Inside Arbitration Issue 22: Building the Bench - A conversation with Lise Bosman

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Credibility is key for any arbitrar institution, particularly those trying to establish themselves in a developing or growing market.
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One way in which credibility can be improved is by stacking the institution with market leaders.
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I'm honored there to be joined by one such leader, Liz Bosman.
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Thank you, Jonathan.
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Great to be here.
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Liz is the president of the AFSA International Court and is flown in fresh from the Netherlands.
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Lise, what are you doing in the Netherlands?
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I took a long road to get to the Netherlands.
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I grew up in South Africa.
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My family is a mixed English-Afrikaans family with a farming and academic background.
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I actually spent the first years of my life in the Free State in the metropolis of Velcro.
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And then went to high school in Johannesburg and university in Cape Town, which was very exciting because I was at university in those last few years before the democratic transition.
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So I was involved in campus politics and it was exciting but challenging.
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And I think a moment that forced people to actually ask themselves where they stand and what one's sort of conception was of justice.
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I know that's one of the things that I really took from my uh law studies at UCT.
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Uh, that idea inherent to any legal system must be a concept of the rule of law and that law can really be used as an instrument to achieve social justice.
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So after graduating from UCT, I worked at the Legal Resources Center here in Johannesburg.
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And then I got a scholarship to go and study international law in the US, which was a fantastic experience, and also a chance to reflect on what I'd experienced as a student and a young practitioner in South Africa and compare that to that to the experiences of some of the international students in my class.
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So I met some really good friends from Chile and Peru and from the Far East.
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Um and that's what led me into arbitration indirectly.
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Because while I was studying um at the University of Notre Dame, I met my now Dutch husband, and uh it was during a seminar um at Notre Dame University that the then US judge on the ICJ, Stephen Schwabel, uh, who died recently um after an amazing career, came to give a seminar.
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That seminar went very well.
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I went to him afterwards to say, you know, what are the job prospects for a South African in the Netherlands, you know, if I wanted to live there for a period.
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And he said, Oh, when you come, just give me a call, which is what I did.
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Um, and he put me in touch with a very good friend of his Gautani Aranji Ruiz, who was a judge at the Iran US Claims Tribunal.
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So I interviewed with him and ended up uh working there as uh as an advisor for three or four years as a young uh practitioner.
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And that brought me into touch with um international arbitration practice, with the unstral rules, because the Iran US Claims Tribunal was the first institution that actually applied the unstral arbitration rules um in their uh more or less in their entirety.
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Um and it gave me an interest in the process of dispute resolution, and from there I then moved into commercial practice in the Netherlands.
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Um and I've worked in commercial practice for a number of years, and I'm now based um in international organizations.
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One such organization is the PCA.
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Correct.
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Permanent Court of Arbitration.
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Yes, yes.
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And many people don't really understand what the PCA actually is, what it does.
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Yeah.
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Can you give us a bit of a no absolutely?
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Uh the PCA Permanent Court of Arbitration, it's a very old dispute resolution organization established in 1899 through Criti.
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It's an intergovernmental organization, and it actually has this fantastic origin story.
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Um, because what happened in the 1890s was that there was an arms race already then taking place among various European powers.
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Um and so Tsar Nicholas II of Russia, who later came to a very sticky end, convened this first peace conference, the first Hague peace conference in 1899, um, in the Netherlands.
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It was attended by mostly European heads of state.
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And they, through that first peace conference and a subsequent peace conference in 1907, they established the Permanent Court of Arbitration, which was um intended to be a forum for resolving disputes between states.
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So the bread and butter of the PCA was always uh resolving mostly land boundary disputes and also maritime disputes between states.
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But the PCA has grown and broadened its scope of operations dramatically since then.
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So um it now administers cases involving a state or a state-owned entity or an international organization.
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Those would include state for state disputes, this classic um uh disputes, but also a lot of investor state disputes.
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So the PCA now, in fact, administers uh nearly as many investor state disputes as Exit does in Washington.
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Okay, so it actually administers the resolution of disputes.
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It doesn't it's not an organization that then facilitates separate tribunals or no no it is so so so the um the PCA doesn't decide the cases itself, it acts like many other arbitrary institutions do, except that it operates within this very uh niche area.
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Um and so uh separate tribunals are appointed to decide uh individual cases, mostly under the PCA's own rules or under the uncentral arbitration rules.
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Um and the PCA administers um all those cases.
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Because I think that's an area of confusion for many people when it's a court.
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Yes.
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And we have it at AFSA as well.
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Yes.
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People here, it's a court of law, but we already have courts of law.
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Are you infringing upon the state courts in operating?
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And I think that's an interesting aspect of arbitration where we call them courts, but they're not really courts.
