A Report on Boston International Arbitration Day 2020

Malgorzata Mrózek, Fitch Law Partners

BOSTON, MA -- On February 28, 2020, the first annual Boston International Arbitration Day took place in Boston, Massachusetts. The program was organized by the Boston International Arbitration Council (“BIAC”) and hosted by Ropes & Gray. Co-sponsors included the American Arbitration Association International Center for Dispute Resolution (“AAA-ICDR”), United States Council for International Business International Chamber of Commerce (“USCIB ICC”), Thompson Reuters, Silicon Valley Mediation and Arbitration Center, and JAMS.

Daniel V. Ward, a partner at Ropes & Gray, BIAC Advisory Board member and chair of the Internatioanl Arbitration Day organizing committee, welcomed the over 80 attendees to the afternoon’s programming.

Jared L. Hubbard, a partner at Fitch Law Partners and President of BIAC, opened the conference by explaining the impetus for the day’s conference and the creation of BIAC. Mr. Hubbard described the mission of BIAC, which was formed in 2018 to promote international arbitration in Boston and Boston as a seat for arbitral proceedings. To accomplish these goals, BIAC hosts events on various topics in international arbitration, puts forth efforts to make Boston a better venue in which international disputes can be heard, works with end users to seat international arbitrations in Boston and include arbitration clauses in contracts, and organizes trainings on international arbitration.

The conference’s first panel, moderated by Merriann Panarella, an independent arbitrator and BIAC Director, focused on “Why Boston” as a seat for international arbitration. The arbitral seat determines which courts will provide judicial assistance, if necessary, and award enforcement.

Mark Sullivan, Executive Director of the Massachusetts Office of International Trade and Investment (“MOITI”), explained the advantages of Boston as a venue. Boston’s size makes the experts at the world-class Boston universities, law and expert firms easily accessible. The Boston-area is a global leader in education, life sciences, artificial intelligence, cyber security, financial technology, clean energy, advanced manufacturing, and maritime. The city’s universities churn out one of the most educated workforces in the nation, and Boston’s many international students link the city to the rest of the world. The city and state support the innovators of Boston by creating physical and intellectual spaces for them to grown and innovate. The forward-thinking culture of Boston make it a great venue in which to seat international arbitrations.

Ben Bradford, Vice President of Membership at the Massachusetts Biotechnology Council (“MassBio”), highlighted that MassBio, a non-profit organization founded to advance Massachusetts’ leadership in the life sciences industry, has over 1400 organizations as members. These organizations range from large companies, to mid-sized, to small start-ups developing new technologies. Many internationally based companies are opening offices in Massachusetts, which demonstrates the region’s global impact in the life sciences sector.

Jessica Sblendorio, an associate at Haug Partners, Treasurer of BIAC and member of BIAC’s Legislative Committee, gave an overview of BIAC’s legislative efforts. The BIAC Legislative Committee researched the laws of other states working to bring international arbitration within their borders, including California, Texas, Georgia, Florida, and New York. Using this research, the committee determined that key issues which future legislative efforts will focus on include: (1) confidentiality, of both proceedings and enforcement efforts; (2) costs; (3) whether Massachusetts should have a special court for international arbitration disputes; (4) the ability of foreign lawyers to represent their clients in Massachusetts-based proceedings; (5) attaching assets; (6) enforcement of interim awards; (7) third-party funding; and (8) expert determinations. There is currently a bill which updates the Massachusetts Uniform Arbitration Act working its way through Beacon Hill, however most of the updates focus on domestic arbitration.

Edward J. Kelly, a partner at Ropes & Gray, stated that the key way to have more arbitrations seated in Boston is to name Boston as the arbitration situs in contracts when they are drafted. This means that the people drafting the contracts need to know about the benefits and reasons for naming Boston as the seat of arbitration. One such benefit would be having easily accessible spaces in which to have arbitral proceedings. These spaces can cater to needs of parties in a proceeding, including having secure break out rooms, access to technology, and facilities with flexible hours.

