David Rivkin, the new International Bar Association (IBA) President, speaks to Kanishk verghese about his new role, the IBA's road map and arbitration trends in Asia.
ALB: Congratulations on being elected the new president of the IBA. Could you describe what your new role will entail, and the key goals in your roadmap for the next few years?
Rivkin: I am very excited about the opportunity to be the president of the IBA. I will spend the majority of my time working on IBA matters, but will continue to represent clients on international arbitrations and international litigation. I will, of course, be supporting many of the IBA’s on-going projects related to the rule of law, human rights and business law. In addition, I have five particular priorities on which I will be spending my time:
1) To continue the work of the Climate Change Justice and Human Rights Taskforce, which issued a report in Tokyo describing the legal issues arising from climate change. The report contains several dozen specific recommendations that can, and should, be taken by the legal community, the United Nations, national governments, corporations and others. I will work with the various committees within the IBA to further that work and to try to implement as many of those recommendations as we can.
2) A focus on corruption in the judiciary where it occurs. The IBA already has a very strong anti-corruption programme. It has conducted trainings in more than 30 countries around the world, helping lawyers focus on combating corruption and in recognising corruption when they see it. We want to expand that work to create a new project that will assist in reducing corruption in the judiciary around the world. We are going to convene a panel of experts early next year to determine the best way for the IBA to do that. One possibility could be to look at those countries where judicial corruption has been significantly reduced and to determine what practices they put in place, and then encourage those practices in other parts of the world.
3) To continue the work of the taskforce on human trafficking. We are going to undertake training programmes in three countries over the next two years, which will focus on identifying human trafficking and the steps that can be taken to better enforce laws against trafficking.
4) Establish a taskforce to look at challenges to the independence of the legal profession. Unfortunately, there are too many countries that are threatening to bring the Bar within government control, which threatens our ability to practise independently as lawyers and to represent our clients adequately and appropriately. We have also seen some governments undermine the attorney-client privilege and even engage in spying on lawyers when they are engaged in lawsuits against the government. We want to bring together all the aspects of the IBA – the individual members, the Bar associations, the Human Rights Institute – to examine these issues and to see what we can do to resist those challenges.
5) Finally, next year is the 800th anniversary of the Magna Carta. The principles of the Magna Carta remain vitally important, so we are going to have a number of projects and conferences to celebrate that anniversary. We will be presenting or participating in conferences in London, Cape Town, Delhi and Buenos Aires.
ALB: How is the IBA involved in raising awareness and educating the business community in Asia on international arbitration?
Rivkin: The Arbitration Committee and the IBA’s Asia Pacific Forum together formed the Asia Pacific Arbitration Group (APAG) in 2013. APAG held its first conference in Sydney in 2013, and it will host a number of conferences and programmes in Asia each year. It is designed to provide a forum for Asia-based arbitration practitioners to meet on a regular basis and to consider particular issues that arise in Asia. They have established working groups to focus on particular issues, such as harmonising arbitration laws around Asia, and at the same time, they will work on promoting the broad soft law that the IBA Arbitration Committee has created, such as the guidelines on party representation in international arbitration and guidelines on conflict of interest for arbitrators. Those are enormously important documents, and the more the business community becomes comfortable with them and believes that arbitration is conducted in a fair and neutral manner, the more comfortable they will feel about undertaking arbitration in Asia.
ALB: What are the key international arbitration-related trends you are seeing in Asia?
Rivkin: International arbitration is growing tremendously in Asia, and in Korea in particular. We have seen a change over the last few years with Asia-based companies no longer feeling the need to head to Europe or North America to conduct their international arbitrations. Similarly, parties from the rest of the world feel perfectly comfortable seating their arbitrations in Asia. The two most common seats at the moment are Singapore and Hong Kong. But we are also seeing more cases in Seoul and in Tokyo, and I think that trend will continue.
In addition, a number of countries have seen the benefits that Singapore has reaped from creating such a good venue at Maxwell Chambers. The number of people that each arbitration brings to the country – and the amount of money they spend – is very good for the economy. The Seoul International Dispute Resolution Centre (SIDRC) is definitely a part of that trend, and it will be very good for Seoul.
ALB: Could Seoul become a viable alternative to Singapore and Hong Kong for international arbitration?
Rivkin: It could be. I have been very impressed with the SIDRC’s physical facilities and technology available to the parties. For parties from civil law jurisdictions within Asia, Seoul can become a very popular venue, and this will continue to grow. It could also be a venue for common law jurisdictions, but I suspect that parties from those jurisdictions would feel more comfortable arbitrating in Hong Kong or Singapore, simply because if the dispute ends up in the courts, they will be more comfortable in an English language court there.
ALB: Are there any challenges to the growth of arbitration in Asia?
Rivkin: There are two major challenges. One is a challenge that exists worldwide: namely, that arbitration is often too long and too costly for parties who need to resolve their disputes more quickly in 21st century commerce. A couple of years ago, Debevoise & Plimpton put out the Debevoise & Plimpton Protocol to Promote Efficiency in International Arbitration, where we laid out 25 particular steps that can be taken in arbitrations to make them more efficient. A number of institutions have modified their rules to create more flexibility and tribunal control to promote more efficiency, which is a good step. But a global challenge to arbitration is to continue that trend towards efficiency and to make sure that parties can find more direct and efficient ways to resolve their cases.
A more Asia-specific challenge is that there are some countries in Asia where parties are not comfortable that awards will be enforced in the courts, and that needs to be remedied. Investors need to have confidence that they will be treated fairly and neutrally, and that an award against a party from that country will in fact be enforced if they should win one in arbitration.
ALB: What lies in store for international arbitration in the years to come?
Rivkin: I think the volume of international arbitrations in Asia will continue to grow. The strongest economies in the world are here in Asia. As Asian companies continue to expand and invest around the world, it will inevitably lead to some disputes, which will lead to more international arbitrations in Asia. More importantly, Asian businesses are becoming more knowledgeable about the rights that they may have under bilateral investment treaties (BITs), and more comfortable using them, particularly as they invest in other parts of the world. I think we will, therefore, see an increasing number of BIT claims brought by Asian parties.
ALB: It will also be interesting to see how quickly the challenges you mentioned previously will be addressed in the coming years.
Rivkin: I agree. The Asian traditions of mediation and conciliation fit enormously well into the context of finding more efficient ways to conduct arbitration. My hope and my expectations are that Asian lawyers will play a very important, if not dominant, role in helping arbitration become more efficient throughout the world.