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Correct.
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They're administrative courts.
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Yeah.
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Uh and they facilitate the tribunals or they support the tribunals in making those decisions.
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Yeah, yeah.
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And add a sort of element of quality control, right?
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Correct.
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You know, so the the function of the AFSA court, which we'll get into in a moment, and it's a review function.
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You know, we're not there to replace the judgment of the arbitrator with our judgment.
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We're there to actually make sure that the awards that come out are enforceable internationally.
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Yeah, absolutely.
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And but that's not your only side, isn't it?
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No, no.
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You're also involved with an institution called ICA.
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So ICA is the International Council for Commercial Arbitration, another really old um organization.
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Um, this one is a non-governmental organization as opposed to the PCA, which is an intergovernmental organization.
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So ICA, the NGO, was set up in the 1960s with a mission to promote the use of international arbitration and other forms of dispute resolution.
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It's a really unique organization in that it is truly global, um, it is completely neutral.
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So ICA doesn't administer any disputes, which means that we can really take um the broader view and engage in real thought leadership.
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Umblishes um academic and semi-academic publications, a lot of publications that are that are well used by practitioners, you know, publication of court judgments on the application of the conventions, uh, country reports um on um jurisdictional approaches to arbitration.
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We have a very nice guide for judges on the um application of the New York Convention.
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So it is a publications arm, it also hosts a very large congress once every two years, which is the biggest congress in the international arbitration space.
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Um, and we conduct outreach and research projects.
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Um, we have a huge branch for young practitioners, which um has a membership of at least 20 or 25,000 um young practitioners.
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Um, and I'd say one of our more active programs is our judicial outreach program, which is a series of colloquia for national court judges on the application of the New York Convention.
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We call it our New York Convention Roadshow.
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And we've done about 55 roadshows over the last decade across five different continents.
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So it's it can it's a publisher, it's a thought leader, um, it does a lot of outreach, um, and um it does occupy this almost unique position in that um you know we can be completely neutral in commenting on the development of international arbitration practice.
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Wait, there's more.
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It is yours do more academic work in UCT.
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Yes, exactly.
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So I I I graduated from UCT and um I'm very attached to UCT.
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I've been teaching the commercial arbitration class in the LLM program for 20 years now.
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Um it's part of UCT's quite large LLM program, and this uh course fits within the dispute resolution specialization.
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Um class is amazing um every year.
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We have um around about a third South African students, a third to a half um students from other countries in Africa, and then a smattering of Europeans.
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And that really mirrors the process of international arbitration, right?
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You know, always mixed parties, um, mixed issues, um, a variety of different jurisdictions that uh touch on the arbitrary process.
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We try and bring that alive for the students, you know, through mock cases and through um and through uh mock trials and so on.
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I try and bring all my various areas of activity together.
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So um we also have a fellowship for graduates from the UCT program at the PCA.
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So for the last five years, we've had a graduate uh from the program spend a year um at the PCA getting real life experience in um in how international arbitration actually works in practice.
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I don't know where you find the time to also take on the AFSA role, but we'll touch on AFSA for a moment.
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But yes.
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I'd like to know how did you actually fall into arbitration?
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Because many years back, arbitration wasn't a specialist skill or specialist field.
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Um the state-level arbitration has existed for a long period of time.
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Commercial arbitration evolved out of practice and the need from commerce.
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Um, and 30, 40 years back, most people, if they were arbitration lawyers, downled in a bit of everything as well.
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Because you very much are an arbitration specialist.
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How did you end up there?
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How did it start for you uh uh uh to take you where you are today?
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So um certainly when I was in law school, arbitration wasn't taught, right?
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It it just you know it was perhaps a footnote in in a textbook.
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Um and that's begun to change, although a lot of faculties actually really don't have really good speed resolution courses um still, but certainly back then it wasn't it wasn't an issue.
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So that came about sort of organically through um the LLM in international law that I did um in the US.
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So it was through through a contacts made there through Judge Stephen Schwabel, the judge at the ICJ, um, who put me in touch with um uh a judge at the Iran US Claims Tribunal.
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And um and so I went from UCT to practice in Johannesburg to um uh to the LLM um from the LM, then went on to work at the Iran US Claims Tribunal.
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And from the from the Iran US Claims Tribunal, I went into commercial practice, um commercial arbitration practice.
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And actually, in fact, when I was Freshfield, for instance, did a mix of commercial and investor state arbitration as counsel.
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Okay.
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So now we know that you're very busy, you don't have much time in your hands, you were approached by AFSA to take on the role of president of the court.
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In a weak moment.
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Perhaps.
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Well, talk us through your thought process.
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What is it that attracted you to the role?
