David W. Rivkin, past president of the International Bar Association, told attendees recently at the University of Miami School of Law’s Annual White & Case International Arbitration Lecture that the pandemic has highlighted the best and worst in society and has also accelerated technological and cultural shifts that may have taken years to develop.
“We have certainly seen that trend in our practice of international arbitration,” said the co-chair of Debevoise & Plimpton’s International Dispute Resolution Group in his lecture “Post-Pandemic Arbitration: Will It Be Contact-Free?” All this change may have happened eventually, but it has instead occurred with lightning speed this year, showing flexibility and resilience of the field. We can be sure that when life returns to some version of normal, the conduct of international arbitration will be different.”
The lecture was hosted jointly by Miami Law’s International Arbitration Institute and White & Case International Arbitration LL.M. Program. The program, under the guidance of Carolyn B. Lamm, J.D. ’73 and distinguished faculty chair of the program, provides a unique individualized curriculum for a small group of top-quality students from around the globe who wish to acquire in-depth knowledge and skills in the field of international commercial and investment arbitration as a platform for a successful career.
“The world of international arbitration moved rapidly to adapt to the pandemic,” said Lamm, a partner of White & Case LLP. “These annual lectures have always focused on cutting-edge issues of international arbitration. And in this, David did not disappoint. Without doubt, David is a thought leader. He provided us with macro-view and synthesis of the lessons learned and all of the changes we witnessed globally in the field in 2020 – and potentially enduring change we can expect to see.”
A litigation partner in the firm’s New York and London offices, Rivkin has broad experience in the areas of international litigation and arbitration and public international law. He is consistently ranked as one of the top international dispute resolution practitioners in the world, and he has won some of the largest commercial and investment treaty arbitration awards. Rivkin also represents companies in transnational litigation in the United States, including the enforcement of arbitral awards and arbitration agreements.
As past president of the IBA – whose membership includes more than 100,000 members and 200 bar associations – Rivkin was the first American to serve in that position in 25 years. Rivkin is a member of the International Council of Arbitration for Sport, which supervises the Court of Arbitration for Sport, on which he has served for 20 years. He is also deputy president of ICAS’s Anti-Doping Division and co-chair of the Hong Kong International Arbitration Centre. He currently serves in leadership positions on the Australian Centre for International Commercial Arbitration, the Mumbai Centre for International Arbitration, the Mauritius Arbitration and Mediation Centre, and the Russian Arbitration Centre.
“This accelerated change is a great opportunity,” said Jonathan C. Hamilton, distinguished faculty chair of the institute and partner of White & Case LLP. “It will be up to the students, the next generation, to embrace this change and lead the way forward.”
After graduation, the LL.M. program provides options for students to sit for the bar exam in several U.S. states, including New York. Miami Law also offers an Intensive Legal English + International Arbitration LL.M. study option as well as a J.D./LL.M. Joint Degree in International Arbitration. Various scholarships are available for study in the White & Case International Arbitration LL.M., including two full-tuition awards: the Carolyn Lamm/White & Case Scholarship and the Young ICCA Scholarship. The institute, under the guidance of Hamilton, the institute’s distinguished faculty chair, is an embodiment of the University of Miami’s long tradition of engagement with the law of arbitration and strives for progress through research in international arbitration.
“The past year has presented truly novel challenges to our practice. And as we move forward, slowly, towards a post-pandemic future, we will meet a new landscape, not a simple return to what came before,” said Rivkin. “It would be a mistake, as the pandemic subsides, to simply restore our prior status quo, without incorporating the lessons we have learned and putting to use the technologies and efficiencies that have allowed us to continue our practice remotely.
“An important point of every initial procedural conference will be to consider which hearings in the case should be held in person and which may be held virtually, considering issues of fairness, equality and efficiency, as well as the applicable law, rules and arbitration agreement. Finally, in the future—including in cases that are currently pending—arbitrators will need to assess how the volatility of this moment should impact the assessment of damages, including choosing the valuation date and right methodology,” he said.
“Most importantly, new technology should lead to broader procedural innovations in the conduct of international arbitrations. For years, I have encouraged parties and tribunals to focus only on what procedure is necessary for that particular case and not to use standard procedural orders. The ability to conduct hearings virtually, without the time and cost involved in travel, should make it much easier for tribunals to order procedures that are appropriate for each particular case and to be much more proactive than many arbitrators are today, including implementing decision-tree arbitration, regular check-ins and better document management,” said Rivkin, summing up the lessons of arbitrating in 2020.