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Game of Venues: An ongoing tale featuring tumult beyond the Narrow Sea, the rise of dragons, and upstart challengers for the throne

The short list of favored venues for Russia-related business disputes has been relatively unchanged in recent years, notwithstanding geopolitical rifts between Russia and some of the countries hosting these venues. But how stable is that list, given the establishment of specialized English-language international commercial courts in several non-English-speaking jurisdictions, the growing realization that sanctions are not a temporary phenomenon, uncertainties surrounding Brexit, the establishment of new arbitral centers in Russia and other CIS countries, the registration of the Hong Kong International Arbitration Centre (HKIAC) and Vienna International Arbitration Centre (VIAC) as the first non-Russian institutions authorized to administer arbitrations seated in Russia, continued efforts to make Russia a more hospitable seat for international arbitrations, shifting trade and investment patterns, and the new Hague Judgments Convention, among other developments? The panelists will assess whether changes are really afoot and, if so, to what extent and in which directions.

• Peter J. Pettibone, Pettibone International ADR, New York, USA;
• John Choong, Freshfields Bruckhaus Deringer, Hong Kong;
  
• Felix Prozorov-Bastians, Graf von Westphalen, Frankfurt, Germany;
  
• Maria Gritsenko, Associate General Counsel–Litigation, VEON, London, England;
• Ed Crosse, Simmons & Simmons, London, England;
• Alexander Muranov, Muranov, Chernyakov & Partners, Moscow, Russia;

Interest can comprise a substantial portion of an arbitration award, but the ability of any tribunal to award interest at a commercial rate rests on the submissions of the parties.  All too often interest is treated like an afterthought, perhaps because it is not necessarily understood by those who plead for it, let alone those who have to rule on it.  How many times have we all seen submissions with the vague request for “interest at such a rate and such a period as the tribunal finds justified”?  Likewise, parties often fail to think strategically about how positions taken early in a case may ultimately affect the recovery of costs. This session will address these “non-core” components of damages and how to maximize their return. 

Speakers:

• Laura Hardin, Alvarez & Marsal, Houston, Texas, USA
• Lisa M. Richman, McDermott Will & Emery, Washington DC, USA;
• Olga Boltenko, Fangda Partners, Hong Kong;
  
• Doran Doeh, 36 Stone, London, UK
  

In both arbitration and litigation, critical evidence is often in the hands of non-parties – sometimes located abroad – that are reluctant to provide it, whether due to privacy concerns, regulatory restrictions, or loyalty to their own customers or clients. Examples include:

• documents pertaining to beneficial ownership of entities domiciled in “offshore” jurisdictions;

• emails and phone records in the possession of third party carriers or internet service providers (ISPs); and

• records from financial institutions.

The panelists will share their experience with obtaining such information, including navigating conflicting domestic laws in a cross-border context, and also invite the audience to share their own experiences. 

Speakers:

• Steven M. Richman, Clark Hill, Princeton, USA;
  
• Alexander Popelyuk, Lidings, Moscow, Russia;
  
• Richard Brown, Carey Olsen, London, UK;
  
• Elena Mazetova, Petrol Chilikov, Moscow, Russia
• Kathleen Paisley, Ambos Lawyers, Antwerp, Belgium

This interactive session will provide a practical perspective on obtaining and defending against interim relief. After a short presentation of one example in the form of the Swiss protective brief – which is an ex parte court submission for an attachment or other interim measure – the session will address similar tools available in other jurisdictions. The special case of obtaining emergency relief where the parties have an arbitration agreement will also be considered. The session will address not only obtaining interim relief, but also defensive maneuvering to prevent provisional measures from being applied.

Speakers:

• Alexander Troller, Lalive, Geneva, Switzerland;
  
• Kendall Coffey, Coffey Burlington, Miami, USA;
  
• Peter Ferrer, Harneys, British Virgin Islands;
  
• Artem Doudko, Osborne Clarke, London, UK;

The contemporary system of investor-state dispute settlement is in the midst of a heated debate. More elaborate substantive and dispute settlement provisions are being included in recent treaties, and there are discussions about modernizing some multilateral treaties, such as the Energy Charter Treaty. The European Union also continues to promote the idea of a permanent and multilateral investment court. This session will provide an update on the latest developments, exchange views on the modernization of investor-state dispute settlement mechanisms and discuss the position that CIS countries take in the ongoing controversies, including global trends in investment treaty drafting and the modernization of existing treaties; the pros and cons of a permanent investment court; what next for the Energy Charter Treaty after ACHMEA; and the approach of CIS countries to the new generation of investment treaties, among other topics. 

Speakers:

• Richard Happ, Luther, Hamburg, Germany;
  
• Anna Kozmenko, Schellenberg Wittmer Ltd, Zurich, Switzerland;
• Fredrik Ringquist, Mannheimer Swartling, Moscow, Russia;
• Olga Tsvetkova, Ministry of Justice, Moscow, Russia;

Even as Central Asia is increasingly pulled between East and West, Kazakhstan is developing its own unique voice and role in international dispute resolution. Kazakh parties are prominent players on the international arbitration scene, the Astana International Financial Centre (AIFC) Court opened with a splash in 2018, and the Kazakh courts are deciding sophisticated business disputes involving foreign parties. This session will explore these and other recent developments and trends in Kazakhstan. 