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Um, what did you think you could contribute to the role at that point in time?
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Before you knew much about what was actually going on within AFSA, uh, what was your thought process in accepting the nomination?
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Yeah.
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Well, I've done quite a lot of work in the development of arbitrary practice on the African continent for, you know, 15, at least 15 years or so.
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Um, I've published a book on um arbitration in Africa for practitioners.
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Um, I've done quite a lot of academic work.
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Um, and through ICA, um, I've done a lot of work with our African working group into, you know, um contributing, for instance, to law reform processes or redrafting of rules for arbitrary institutions and so on.
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Um, and it was not dissimilar with with AVSA.
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I think I became pulled into ABSA through the rules drafting project in 2020-2021, right?
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Um, and became more and more interested in ABSA at the time.
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But that fits into a broader concern, a broader interest that um I really believe that it is important for us all to develop solid arbitrage institutions on the African continent.
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And AVSA is so well placed uh to play that role in this region.
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It's the strongest institution um in South Africa, it's the strongest institution in the region, and um it should be a global player, and I think it has the potential to become a really global player.
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So it flows from that commitment that, you know, after having done that sort of semi-academic work uh for a long time, I thought it was time to actually engage more fully in an actual institution and contribute to that.
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Okay.
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So then you accepted the nomination, you stepped into the role of president of the international court.
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Now, the the AFSA court was also very unique when it was set up under the international rules.
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Uh AFSA never had a court before.
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Um, South Africa never never had an arbitrary court.
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So it took some time for the market to adjust to the idea of a court.
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We discussed a little bit earlier about the decision making of an arbitrary institution.
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Institutions don't decide disputes, it's the tribunals that are appointed to decide those disputes.
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Can you talk us through the structure of the court, what it is, what it's not, and how it operates?
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Yeah, yeah.
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Well, so the the idea of a court within an arbitrary institute may be an unknown to the South African market, but it's very common in many commercial arbitrational institutes across the globe.
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So the ICC in Paris has a court, uh, the LCIA has a court, many other established institutions have a court.
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And the role of the court is not to decide cases.
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The um it's the arbitrators appointed by the institute or put by the parties who decide the cases, right?
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What the court does is provide um a function in terms of um of quality control, of being a sort of guardian of the rules, um, through resolving tricky procedural issues.
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I would say our most important functions are the appointment of arbitrators, um, potentially challenges to arbitrators, and um review of draft awards.
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We also get a lot of really arcane, complicated questions um around the exact interpretation of um of uh certain rules that haven't been properly tested yet.
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Um, but that's mostly what we do.
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And when we look when we look at an award, as you know, Jonathan, you know, we're not looking to replace our judgment with that of the arbitrator who is the appointed decision maker, right?
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We're looking to make sure that that award in front of us will be internationally enforceable under the New York Convention, which is obviously the main convention for the enforcement of foral arbitrary awards.
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And so we look to make sure that um it includes all the elements required by the New York Convention, that it's reasoned, um, and that it also reflects that the arbitrator or the tribunal has followed the due process requirements that'll be examined by the enforcing court.
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Um so that's the focus of our attention when we are asked to review an arbitrary award.
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And just on the appointment of arbitrators, I know a lot of people think that the moment you get onto a panel, you just start receiving appointments.
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Yeah.
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Now there are very few institutions around the world that just hand out appointments, mainly because the majority of appointments are done by party agreement.
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So to what extent does the court get involved?
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When does the court actually appoint an arbitrator?
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Um, does does the court really consult its panel that often for appointments, or or what do you see?
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We do consult the panel, but I think it's important to place our role in perspective.
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Um, at least 80% of appointments of arbitrators are made by the parties, right?
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So we only get to um to make made to make appointments in a very limited number of um of instances.
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And what we do then is um we form um a small uh uh committee within the court um that will be composed of uh the president and two vice presidents, or one of the vice presidents and two other court members, for instance.
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Um, and we will um start off by looking at the AFSA panel to see whether there's someone on that panel who meets the requirements, right?
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You know, who has the subject matter expertise, who has the right nationality, or um actually more often who doesn't have one, the nationality of one of the parties, um, um, and who has the right sort of um uh qualifications and demographic to fit this the particular case, um, and then we'll actually make that nomination.
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It then goes to this to the secretariat who will then you know get in touch with the potential uh nominee and ask them to make sure that um they are uh they can confirm that they're independent and um and not aligned by one of the parties and available, etc.
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Okay.
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And the other function of the court you mentioned was the reviewing of the award.
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Now AFSA is not um as intense in terms of that review as an ICC would be.
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Yes, yes, yes.
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Um what is it that the AFSA court would actually do when it gets an award?
