International Arbitration During COVID-19

August 3rd, 2021

By the middle of February 2020, I had resolved upon a plan.  I would travel to Kuala Lumpur to undertake the Chartered Institute of Arbitrators’ Diploma of International Commercial Arbitration at the Asian International Arbitration Centre.  This course had come highly recommended by a number of colleagues.  I had space in my diary.  I had sorted out accommodation.  Then, COVID hit.

My interest in international arbitration has developed from my maritime law practice.  I have appeared in a number of arbitrations involving cargoes and shipping contracts.  This ultimately led into other commercial disputes.  About 18 years ago, I joined the Institute of Arbitrators and Mediators Australia (IAMA) and completed their Professional Certificate in Arbitration.  At the time, IAMA appeared to be the premier arbitration organisation in Australia.

Some years later, the law of domestic arbitration changed upon the States’ adoption of the UNCITRAL Model Law on International Commercial Arbitration.  By this time, the Chartered Institute of Arbitrators appeared, at least in my eyes, to have become the premier arbitration organisation in Australia.  It also had the advantage of being an international organisation with international recognition.

As lock downs began and I learned to work more efficiently from home, I thought it would be a good use of time to undertake the Chartered Institute of Arbitrators’ award writing course.  However, since I was only an Associate of the Institute and because some extra study never hurt anyone, I decided to upgrade my membership from Associate to Member by undertaking the Accelerated Route to Membership (ARM).  I would then upgrade my membership from Member to Fellow.

The ARM focuses upon the law, practice and procedure of international commercial arbitration.  There is a pre-course assignment worth 20%.  Through Zoom, I attended the two-day workshops and tutorials.

The materials for the ARM comprised a lever arched folder of materials, double sided.  I recommend that you print them because it gives the opportunity to mark up, use post-it notes, and digest the information more thoroughly.  Dr Vicky Priskich was the course director of the ARM.  She was assisted by Albert Monichino QC and Dr Andrew Hanak QC.

The tutorials were relaxed, thought provoking and very useful.  Vicky, Albert and Andrew spent a lot of time with us discussing all manner of things arising out of arbitration.  It was a practical and interesting course.

After finishing the tutorials, we then sat a take home exam, comprising four essays on topics taught in the ARM.  To pass, you had to achieve at least 65%.  Thankfully, I cleared that hurdle.

Next, in order to undertake the award writing course, I had to pass a module called “The Law of Obligations”.  Lawyer of some years’ experience are eligible to sit an exemption test.  To pass the exemption test, you must achieve at least 70%.  My advice to a person sitting the exemption test is to give themselves plenty of time and not to rush through it.  It is an on-line, multiple choice test and, while I would expect any barrister at our Bar to understand the law of obligations, the multiple choice test does address matters of foreign law.  But do not fear.  You are given the materials for the law of obligations in advance and, therefore, a quick search through the materials will provide you with the information you need.

Having passed the ARM take-home exam and the law of obligations exemption test, I was in a position to undertake the award writing course.

The award writing course is not for the fainthearted.  Without naming names, I know a number of adept lawyers who failed the exam on their first attempt.  There are also stories of retired judges who, for one reason or another, failed this exam.

With these ominous stories, I undertook the award writing course.  The course director was Caroline Kenny QC, she was assisted by Vicky Priskich, Albert Monichino QC, Andrew Hanak, Gordon Smith and Malcolm Holmes QC.  There was, again, a lever arch folder of materials.  I also recommend that you print them, for the reasons stated above.  We were required to attend three full-day tutorials.

Writing an award is quite a challenge.  While it bears similarities to a court ‘s judgment, there are particular demands as to form and substance that make it different.

While an award should be clear, concise and reasoned, it should contain a brief description of the arbitral process and hearing.  It should not be discursive and should not canvass issues that were not put to the arbitrator.

Before we undertook our last tutorial, Tom Clarke of our Bar produced a draft award and, I must say, it was extremely well written.

After completing our tutorials, a take home exam was provided to us in two parts.  The first part enabled us to write approximately half of the award.  We were given about a week to prepare this.  The second half of the exam was given to us to complete within 48 hours.  This information enabled us to complete our award.

The assessment was challenging and, I think, a fair assessment of what we had learned.  Once you have passed the award writing exam, then you can apply to become a Fellow of the Chartered Institute of Arbitrators.

If you are keen to work in the arbitration field, I strongly recommend that, at the very least, you complete the ARM.  A number of our colleagues have already done so.  I also recommend that you complete the award writing course and become a Fellow of the Institute.  Obviously, if you want to become an arbitrator this is bordering on the essential, particularly in the international field.  But for barristers wanting only to work as counsel before arbitrations, I think it is useful to know what an arbitrator is wanting to know, so you can assist him or her in preparing a binding award.

The tutors and materials were excellent.  I cannot recommend these courses more highly.

Matthew Harvey QC FCIArb

Barrister, Victorian Bar