Ukrainian Bar Association held the International Conference “Kyiv Arbitration Days 2021: Think Big!”


KYIV - September 10, 2021. The Ukrainian Bar Association held the International Conference "Kyiv Arbitration Days 2021: Think Big!".

This year "Kyiv Arbitration Days 2021: think big!" brought together national and international arbitration experts online.

“Be bold!… But not reckless!”

Iryna Nazarova, Chair of the UBA Committee on Alternative Dispute Resolution, Program Coordinator of the Conference, Managing Partner of ENGARDE, opened the conference and thanked all speakers and the Secretariat of the Ukrainian Bar Association for their important contribution to the event.

Iryna Nazarova welcomed the key speaker of the event - Mr. Philip Sands, and also spoke about his considerable achievements and experience in the international arbitration in the field of natural resources, ecology, gender issues, relations between the state and investors.

Philip Sands, a law professor at University College London and a lawyer at the Matrix Bar (UK), spoke about the role of psychology in international arbitration and provided the following advice:

  1. Lawyers should put themselves in the place of an arbitrator. Today there is a tendency that law firms consider arbitration between the state and the investor as a very profitable job.
  2. Cross-examination: do not pass it on to young lawyers. Trust building is very important here.
  3. Lawyers should ask themselves questions, what are the weaknesses of the case and present them. This builds the trust of the arbitrator.
  4. Briefings: such events are not needed after meetings, it is a waste of time.
  5. Reports on the outcome of the case should not be too large.
  6. The main role of the tribunal is to respect all parties to the case.
  7. Arbitrators need to be more practical.
  8. The approach of the state-investor should always be in favor of the community, taxpayers. This is not commercial justice.
  9. Transparency of the process is one of the key elements of the functioning of the legal system.
  10. The primary responsibility of the arbitrator today is to uphold the requirements of the law.

The next session “Arbiter's Headache” was moderated by Oleksandr Martynenko, partner of Kinstellar (Ukraine). The speakers of the session were:

-          Dr. Boris Kasolowsky, Co-Chair of Freshfields Arbitration Practice (Germany)

-          Dr. Marcus Schifferl, bpv partner Hügel (Austria)

-          Louise Barrington, arbitrator, mediator, teacher, activist (Canada)

Their topics embraced the issues of low quality of representation of the party, fair treatment of the parties in the process and the question of who should decide the case - an expert or an arbitrator.

Dr. Marcus Schifferl highlighted the role of psychological science in the (unreliable) testimony of witnesses.

Decades of psychological science underscore the fragile and pliable nature of witness memory and the ease with which memories can be inadvertently ruined.

The second session, The Role of Psychology in International Arbitration, moderated by Shai Wade, partner of Stephenson Harwood LLP (UK), discussed witness testimony, the art of peaceful settlement, and the role of psychology in the credibility of witness testimony.

Speakers at the session were Yuri Parkhomenko, partner of Foley Hoag (USA, Washington), Markiyan Malskyy, partner of Arzinger (Ukraine), and Kimberly Wade, professor of psychology at the University of Warwick (UK).

Yuri Parkhomenko, partner of Foley Hoag (USA, Washington), in his report focused on important steps in the process, namely:

-          election of a witness

-          preparation of a witness statement

-          preparation for direct examination

Markiyan Malskyy identified the pros and cons of the arbitrator's participation and highlighted the following advantages:

-          increasing the efficiency and flexibility of the dispute resolution process;

-          the existence of a final binding decision (in the form of a consent agreement) that can be recognized under the New York Convention;

-          the settlement will provide the parties with security and predictability;

-          significant reduction of court costs for the parties.

Among the risks, he identified the following:

-          potential perceptible lack of impartiality;

-          there may be problems with the confidentiality of information disclosed during settlement negotiations.

Professor Kim Wade discussed some of the most relevant research findings for the international arbitration community and the practical steps that can be taken to increase the probative value of witness testimony.

The last session was devoted to the panel discussion "Novel approaches to expert testimony". The discussion was moderated by Dr. Sabine Conrad, partner of Morgan Lewis (Germany). Participants in the discussion were Bernard Hanotiau, Partner of Hanotiau & van den Berg (Belgium, Brussels), Dr. Manuel A. Abdalla, Senior Managing Director of Compass Lexecon (USA, Washington, DC), Mathias Wolkewitz, General Counsel of GmbH Holdershall Germany).

Dr. Sabine Conrad, partner of Morgan Lewis (Germany), noted that the tribunal's experts should take into account the issues of time involved in the review process, identifying areas of disagreement, and the confidentiality of the conference after the hearing.

All materials and presentations of Kyiv Arbitration Days 2011-2021 are available at the link.

We truly thank all the speakers and partners of the event ENGARDE, Asters, Ilyashev & Partners, AGA Partners, AVELLUM, Kinstellar, Patrikios Pavlou & Associates LLC. Your participation and support are very important!