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Yeah.
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So you've mentioned the ICC, the I the the ICC court is notoriously interventionist, you know?
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They're gonna go from, you know, kind of point A to point B on the award and are not shy of actually kind of making recommendations to the arbitrators sometimes about the reasoning of the awards, you know?
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That's not really the focus.
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Uh we make we um we'll start off back to going through at the AFSA checklist, uh, which sets out all the necessary elements that need to be an award, you know, the names of the parties, the names of the arbitrators, the place of arbitration, etc.
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To make sure all those formal requirements are met, that it's signed.
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Um and then we will look to see whether it is reasoned, not whether we agree with the reasoning or we agree with the conclusion.
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That's not the role, right?
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We look to see to see that it's reasoned, and we look to see um whether it reflects the due process requirements that will come up in any enforcement proceeding um under the New York Convention.
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Okay, I mean that's very very important.
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And uh assuming we see a bit of um feedback from arbitrators.
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Yeah, yeah.
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Um particularly those retired judges who draft beautiful judgments and beautiful awards.
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Yeah.
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But there is a there's a technical checklist aspect of drafting an arbitral award from an enforceability perspective, but it's not glamorous, but obviously vital important because that's really the focus of the court is exactly enforceability of those awards.
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Absolutely.
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Enforceability is really what we actually care about.
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And you know, you've you've mentioned um, you know, the um the fact that we see a lot of awards drafted by former judges uh and by senior counsel, you know.
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And generally I would say that the the quality of the award, the awards, the draft awards that we see in the court um is very, very high.
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They're well reasoned, they're very thorough, they come to very um carefully considered uh conclusions.
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But what we sometimes see because of the background of some of the arbitrators appointed, that they sometimes tend to look a little bit more like court judgments than arbitrary awards.
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Um and that um is something that I think we're there also to flag to make sure that all the sort of technical requirements set out in the checklist um are met and that um and that the award is complete in the way that the New York Convention requires for enforcement.
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Right.
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And how how active is the court?
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I mean, you you you took on the role and you had in your mind an idea as to how much time it would take up, what you would be doing.
00:18:32.799 --> 00:18:38.640
Um has reality matched your expectations or have you been have you done more work?
00:18:38.799 --> 00:18:40.799
Um, you know, how often does the court meet?
00:18:40.960 --> 00:18:43.599
Does it meet more with the vice presidents or the full court?
00:18:44.000 --> 00:18:51.359
Yeah, so um the court um I think traditionally has met once, maybe max twice a year in its full plenary.
00:18:51.440 --> 00:18:54.799
Um we will keep that up and make sure that we meet a couple of times a year.
00:18:54.960 --> 00:18:57.440
We had a really productive meeting in March of this year.
00:18:57.519 --> 00:19:16.720
Um, but for the actual um day-to-day operations, the president and the vice presidents meet on video call once every two weeks, and we run through which of issues actually have have come up in sort of policy matters in terms of you know, for instance, the possibility of drafting guidance notes or um making sure there's a correct flow of questions that come from the uh secretariat.
00:19:16.880 --> 00:19:22.880
See how we can sort of support the secretariat in ensuring that there's an efficient flow of um of questions.
00:19:23.119 --> 00:19:27.920
So we do have that that meeting and we we resolve quite a lot of uh of difficult issues in that meeting.
00:19:28.079 --> 00:19:41.039
Um and for the rest, we exchange a lot of emails, you know, and try and resolve most of the references from the secretariat um on that on that basis, making sure that we've always consulted with ideally three uh court members.
00:19:41.200 --> 00:19:45.440
So the vice presidents and the president are the most active, but we also reach out to the court.
00:19:45.599 --> 00:19:52.319
You know, we have I think it's 18 members right now, uh, all of how all of whom have slightly different backgrounds and areas of expertise.
00:19:52.480 --> 00:20:04.799
So if particular questions come up that require input on a particular issue, then we'll you know make sure we actually use the court, other court members in in these little panels of um of three.
00:20:05.119 --> 00:20:05.359
Right.
00:20:05.599 --> 00:20:12.240
And with some of the questions that have popped up, uh I suspect that a lot of that has also come from a rather unique situation we find in South Africa.
00:20:12.480 --> 00:20:17.039
We've for many years domestic arbitration has flourished in South Africa.
00:20:17.119 --> 00:20:21.039
And so we have a number of practitioners that are litigators and arbitrators.
00:20:21.680 --> 00:20:30.240
Um and it was only really with the introduction of the new act in 2017 that we started seeing a stark difference between international and domestic practice.
00:20:30.799 --> 00:20:32.799
Domestic practice is still flourishing.
00:20:32.960 --> 00:20:33.440
Yes.
