Lord Neuberger of Abbotsbury placed that tension at the centre of his International Arbitration Day keynote at Inner Temple. The former president of the UK Supreme Court, now an arbitrator at One Essex Court, said arbitration remained a success story and played “a very important function in maintaining the rule of law.” But he warned that “questions of cost, delay, transparency and integrity must now be confronted if arbitration is to retain its legitimacy in an increasingly complex world".
Neuberger focused on what he called “due process paranoia”. Some proceedings, he suggested, achieved the harmony of a Bach cantata. Others resembled “Dadaist noise music”. Concerns about challenges to awards could leave tribunals “positively obsessed with procedure”, he said, amid a perception that awards faced scrutiny “in almost all jurisdictions” and “on almost all points of law”.
Looking back to practice in the 1970s, he said: “Litigation has become more efficient, or less inefficient, whereas arbitration has gone the other way”. He also addressed suspected corruption, arguing that adequate institutional rules were preferable to expecting individual tribunals to assume an investigative role.
That issue has acquired resonance following the controversial P&ID litigation heard in the High Court and Court of Appeal in recent years. Neuberger also argued that greater publication of arbitral awards could improve transparency and help develop case law, provided parties’ legitimate confidentiality concerns were protected.
The sold-out programme brought hundreds of practitioners to three hubs: Gibson Dunn, Debevoise & Plimpton, and 3 Verulam Buildings, which hosted its sessions at Inner Temple.
Across three keynotes and 12 sessions, the opening day reflected LIDW26’s theme, ‘Tradition, trust and transformation in international dispute resolution’. Panels also considered artificial intelligence, geopolitics, enforcement and arbitral procedure.
Questions of professional responsibility ran through the other keynote addresses. At Debevoise, Toby Landau KC, a barrister and arbitrator at Duxton Hill Chambers, examined how excessive public visibility may affect practitioners' standing and the confidence placed in them.
Landau described “a new era of self-promotion”. He identified a shift in his arbitral colleagues “from ability to visibility” and said arbitration lawyers had “now entered into a new era of self-promotion, in which, increasingly, lawyers and arbitrators curate their own reputations regardless of actual ability”, which he called “a worrying issue,” decrying legal directories as self-reinforcing hierarchies in the process.
At Gibson Dunn, Karyl Nairn KC, an independent arbitrator, deputy High Court judge and former global co-head of Skadden’s international litigation and arbitration group, approached the question of maintaining confidence in arbitration from the perspective of conduct and accountability.
“We have allowed behaviours to creep in that do undermine the credibility and legitimacy of arbitration,” Nairn said. While the system was “largely healthy”, she warned that its dynamism “can also cause the market to shift in directions which threaten the very fabric of arbitration.”
Nairn urged institutions and practitioners to address avoidable delay. Arbitrators who accepted appointments without sufficient capacity contributed to “unacceptable delays, and that is something which undermines the credibility of the system”, she said, arguing for clearer deadlines for draft and final awards and consequences for repeated failures.
She also warned against weak challenges pursued for tactical reasons. “If the system starts to fracture, other clients who need that system to work are going to be disadvantaged,” she said.
Like Neuberger, Nairn framed her remarks as a defence of arbitration’s strengths rather than attacking the arbitral system. “We must remain vigilant if we wish to retain the virtues of the old system.” Her final warning was wider: “If we don’t take action to protect what is most precious in international arbitration, then like liberal democracy, we will miss it when it’s gone.”
The Global Legal Post is holding a roundtable event on international arbitration with Ashurst, as part of LIDW26 at Ashurst’s London office on Wednesday, 3 June, from 2 -3:30 pm. For more details about the session and speaker lineup, visit the LIDW26 event page.
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