but my main experience has been in energy, infrastructure and technology.
Q2. We understand that you have had a diverse and unique experience working across jurisdictions- Africa, Asia-Pacific, Europe, Gulf Regions. In your opinion, can you identify some of your experiences in the jurisdictions described above, which you think are unique to the field of arbitration? Further, what significant differences did you notice in the practice of arbitration in these jurisdictions? How do you think these differences should be reconciled to make different jurisdictions more compatible with international arbitration?
A2. This is not an easy question to answer because I have seen a range of approaches to arbitration in each of these regions. For example, in several countries, I have seen approaches which one might say are identical to international practice in other parts of the world, but I have also seen approaches which are very similar to the behaviours in the local courts. I have also seen individual arbitration practitioners behave one way in one context, and a different way in another context. I think it is very difficult to generalise, therefore - and very difficult to reconcile the various practices. I am also not making a value judgment here about these approaches. For example, some of the behaviours that one might associate more with national court practice have turned out, in context, to be much more effective than approaches that one would typically associate with international arbitration. It is this complexity, variety and flexibility that is a great strength of arbitration. Indeed, perhaps I might say that the way for arbitration practitioners to be true to the spirit of international arbitration is not to default to “typical” behaviours, whatever those might be, but instead, they should think carefully about what works in the particular case – which may include behaviours that one might normally see in a national court.
Q3. As we know, your involvement in sectoral arbitration covers a plethora of sectors- energy, natural resources, construction, commodities, to name a few. Most of these sectors require comprehensive technical and sector-specific knowledge. Do you think Artificial Intelligence could simplify these technical arbitrations?
A3. This depends on what artificial intelligence you are referring to. I am not aware at present of any AI that can do this – i.e. effectively replace the explanations of technical areas that are provided by expert witnesses. I wouldn’t rule out such AI being developed in the future, of course, but the main form of AI that I think might be developed and become popular is a tool that analyses and organises the issues and evidence in an arbitration case generally. At present, we see a considerable amount and variety of issues and evidence, and I believe there are substantial efficiencies to be found in developing software that would allow the people involved in an arbitration to handle this material easily and effectively (this could perhaps be built into a platform used by an arbitral institution). At a simple level, for example, I can imagine that the software could generate at a touch of a button all the evidence that relates to a particular issue and display it in a manner in which it can be easily reviewed. I don’t see such AI replacing the need for human intervention and explanation, however. If there is a technical issue about the construction of a building, for example, the AI that I have described might make the process of handling the evidence more straightforward but I envisage that there will still be a need for a human expert or advocate to explain it to the tribunal, and to interact with the tribunal, answering any questions that arise. This would also preserve the flexibility that I have referred to in my answer to the previous question.
Q4. Energy is a sector that you have extensively worked in. What are your views on the arbitration of climate disputes? Do you feel that we need a new regime for arbitrating environment disputes, as many have argued in the current literature?
A4. This depends of course on what type of disputes we are talking about. Commercial disputes that involve environmental obligations contained in contracts might readily be referred to arbitration. But when we are talking about environmental obligations contained in statutes or environmental impacts that have a wide international element, then I am not convinced that a forum such as arbitration which has been developed for private disputes is entirely adequate to handle these issues. Of course, I am aware that the same debate has been raging in the field of investment treaty arbitration for many years now and the fundamental point is that no good alternative to arbitration has yet been developed. But perhaps efforts might be put in (by the United Nations, for example) to create a forum that would properly address such matters.
Q5. You’ve worked on disputes in India and have also adjudicated on disputes involving Indian parties- do you see India becoming a global hub of arbitration in the next decade? What do you think are issues that may cause an impediment to it?
A5. There is an important assumption built into this question that needs to be examined carefully. What sort of “global hub” does India want to become? There are variations here. For example, I am aware that a considerable investment of time and money is being made in India into the study of arbitration as an academic subject. India might become an academic “hub” for arbitration. Or India might promote a particular city (or cities) as a place in which international arbitration hearings are held. Or there might be a focus on the resolution of disputes in a particular industry. Or it could lead the world in the combination of dispute resolution methods (med-arb, for example). It could pursue some or all of these aims – and more. I can see arbitration become generally more important in India over the next decade and for India to continue to increase its standing in the arbitration “world” because I can see there is an outstanding generation of Indian arbitration lawyers coming through, who will build on the work that already has been done to develop Indian arbitration. But I can see that an obstacle to this growth might be the apparent lack of direction in Indian arbitration. One of the lessons to be learnt from the rise of Singapore as a leading arbitration centre is that there is a considerable advantage to be gained from having a clear strategy. The Indian Government is already considering such strategy, of course, and I would encourage even greater debate among the arbitration community in India about which direction Indian arbitration should be taking.
Q6. Arbitration as a field has continued to attract elaborate discussions on varied aspects- costs, the impartiality of arbitrators, confidentiality, etc. According to you, what is an issue concerning arbitration, old or new, that you believe hasn’t been talked about much but deserves urgent attention?
A6. It is difficult to say – one of the consequences of there being so many arbitration conferences and seminars is that it feels as if every part of arbitration has been dissected endlessly! One important aspect that I believe should be talked about more, however, is the engagement of the user with arbitrators and arbitration practitioners. We talk about this in broad terms (increasing time and cost) but we don’t talk about it enough in terms of the perspectives of individual clients. For example, many clients feel excluded when they enter the hearing room. What can be done to improve their experience? Are they getting the best service, both from their lawyers and from the arbitrators? We must never forget that arbitration is a service industry.
Q7. Finally, what would be your advice for law students and young lawyers wanting to pursue arbitration as a career?
A7. I think an open outlook is very important: you need to be open to different ways of doing things, different perspectives, different cultures, not only across the world but also within your own country. And there is no substitute for diligence. I have found that people who have succeeded in arbitration, like in many areas of life, are those who have put in the time and the effort in order to get where they want to be.
The Editorial Team at the Arbitration Workshop would like to thank Mr. Ben Giaretta for taking out time from his busy schedule and for sharing his perspectives with us!