00:20:33.599 --> 00:20:42.559
Um, and uh as a practitioner who is practiced mostly outside of South Africa, um, I mean, have you got any observations as what you've seen from this practice?
00:20:42.799 --> 00:20:43.279
Is it unique?
00:20:43.359 --> 00:20:45.920
Is it a South African thing or does it happen elsewhere?
00:20:46.160 --> 00:20:46.559
Yeah, yeah.
00:20:46.880 --> 00:20:52.480
Well, I I think that South Africa starts off very strongly because of this very strong domestic practice.
00:20:52.640 --> 00:20:56.480
There's a strong tradition of using arbitration and trusting arbitration in this country.
00:20:56.640 --> 00:20:58.480
Um, and that's a very good thing.
00:20:58.720 --> 00:21:07.680
Um I also think it's not unusual for there to be differences between the administration of domestic issues and the administration of international cases.
00:21:07.839 --> 00:21:18.400
I also so I also don't think there's a problem um that there are slightly different traditions for the administration of uh domestic arbitration versus um international arbitration.
00:21:18.880 --> 00:21:24.559
Um but I do think that South African arbitration practice is still in something of a transition.
00:21:24.720 --> 00:21:29.359
So the passage of the 2017 Act was a real watershed for South African arbitration practice.
00:21:29.519 --> 00:21:47.440
That um, while the courts had been extremely arbitration friendly in dealing with arbitration-related court applications under the old act, um, it was still very hard for attorneys to be able to explain to their to their clients, particularly international clients, that South Africa was a solid and reliable place to seat the arbitration.
00:21:47.680 --> 00:21:50.400
With the passage of the new act, that becomes much, much easier.
00:21:50.559 --> 00:21:59.519
So now we see that, um, as you point out, Jonathan, we have these two parallel tracks, a very, very strong domestic track that is based in an old tradition that I think is valuable.
00:22:00.160 --> 00:22:04.559
And should continue to be to be to be valued and the growth of this international track.
00:22:05.039 --> 00:22:14.079
What I've tended to see internationally is that in that situation, it is the more modern practice that starts to uh predominate.
00:22:14.240 --> 00:22:29.119
So I would expect in South Africa that we would see that practices uh derived from the international cases and the international practice under the 2017 Act will start to influence domestic practice and that ultimately they may converge.
00:22:29.440 --> 00:22:29.759
Right.
00:22:30.000 --> 00:22:45.680
And one of the projects we've talked about within the court is whether it would make sense to do a redraft of AFSA's domestic rules, for instance, the commercial rules, um, and bring them, either bring them in line with the international rules or perhaps even end up with one set of rules.
00:22:45.839 --> 00:22:47.039
And I'll be in favor of that.
00:22:47.279 --> 00:22:53.359
Yeah, I think that the the the international rules are drafted in a way that that could easily accommodate the domestic practice as well.
00:22:53.519 --> 00:22:53.680
Yeah.
00:22:53.839 --> 00:22:57.839
Um it's not as though the practice could only operate in an international uh space.
00:22:58.079 --> 00:22:59.839
Um but I suppose time will tell.
00:23:00.240 --> 00:23:05.279
Um the as you mentioned, the domestic practice is quite entrenched and it's flourishing.
00:23:05.359 --> 00:23:05.599
Yeah.
00:23:05.839 --> 00:23:07.039
But it is very domestic.
00:23:07.200 --> 00:23:10.160
And and there are some disconnects when it comes to enforceability.
00:23:10.319 --> 00:23:10.480
Yeah.
00:23:10.559 --> 00:23:13.119
Um domestic awards are still enforceable in the New York Convention.
00:23:13.200 --> 00:23:13.519
Yes.
00:23:13.680 --> 00:23:17.279
Um and so there is still is a requirement for compliance with the New York Convention.
00:23:17.599 --> 00:23:18.640
Yeah, exactly, exactly.
00:23:18.880 --> 00:23:21.759
And one of those is is of course completeness.
00:23:21.839 --> 00:23:27.920
You know, we see quite a lot of cases where arbitrators have failed to decide costs, for instance, you know, meaning that the award is not complete.
00:23:28.079 --> 00:23:34.160
Um, you know, in international practice, international rules, um, you have to decide all the issues laid before the court, including the costs.
00:23:34.240 --> 00:23:39.200
You can't hand it and hand the costs um off to someone else, which has been the practice in South Africa.
00:23:39.599 --> 00:23:45.359
Well, your experience both globally and now with with AFSA, you've got quite a unique insight.
00:23:45.440 --> 00:23:49.680
You you've got um a view from practice, you've got a view from the academic side of things.