Tiago Duarte-Silva, a testifying expert at Charles River Associates (“CRA”) and BIAC Advisory Board Member, explained the results of the survey conducted by CRA about international arbitration in Boston. The CRA survey showed there is a great deal of growth potential for international arbitration in Boston. The majority of the survey participants said they had participated in 1-5 arbitrations in the past year, but only 6.4% of those were international arbitrations, with the remainder being domestic. As international arbitrations have greater legal costs and fees than domestic arbitrations, increasing international arbitrations in Boston would bring economic gains to the area.

William W. Park, Professor of Law at Boston University School of Law, prominent international arbitrator, a

nd Co-Chair of BIAC, introduced the keynote speaker.

Christopher Gibson, Professor of Law, Director of the Business Law and Financial Services Concentration at Suffolk University Law School, and BIAC Advisory Board Member, gave the keynote address entitled “Exercising Opportunities for Control in International Dispute Resolution.” International arbitration allows users to maximize value while minimizing risk in dispute resolution with foreign commercial partners, by giving the parties control over various aspects of the arbitral proceedings. Parties can have the certainty of a single, central, neutral forum, select arbitrators with experience relevant to the issues in dispute, exercise a measure of control over the proceeding procedures, have potentially speedier resolution, ensure privacy and confidentiality, and be confident the award is final, binding, and enforceable.

The conference’s second panel, moderated by Kathleen Paisley, a partner at Ambos Lawyers in Brussels, was dedicated to discussing the “Diversity of Practice” in Boston. The panel included in-house counsel from Boston-area corporations discussing how international arbitration is used by the city’s industries.

Roland Schroeder, Global Executive Litigation Counsel at General Electric, said that most contracts are negotiated by non-lawyers, who are given a “cookbook” of acceptable and unacceptable clauses to include. He explained that during contract negotiations, companies do not want to waste negotiation capital on debating arbitration seat location, and international customers prefer arbitrations seated locally for them.

Miguel Carrillo, Vice President and Senior Counsel, International at Iron Mountain, explained that the dispute resolution clause depends on the country in which the commercial partners are located. The nation’s legal system, corruption issues, and type of contract are factors which determine whether international arbitration will be selected or the company will instead use a choice of law provision. Mr. Carrillo also discussed mediating disputes, particularly if required by law, and that early mediation can lead to the successful resolution of claims.

Sharon Jones, Senior Counsel at Raytheon, described the process of selecting arbitrators as being collaborative with outside counsel, and consideration of the actual conflicts in the dispute, whether the issues are novel or industry specific, and how the other side might view the arbitrators. In-house counsels are also looking to diversify the arbitrators they are selecting.

Chris Allen, Vice President, Head Counsel, U.S. Litigation and Investigations at Takeda, echoed the collaborative nature of arbitrator selection. He stressed his reliance on outside counsel’s knowledge about arbitrators, since, unlike in judicial proceedings, arbitrators do not have easily accessible past rulings and opinions which allow a glimpse into how an arbitrator is likely to resolve a dispute. Mr. Allen added that one of the benefits of newer arbitrators is their willingness to roll up their sleeves and really dig into the case before them.

Conna Weiner, JAMS mediator and arbitrator and Vice Chair of BIAC, gave three top tips for efficient arbitrations: (1) mediate first; (2) do not used the federal rules of evidence or civil procedure in the arbitration; and (3) have a set time period between the filing of a demand for arbitration and final award in the dispute resolution clause. These tips will allow international arbitrations to proceed more smoothly and efficiently.

The panel concluded with a few rapid-fire question and answers about what the most important skills for mediators and arbitrators and how to get more business as arbitrators. The panelists agreed that diligence, listening skills, strong case management, and persistence were key skills for mediators and arbitrators. Being involved in arbitral institutions, professional networks, and legal organizations is the best way to get business as arbitrators.

The program took place on February 28, 2020 at Ropes & Gray in Boston, MA, and was

organized by BIAC and Ropes & Gray. The event was supported by American Arbitration Association International Center for Dispute Resolution (“AAA-ICDR”), United States Council for International Business International Chamber of Commerce (“USCIB ICC”), Thompson Reuters, Silicon Valley Mediation and Arbitration Center, and JAMS.

Malgorzata Mrózek an associate at Fitch Law Partners LLP, focuses her practice on business litigation and international disputes.