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Ireland and international arbitration

16 Nov 2021 / Arbitration Print

The wearing of the green

Dublin is the perfect seat for arbitration in cases between a British and a European party under English law, as well as between a European/UK party and a third-country party under any common-law system. Gavin Woods and Seán McCarthy pull on the green jersey.

There is a wealth of resources in this country in terms of the provision of arbitration-related legal services. Perhaps the most important of these are its legal practitioners and domain experts.

In the international arbitration field, the main protagonists are the legal representatives (solicitors and barristers), the arbitrators deciding the cases and, in many proceedings, expert witnesses in a variety of technical fields.

As counsel, solicitors in a large number of domestic and international firms and barristers have experience representing clients across a range of different international ad hoc arbitral rule-sets and/or under the auspices of the world’s leading arbitral institutions. Many Irish lawyers have built specialist practices in the fields of international commercial, investment and/or sports arbitration.

Further, a number of Irish lawyers are actively involved in international arbitral institutions. Another key strength of Irish arbitration practitioners is the high number who currently work in the area around the world, or have done so over the course of their careers.

As arbitrator, the number of Irish legal practitioners presiding over international commercial arbitrations is increasing, with more growth possible. There were 16 appointments for Irish arbitrators under the London Court of International Arbitration rules in 2020, being the fourth highest nationality after Britain, Canada and the USA.

The same increasing trend can be seen for arbitrator appointments under the International Chamber of Commerce (ICC) rules, the world’s most-used commercial arbitration institution, where Irish arbitrators were appointed 18 times in 2020.

In the investment arbitration context, Ireland currently has four practitioners designated to the International Centre for Settlement of Investment Disputes panel of arbitrators involved in the resolution of disputes between investors and states.

In the sports arbitration field, Ireland has several practitioners who act both as counsel or arbitrator on a regular basis under the auspices of the Court of Arbitration for Sport, including Susan Ahern BL, who acted as arbitrator at the Tokyo Olympics 2020.

Ireland also possesses a very talented community of domain experts in fields such as finance, forensic accounting, engineering, construction, and intellectual property. These experts have decades of experience, not only in Irish and UK-based litigation, but also in domestic and international arbitration proceedings themselves.

The depth of expertise, in particular, in the construction and engineering sectors is very strong, borne out of a long history of domestic construction arbitration and adjudication.

Arbitration Ireland

A significant resource within the Irish arbitration community is Arbitration Ireland, a cross-sectoral association bringing together foreign and domestic members, from legal practitioners to other stakeholders such as the Chartered Institute of Arbitrators, Engineers Ireland, and the ICC’s representative in Ireland (Chambers Ireland).

Arbitration Ireland works to promote Ireland and Dublin as an international arbitration hub through its engagement with the Irish legal community, the international arbitration legal community, international arbitral institutions, and with Government.

Arbitration Ireland hosts an annual international law conference – Dublin International Arbitration Day – which attracts a mix of domestic and international lawyers. The conference takes place this year on 19 November 2021 (see www.arbitrationireland.com).

Arbitration Ireland also comprises New York and London chapters in order to tap into the Irish legal community abroad, and a young practitioners’ group whose aim is to further enhance the knowledge and experience of practitioners under 40 years of age. Arbitration Ireland is a leading supporter of the ‘Ireland for Law’ initiative, as part of the Government-supported International Legal Services Strategy.

Fair city

In terms of accessibility, Ireland and Dublin have many benefits. The first of these is Ireland’s geographical location and time zone. In an increasingly time-constrained business and legal world – post COVID-related travel restrictions – Ireland is perfectly placed for transatlantic and European disputes, given the high frequency of international flights to and from Dublin every day.

Also, given that so many international companies have their European headquarters in Dublin, there is a good reason for their own convenience why they may wish to choose Dublin as the venue for their arbitrations.

The second major benefit Ireland possesses is the legal services infrastructure available to parties. The country has dozens of law firms with deep arbitration expertise, with the latest technological capabilities and practices, including the recent influx of several large British and US firms. This allows parties with even the largest disputes to feel safe in the knowledge that their counsel are fully equipped to prosecute their case.

Thirdly, in terms of facilities, the Dublin Dispute Resolution Centre, located within the Distillery Building complex, was purpose-built to house any and all ADR processes, particularly arbitrations. It has hosted a large number of international arbitration hearings since its opening.