00:23:49.839 --> 00:23:52.319
Um what do you think makes a good arbitrator?
00:23:52.640 --> 00:23:54.640
Well, arbitrators are decision makers, right?
00:23:54.799 --> 00:23:57.920
Uh so that's not unlike the function of a judge, obviously, right?
00:23:58.079 --> 00:24:02.079
But I think what makes a good arbitrator is subject matter expertise.
00:24:02.240 --> 00:24:07.599
They need to actually be able to understand the industry that the dispute has has arisen out of.
00:24:07.839 --> 00:24:16.960
Um, but a strong familiarity with process and a willingness to actually use that process and a willingness to also take decisions.
00:24:17.119 --> 00:24:34.400
You know, you you sometimes see arbitrators who are so worried about the potential enforceability um of their case that they will allow a case to continue endlessly and accept, you know, multiple um uh procedural requests from both parties because they're afraid that there'll be a due process complaint, right?
00:24:34.559 --> 00:24:36.960
Um that's not the way to go, I would say.
00:24:37.119 --> 00:24:52.480
Um I think a good arbitrator knows exactly where to draw the line, to make absolutely sure the parties are heard, that they perceive themselves to have been heard, that the process really has been fair, but also to know when the dispute is right for decision and to take that decision.
00:24:52.799 --> 00:24:53.200
Right.
00:24:53.359 --> 00:24:57.839
You know, some arbitrators have been criticized in the past for writing boring awards.
00:24:58.640 --> 00:25:02.960
And and the reality with arbitration, it it it can be a bit boring.
00:25:03.119 --> 00:25:03.359
Yeah.
00:25:03.599 --> 00:25:08.079
Um we can appear to court judgments, for example, which can be quite interesting to read.
00:25:08.240 --> 00:25:08.640
Yeah, yeah.
00:25:08.799 --> 00:25:11.759
Um, but I suppose that comes from the process of arbitration.
00:25:11.920 --> 00:25:15.039
It is the the arbitrator is a process manager.
00:25:15.279 --> 00:25:15.680
Exactly.
00:25:15.920 --> 00:25:24.400
And and the output is the award, and it needs to be a a reasoned award that is easy to follow and understand, as opposed to an entertaining piece of writing.
00:25:24.559 --> 00:25:25.119
Yeah, exactly.
00:25:25.279 --> 00:25:32.559
Um which I think I think is a bit of a misunderstanding at times with young arbitrators getting into uh into the field.
00:25:32.799 --> 00:25:36.400
Yeah, so if long equates to boring, then there are a lot of boring awards out there, you know.
00:25:36.480 --> 00:25:45.039
But some of that's necessary, um, and that's because when it comes to enforcement, the judge at the enforcing court needs to know that due process requirements have been met, you know.
00:25:45.200 --> 00:25:50.799
So we often see the the these very long procedural histories drafted and included in arbitrary awards.
00:25:50.960 --> 00:25:52.400
I would say that that is necessary.
00:25:52.559 --> 00:26:01.759
And in fact, you know, through um Ica's New York Convention Roadshow, um, we get insights into the kinds of questions that judges actually have when they're confronted with awards, you know.
00:26:01.920 --> 00:26:06.799
And judges sometimes say to us, we need arbitrators to give us what we need, right?
00:26:06.960 --> 00:26:11.599
We don't want to have to kind of relitigate um all the issues or ask for extensive evidence.
00:26:11.759 --> 00:26:17.759
We ideally we want to want it to be visible on the face of the award that due process has been followed.
00:26:17.920 --> 00:26:25.440
Um, and so that is sometimes why you get these um these procedural histories, for instance, which um which make the awards um quite long.
00:26:25.680 --> 00:26:29.920
And is AFSA doing anything to help encourage local arbitrators to draft awards like that?
00:26:30.240 --> 00:26:38.960
Well, the courts run a number of very good seminars, um, um, and and of course the AFSA Secretariat runs regular training courses for practitioners and potential arbitrators.
00:26:39.119 --> 00:26:46.240
Um that's a very strong part of part of AFSA's offerings, and the court contributes to that um when uh when when we're asked to to do so.
00:26:46.400 --> 00:26:48.880
Most of those are run by the secretariat and by the CEO.
00:26:49.039 --> 00:27:02.400
So I think anyone in the South African market who's interested in converting their process and slowly getting into becoming an arbitrator has a lot of expertise to sort of choose from, has a lot of training material to to use.
00:27:02.640 --> 00:27:04.559
Um AFSA has a lot of things to offer.
00:27:04.799 --> 00:27:05.920
Okay, and then getting onto the panel.
00:27:06.079 --> 00:27:06.240
Yes.
