Arbitration is often conducted in an international setting - but how are international arbitrations under the auspices of the German Arbitration Institute (DIS) conducted?
While not being an arbitral institution itself, the Atlanta International Arbitration Society (AtlAS – www.arbitrateatlanta.org) promotes and enhances Atlanta as a place to resolve the world’s business disputes using international arbitration and mediation. AtlAS organizes annual well attended conferences and monthly hybrid plenary meetings, discussing a wide variety of issues regarding arbitration.
At the December 2022 AtlAS plenary meeting, a panel consisting of Stefan Kröll, Chairman of the DIS, Amy Kläsener, Partner, Jones Day, Frankfurt, Theresa Kananen, Partner, Arnall Golden Gregory, Atlanta and James Boykin, Partner, Hughes Hubbard, Washington, moderated by Jan K Schäfer, Partner, King & Spalding, Frankfurt, and Christof Siefarth, Partner, BODENHEIMER, Cologne, discussed U.S. experience with DIS arbitration. The plenary meeting was held in cooperation with the German-American Chamber of Commerce South (with offices in Atlanta and Houston), represented by its President & CEO, Matthias Hoffmann.
Stefan Kröll, in the session's introduction, highlighted some of DIS arbitrations' main features: flexibility (represented by the particular emphasis on party autonomy), efficiency (anchoring around the mandatory case management conference with mandatory measures to address with the parties to increase procedural efficiency) and the possibility for the tribunal to encourage amicable settlements. Thereafter, the panel members shared their views on DIS proceedings from the perspective of American litigators: Compared to US-style arbitration and litigation, the cards are laid on the table at a relatively early stage, the speed and efficiency of the proceedings being a refreshing alternative to what practitioners expect in the United States.
The interactive discussion highlighted and discussed various aspects making DIS arbitrations - maybe conducted in Atlanta? - worth considering: The appointment mechanism for presiding arbitrators under the DIS Rules emphasizes party autonomy, and the panelists shared positive experiences with the DIS-style case management conference. Having the parties attend in person next to their counsel can have advantages in establishing effective proceedings with a swift procedural calendar, or even result in mediation or other ADR-style attempts to resolve the matter amicably. The strict confidentiality of DIS proceedings (Art. 44 DIS-Rules) and its high standards in contrast to merely "private" proceedings was highlighted, too.
Witness statement and document production are tools often addressed in discussions on transatlantic or international arbitration, and this panel was no exception: In DIS proceedings the IBA Rules on the Taking of Evidence in International Arbitration often apply. However, document disclosure will only be available to a much more limited extent, which may come as a surprise to U.S. parties. On the other hand, this does not protract the procedural schedule and helps keeping costs at a reasonable level.
The different, maybe - in comparison to continental Europe - less liberal approach to witness preparation is an aspect which can, and should, be addressed in the case management conference. The panelists agreed that preparation of good witness statements is a complex yet crucial task that is best approached as if one would directly examine the witness, but that in German/continental style arbitration, more emphasis will be put on documentary evidence.
Yet another feature was discussed in great detail: Under the DIS Rules (Art. 26), the tribunal has - save for an objection of the parties - not only the option, but the duty to address and "seek to encourage" amicable settlements at every stage of the proceedings. The panel looked beyond the common concern that arbitrators "switching hats" may thus prematurely form a view of the case and be "anchored" to such a position or even biased: The panelists, even those educated in the U.S., agreed that, quite naturally, arbitrators having reviewed the materials will have a certain initial view of the case irrespective of whether they discuss it with the parties or not, and maybe even earlier than in American-style arbitrations as the case unfolds quite early through the submissions, the great emphasis put on documents, the possibility of document disclosure is limited, leading to less surprises at a later stage of the proceedings. As Art. 26 DIS Rules encourages the arbitrators to share their views with the parties, this enables counsel to rectify misconceptions or submit further evidence in support of their case. Several panel members reported on cases turning or being settled after such a discussion, and the overall consensus was that this leads to fair, speedy and balanced decisions or pragmatic settlements. It became apparent that the way tribunals approach their duty under Art. 26 DIS Rules is highly individual and, of course, subject to the parties' discretion.
DIS is committed to "institutionalize internationality": The DIS Arbitration Council consists of 16 members, 8 of which are non-German arbitration practitioners. The council aides DIS and ensures international standards are continuously applied at DIS' day-to-day business, deciding on arbitrator challenges, appointments of arbitrators or similar decisions.
At the end of an enriching and interactive 90 minute session, participants had been presented a tour d’horizon of DIS arbitration - and hopefully will consider DIS clauses in US-European contract drafts to come – maybe with Atlanta as the place of arbitration.
Sebastian Feiler