Speakers:

• Bakhyt Tukulov, Grata International, Almaty, Kazakhstan
• Alexander Korobeinikov, Baker & McKenzie, Almaty, Kazakhstan
• Aisha Manapova, Assistant Registrar, International Arbitration Centre, Nur-Sultan, Kazakhstan
• Mukhit Yeleuov, Partner, Kinstellar, Almaty, Kazakhstan

A consensus seems to be emerging with respect to the proper role of tribunal secretaries, with several arbitral institutions now having published guidelines on the subject. Nevertheless, concerns that overloaded arbitrators may allow tribunal secretaries to overstep their bounds continue to haunt the arbitral process. This session will address the following topics, among others:

• What is the emerging consensus regarding the use of tribunal secretaries, and is that consensus satisfactory?
• What questions should counsel ask prospective arbitrators about tribunal secretaries?
• When might the use of tribunal secretaries threaten the enforcement of an award?
• How can arbitrators most effectively use tribunal secretaries?
• Does the expanding use of tribunal secretaries simply represent a “Band-Aid” on the broader issue of overuse of a small cadre of popular arbitrators?

• Katherine Simpson, Simpson Dispute Resolution/33 Bedford Row Chambers, Ann Arbor, USA;
  
• Dmitry Marenkov, Germany Trade & Invest, Cologne, Germany;
• Dominic Pellew, Dentons, London, UK;
• Shirin Saif, Roschier, Stockholm, Sweden;

This session will address how various jurisdictions have approached requests to attach the assets of CIS states and CIS state-owned enterprises, including cases involving Russian, Ukrainian, Kazakh, and Uzbek parties. The case studies will not only serve to illustrate how different jurisdictions approach the issue of enforcement against sovereigns and state-owned enterprises, but also the experience of CIS state entities in foreign courts more generally.

Speakers:

• Ulf Hårdeman, Advokatfirman Delphi, Stockholm, Sweden;
  
• Gene Burd, Arnall Golden Gregory LLP, Washington DC, USA;
  
• Dmitry A. Pentsov, Froriep Legal SA, Geneva, Switzerland;
• Ivan Urzhumov, Foley Hoag, Paris, France;

This session will address legal privilege and disclosure obligations in various jurisdictions, which is an important topic affecting not only what documents you may have to disclose between litigating parties but also when demanded (including search and seizures) by state investigative bodies. The session will also address criminal investigations as a disclosure/discovery tool.

Speakers:

• Mark Brown, Bristows, London, UK;
  
• Oksana Wright, Fox Rothschild LLP, New York, USA;
• Vassily Rudomino, Alrud, Moscow, Russia;
• Johannes Hertfelder, Gleiss Lutz, Stuttgart, Germany; 

This program follows up on last year’s “Soft Skills” session, exploring some of the skills in oral advocacy that are most often acquired from mentors or personal experience, rather than reading text books or law journals. These are the kinds of thingsfor which no specialized legal knowledge is required, but that every advocate should know, including establishing the right psychological frame of mind for oral advocacy; the physical components of oral advocacy (no, not “trial by fisticuffs”, but how to stand, gestures, “looking the part”, etc.); finding your “voice”; effective use of visual aids, and more. A cross-jurisdictional panel of advocates will share some of their favorite tips and solicit others from the audience.

Speakers:

• Rupert D’Cruz, Littleton Chambers, London, UK;
  
• C. William Phillips, Covington & Burling, New York, USA;
• Maxim Kulkov, Kulkov, Kolotilov & Partners, Moscow, Russia;
• Huawei Sun, Zhong Lun, Beijing, China;

Bifurcation is common in international arbitration, with such discrete issues as jurisdiction, damages, and applicable law, among others, being hived off for early determination by the tribunal with a view toward streamlining the process or possibly even disposing of the arbitration altogether. But does bifurcation necessarily promote efficiency? This session will address when bifurcation is useful and when it’s not, along with tactical considerations for counsel and due process and efficiency considerations for neutrals.

Speakers:

• Peter M. Wolrich, Curtis, Mallet-Prevost, Colt & Mosle LLP, Paris, France;
  
• Tatiana Minaeva, RPC, London, UK;
  
• Christoph Brunner, Peter & Partners, Bern/Geneva, Switzerland;
• Andrey Panov, Norton Rose Fulbright, Moscow, Russia;

So you “won” your case, now what do you have to show for it?

Too often, practitioners focus on liability issues and leave damages for the end. That is a mistake.  This session will explore the approaches of various jurisdictions to remedies in litigation and arbitration for breach of contract, including differences between “reliance” and expectation/lost profit damages, the scope and enforceability of contractual limitations on damages (including “indirect” damages), and non-damage remedies, such as specific performance.  

Speakers:

• Grant Hanessian, Baker & McKenzie, New York, USA;
  
• Nastya Malyugina, PricewaterhouseCoopers LLP, London, UK;
• Grigory Galkin, Marks & Sokolov, Moscow, Russia;
• Simon Davenport, 3 Hare Court Chambers, London, England;
  

• Glenn Hendrix, Arnall Golden Gregory LLP, Atlanta;
• Roman Zykov, Mansors, Moscow.