00:27:06.400 --> 00:27:12.160
How does an arbitrator get onto the AFC panel and and will they then just sit back and expect uh appointments to come?
00:27:12.240 --> 00:27:12.400
Yeah.
00:27:12.640 --> 00:27:13.200
What is the process?
00:27:13.599 --> 00:27:15.279
Well, again, let me caution.
00:27:15.519 --> 00:27:22.960
We only get to make a very limited number of appointments every year because the vast majority of appointments are made by the parties themselves, right?
00:27:23.200 --> 00:27:26.720
Um, but when the court does actually appoint, um, we look to the panel first.
00:27:26.960 --> 00:27:34.400
To get on the panel, I think as arbitration specialists, what you need to do is to first, of course, build a reputation for being an arbitration specialist.
00:27:34.480 --> 00:27:37.599
And mostly that's um within door firm practice or at the bar, right?
00:27:37.759 --> 00:27:44.799
So you won't you know so the the typical path for arbitrators is to start off being counsel in arbitration proceedings, right?
00:27:44.960 --> 00:27:54.400
For very young um practitioners, you would uh often start off by acting as secretary to the tribunal before you actually get to have um have have decision-making um uh authority.
00:27:54.640 --> 00:28:02.079
But that most mostly takes place within the context of law firms or of um or of the bar, um, some um often academia as well.
00:28:02.160 --> 00:28:07.039
Um a lot of a lot of academics combined sitting as arbitrator with their with their um academia.
00:28:07.200 --> 00:28:15.599
Um government lawyers um play an important role, and we sometimes see uh um specialists working for government and then and then going to going into private practice.
00:28:15.680 --> 00:28:20.319
So you start off by establishing a reputation as a disparate resolution specialist, right?
00:28:20.559 --> 00:28:34.079
Um and then I would say bolster that reputation by going to conferences, um attending uh seminars, offering to participate in seminars or give seminars yourselves, writing and blogging, and building up that reputation.
00:28:34.400 --> 00:28:40.480
Once you've established um a reputation, you can then apply to ABSA to be included on the panel of arbitrators.
00:28:40.559 --> 00:28:50.240
And there are a number number of requirements um to be, to be met that will then actually go through, including um being able to produce um uh several previous um awards that have been drafted.
00:28:50.400 --> 00:28:52.480
Um the panel is quite large at the moment.
00:28:52.559 --> 00:28:56.640
Um, so I know that people are often disappointed when they actually don't get a panel appointment.
00:28:56.880 --> 00:29:00.240
But that's because we don't get to actually appoint very many people, in fact, you know.
00:29:00.319 --> 00:29:07.759
So I think anyone who's interested, though, should start off by building a solid practice and then make people know that that practice exists.
00:29:07.839 --> 00:29:13.599
Um, make and let EFSA know that you have subject matter expertise and then apply to be appointed to the panel.
00:29:13.920 --> 00:29:21.119
You you also mentioned in that the role that the law firms play in in help building practices and the law firms who have established practices in arbitration.
00:29:21.759 --> 00:29:30.640
Um one of the the outputs of the South African market was that arbitration and basically the advocacy and arbitration is still done by the advocates, the barristers.
00:29:30.960 --> 00:29:37.680
And we saw very, very few attorneys or solicitors actively pushing arbitral practice, actually doing the advocacy.
00:29:37.920 --> 00:29:38.240
Yes.
00:29:38.480 --> 00:29:45.920
Is is that your understanding of the global market, or do what role do solicitors play from your perspective in arbitration across the globe?
00:29:46.319 --> 00:29:46.480
Yeah.
00:29:46.640 --> 00:29:49.359
Well, that was never the case in civil law jurisdictions, obviously, right?
00:29:49.440 --> 00:29:50.559
Because there's no split bar.
00:29:50.720 --> 00:29:56.400
So this is something that already only applies um in the common law tradition that and that still maintains a split bar.
00:29:56.640 --> 00:30:03.519
But even in um within that tradition, in most countries that I've seen, um, that practice has really diminished, you know.
00:30:03.599 --> 00:30:10.960
So we see um attorneys sitting in law firms um uh uh um representing parties and doing their own advocacy.
00:30:11.119 --> 00:30:13.119
It's become completely standard.
00:30:13.519 --> 00:30:17.680
It's slowly changing in South Africa, but there's quite a bit of uh work to be done on that.
00:30:17.839 --> 00:30:18.160
Yeah, yeah.
00:30:18.240 --> 00:30:25.359
Um but it is it is you know positive to see the role that attorneys can play in arbitration related work.
00:30:25.440 --> 00:30:25.680
Yeah.
00:30:25.839 --> 00:30:27.359
Um so that is that is positive.