Aligned with the ease of accessibility, Ireland and Dublin provide the above services on a hugely cost-effective basis compared with other arbitration hubs in Europe and the Middle East. These costs savings range from more competitive hourly rates for counsel, to cheaper travel, accommodation, hearing facilities, and administrative services.

Key elements

These attributes mirror the requirements of in-house counsel, such as Karl Hennessee (Airbus senior vice-president for litigation, investigations and regulatory affairs), who views three elements as being key when choosing a seat of arbitration on behalf of an organisation.

The first is a “clearly defined and effective law (and, where needed, judicial enforcement mechanisms) to assure certainty”.

The second is a “broad population of skilled neutrals and counsel to avoid conflicts and assure respectful and efficient processes”.

The final element is the presence of “credible and broad connections to business and financial expertise that support the credibility of the arbitral process and result, and hence a return to amity after the award or settlement”.

Maria Irene Perruccio (in-house counsel for international disputes at Webuild Group SpA) says that organisations should “prefer seats of arbitration where the local law and local courts are known to be arbitration friendly, and prone to enforce and protect awards”.

Specifically, in relation to Dublin’s position, Hennessee states: “It meets all of the above criteria, both from a seat and an institutional perspective – a broad pool of experienced and decisive neutrals and counsel, deep credibility with business, and a legal and geographic environment with advantages, only further enhanced by recent political developments.”

Perruccio sees the city as being “not as expensive and busy as Paris or London, an English-speaking country [which is an advantage in international arbitration], and having an arbitration-friendly reputation in terms of its procedural law and local courts”.

Future proof

In a post-Brexit and post-COVID European landscape, the significance of Ireland’s natural advantages on the global business stage should not be underestimated. The legal uncertainty created by Brexit has had a significant impact on cross-border trade with its EU neighbours – and there is a strong argument that Ireland is strategically well placed if there is any degree of deviation from England’s traditional place as the centre of most commercial dispute resolution in Europe.

The first major attribute that Ireland possesses in this context is its inherent neutrality vis-à-vis Europe, the UK, and third countries. A common occurrence, especially in international commercial arbitrations administered by institutions like the ICC and the Stockholm Chamber of Commerce (SCC), is the need to preserve the neutrality of the proceedings by the choice of a neutral seat of arbitration in default of a choice by parties in their arbitration agreement(s).

This reinforces the significance of Ireland’s nature as both a common-law, English-speaking country, but also independent of Britain. Therefore, Dublin is the perfect legal seat of arbitration in cases between a British party and a European party under English law, as well as between a European/UK party and a third-country party under any common-law system.

Finally, as a member of the EU single market, the ease of freedom of movement for EU nationals and the ability for third-country nationals to apply and gain visas based on a long-standing system is a further advantage for arbitrations based in Ireland, versus the uncertainty and evolving regulatory situation for travel into the UK.

The importance involved in being able to secure the attendance of witnesses in person cannot be underestimated, even with the rise of virtual hearings in international arbitration. These types of strategic considerations are key to the modern practice of international arbitration, where there can be fine margins between a winning case or otherwise.

As such, Irish-seated arbitrations may present a lower-risk and higher-reward alternative for most types of dispute to be settled by international arbitration compared with a seat in other jurisdictions.

Strong case

It is clear that Ireland and Dublin present a strong case for continued growth as a centre for international arbitration over the coming years. A remaining obstacle to a large increase in arbitrations is further establishing the pipeline of international contracts with Dublin as the chosen seat.

The evolution of the legal market in Ireland with its increased international dynamic, including the growth of large Irish-based in-house legal teams in international organisations, and the number of international law firms establishing in Ireland, may accelerate that change.

It is also vital that general counsel and transactional lawyers are aware of the positive attributes that the city and country possess in this post-Brexit and post-COVID landscape when negotiating international contracts.

Those who are familiar with the benefits the country has to offer to arbitration users are undoubtedly positive about its further growth potential. Increasing knowledge about Dublin and Ireland as strong options for arbitration, then, continues to be a key element in this journey.

Read and print a PDF of this article here.

Gavin Woods and Seán McCarthy
Gavin Woods is a partner in Arthur Cox and a member of the ICC Commission, the rule-making body of the International Chamber of Commerce. Seán McCarthy is a barrister, former deputy counsel of the ICC, and current ICC Young Arbitrators’ Forum Representative