For one of the first events of the year, the Alternative Dispute Resolution society had the pleasure to host Dr. Ortner from WilmerHale, who is counsel for their Litigation/Controversy department and a member of the International Arbitration Practice Group. The talk involved an overview of the “big three” of ADR; negotiation, mediation and arbitration, and the importance of ADR processes. This was followed by several questions answered in considerable detail.
The flexibility involved in ADR compared to state court litigation was highlighted as a key attraction to such processes. Focussing on international arbitration, the decision maker has much more flexibility when applying the law, and there is also much more flexibility procedurally; To illustrate, if country Y sues country X in country Y’s courts, then country X may be at an immediate disadvantage.
What was especially interesting were the numerous examples of real-life situations that Dr. Ortner shared throughout his presentation. For example, the Yukos case in Russia, which resulted in the biggest arbitration award of $50 bn, and how the impact of this ruling played out on an international level due to the New York Convention. is because the convention requires courts of parties to the convention to give effect to private agreements to arbitrate, and to enforce the results of arbitrations made in other contracting states. Dr. Ortner explained that this led to claimants effectively touring the world looking to enforce the award across various jurisdictions.
A more topical issue discussed was the impact of Covid-19 on the practice of arbitration. It is hard to see big changes occurring in times of big change, but Dr. Ortner suggested that smaller cases could more permanently move to an online format, especially for smaller cases where less money is involved, as clients will look to save costs. For bigger cases, the in-person experience cannot be replicated and so where more money is at stake, there is more of a willingness to spend for a better result.
The presentation was extremely interesting, and time really flew by. The society members would once again like to express their gratitude to Dr. Ortner for taking the time to talk to us in such an engaging manner, and for his willingness to take multiple questions.