00:30:27.440 --> 00:30:27.680
Yeah.
00:30:27.839 --> 00:30:32.880
Um I think just closing remarks for young practitioners wanting to get into arbitration.
00:30:33.119 --> 00:30:34.559
Any tips, guidance?
00:30:34.720 --> 00:30:34.880
Yeah.
00:30:35.039 --> 00:30:35.599
What do they do?
00:30:35.759 --> 00:30:36.240
Yeah, yeah.
00:30:37.039 --> 00:30:38.880
Not just for an appointment, just getting into the space.
00:30:39.519 --> 00:30:40.240
This space, exactly.
00:30:40.319 --> 00:30:47.039
You know, well, a lot of my students who are anything between, you know, 24 and 28, you know, will actually often ask, you know, how do I become an arbitrator, you know?
00:30:47.200 --> 00:30:51.759
And the answer to that is complicated, you know, and I think it starts off with it takes quite a long time, right?
00:30:51.920 --> 00:31:02.720
So, but to get into arbitration, I think you need to um, I think first see it quite broadly, because you don't just need to be in practice in order to actually develop arbitrational expertise.
00:31:02.799 --> 00:31:08.319
You know, so quite a lot of our students um go back into practice, obviously after they've done their um LLMs.
00:31:08.480 --> 00:31:15.119
Some of them will go into government, um, and quite a lot of them go to the bench or go back to the bench um after they've done um an LLM.
00:31:15.200 --> 00:31:19.599
Um and there's their roles be played in all the in all of those areas.
00:31:19.839 --> 00:31:32.559
So um an obvious path would be for someone who is interested in becoming a dispute resolution specialist to find a firm that actually has a strong dispute resolution practice, you know, apply to that firm, get a job there, right?
00:31:32.720 --> 00:31:40.480
Um another path would be to try and find some sort of internship or fellowship, either with an international firm or with an arbitrary institute.
00:31:40.559 --> 00:31:46.079
Quite a lot of arbitrary institutes globally actually have uh quite strong um internship and fellowship programs.
00:31:46.160 --> 00:31:50.160
So that's a really good way to actually get a little bit of um of experience.
00:31:50.640 --> 00:31:51.599
Um what else?
00:31:51.759 --> 00:31:59.599
Um I would say uh writing and blogging, which is a sort of lower threshold way of actually kind of getting your name and your ideas out there.
00:31:59.839 --> 00:32:01.839
Um, joining organizations.
00:32:02.000 --> 00:32:06.480
There are lots of organizations set up for young arbitration practitioners.
00:32:06.559 --> 00:32:09.359
So young AVSA does a lot of very nice workshops.
00:32:09.440 --> 00:32:15.920
Um Young Ica is a little bit older and um has a very extensive skills training workshop program.
00:32:16.079 --> 00:32:29.519
We have a structured mentoring program that puts about 80 young practitioners through um a very structured um uh mentoring program every every year in sort of two-year cycles.
00:32:29.680 --> 00:32:33.359
Um, there are scholarships um available in Young Ecker's name.
00:32:33.519 --> 00:32:43.680
Um, and I think you know, trying to adopt an uh both an international attitude and a sort of generous volunteering mentality um is very helpful, you know.
00:32:43.759 --> 00:33:05.200
So um I always start off by telling my students every year that one of the goals of our course is to help students develop um an international um uh approach or an international attitude, but you need to actually get used to working in a space where um you're not just applying national legislation and national um case law in order to resolve a dispute or in order to advise a party.
00:33:05.440 --> 00:33:14.240
You really need to actually look beyond uh national law to um to other jurisdictions, um to international treaty and to international practices, right?
00:33:14.319 --> 00:33:17.200
So it partly involves a switch of attitude, I think.
00:33:17.359 --> 00:33:30.960
And then it also involves a willingness to just get involved, get out there, go to seminars, write things, uh, volunteer to sit on committees, volunteer to organize things, um, and get your name out there, someone who's interested in the space and has something to offer.
00:33:31.200 --> 00:33:31.759
Very valuable.
00:33:31.839 --> 00:33:32.640
Thank you so much for your time.
00:33:33.279 --> 00:33:33.680
It's a pleasure.
00:33:33.920 --> 00:33:35.519
We look forward to catching up next time you're in town.
00:33:35.599 --> 00:33:41.839
We'll we'll pick things up and discuss what else uh has happened at AFSA um, you know, the next few months.
00:33:42.000 --> 00:33:43.359
Um and wish you safe troubles.
00:33:43.519 --> 00:33:43.680
Thank you.
00:33:43.920 --> 00:33:44.240
Fantastic.
00:33:44.319 --> 00:33:45.039
Thank you, Johnson.