[Interview] The Three Things parties/counsels should keep in mind in arbitration:Ben Giaretta.
Ben Giaretta was a featured panelist at the India ADR Week 2023 Conference during his recent visit to India
FICL's Rohan Sharma FCIArb caught up with Ben Giaretta to discuss the trends or developments in the international arbitration and India's potential to become a hub for international arbitration.
About Ben Giaretta
He is the Head of Dispute Resolution at Fox Williams LLP in London. He has been working in international arbitration for over 20 years, as counsel and arbitrator. He is a Chartered Arbitrator and a member of the Board of Trustees of the Chartered Institute of Arbitrators. He is also on the Board of Directors of London International Disputes Week, and on the Advisory Board of the London Chamber of Arbitration and Mediation. Currently based in London, Ben was based in Singapore for 7 years and he has extensive experience of India-related arbitration. He has been recognized by Who’s Who Legal as a Thought Leader and a Global Leader, and as a Leading Individual by Legal 500.
FICL: Before we begin, could you please provide an introduction and tell us about the origins of your interest in the field of arbitration?
Ben Giaretta: I’m the Head of Dispute Resolution at Fox Williams LLP, based in London. I’m also fortunate to hold a few positions in the world of international arbitration, including as a member of the Board of Trustees of the Chartered Institute of Arbitration (although all views expressed here are my own).
I’ve been interested in the field of arbitration since the start of my legal career more than 20 years ago, and it stems I think from my background living in different parts of the world, and coming from a family that has roots in different places (including, via my grandmother, in India). The comity of nations and, more importantly, the interaction of individuals from different parts of the globe, hold a great fascination for me; and international arbitration is an essential part of our connected world. I’ve had tremendous opportunities as a result of my career in international arbitration: I’ve travelled to many different countries, I’ve met wonderful (and, sometimes, not-so-wonderful) people, and I’ve been involved in cases that have ranged from a dispute concerning the energy security of a nation, to a struggle to protect the livelihood of an individual. Not many careers offer such variety.
FICL: In the aftermath of the COVID-19 pandemic, when serving as an arbitrator, what fundamental measures should be implemented to guarantee the "appropriate utilization of technology" and the "equitable and transparent application of technology"?
Ben Giaretta: Fundamental is the right word, because we have seen a fundamental shift in attitudes to technology. Or perhaps it might be better to say that the change in people’s working lives as a result of the COVID-19 pandemic has accelerated a transformation that was already underway. If we take a step back, and look at arbitration now compared to arbitration twenty or thirty years ago, we can see that we are now in an age of digital arbitration, technology-assisted arbitration. And yet throughout this we must guarantee appropriate utilization of technology, and equity, and transparency, as you say. This is all part of the essential fairness that must be upheld in arbitration.
It’s difficult to specify fundamental measures when the technology is changing so fast. We are only a short step away from AI-assisted arbitration (think of written submissions and arbitration awards being prepared with the assistance of ChatGPT). Paradoxically, perhaps, the more that technology is used, the more direct human interaction might be needed, to ensure the legitimacy of arbitration. Hearings where people get together and talk about the issues in a case may be the only way to overcome the suspicion that written work has been computer-generated, and to be confident that positions taken by the parties are genuine rather than manufactured and poorly understood. So perhaps oral advocacy will be a fundamental measure in future, as well as in-person appearances by the arbitrator.
FICL: You sit on the Board of Trustees of CIArb, can you give us an insight of CIArb's future plans and where does India figure ?
Ben Giaretta: The CIArb’s mission is to be the inclusive global thought leader on dispute resolution, promoting and facilitating the creative and effective resolution of disputes, supporting diversity and inclusion and ensuring practitioners are highly trained and comply with professional standards and ethical rules. CIArb India is a very important part of that, being the flagbearer for the Institute in the country with the largest population in the world. We hope that the CIArb can play a valuable role in promoting arbitration, mediation and other forms of alternative dispute resolution in India, in particular by continuing to offer the CIArb training courses in India, and by running more events like the CIArb India conference which was held in July 2023 and was a great success. Personally, I’m very keen to see the CIArb Young Members Group (YMG) in India grow even more, because everywhere I go in India I see young lawyers who are enthusiastic about arbitration and want to develop their ADR careers.
FICL: Can you discuss any trends or developments in the international arbitration that you find particularly interesting or noteworthy?
Ben Giaretta: What I think it most notable over the past few years is the systematization of new components of arbitration: for example, new forms of expedited arbitration in arbitration rules and laws, and new routes to early dismissal of cases. While this might be seen as ossification, and a reduction in the flexibility of the process, I suspect that it is a recognition of the systemization that has been going on informally for many years now (such as the adoption of a common approach to document disclosure in international arbitration). The trend it seems is for arbitration rules to become more complex. That’s a trend of course that we’ve seen in court rules over the decades; and of course periodically there is a “reset” in court rules, with simpler versions being published. Maybe we will see something similar happen in arbitration in the future.
FICL: Having both worked on disputes in India and presided over disputes involving Indian parties, do you envision India evolving into a global arbitration hub in the coming decade? What potential challenges do you anticipate that could hinder this development?
Ben Giaretta: The future of arbitration in India depends on three factors. The first is the position of India in the world as a whole. The history of arbitration suggests that particular countries gain prominence as seats of arbitration for reasons of neutrality (for example, Switzerland, Singapore and Sweden) or because of economic importance (for example, New York, London and Hong Kong). India is too big a country for it to be cast in the role of a neutral peacemaker, but arbitration may grow as the Indian economy increasingly becomes a powerhouse.
Secondly, I have referred to technology in my comments above and the Indian technology industry has a major part to play here. Indian arbitration should tap into the technological developments underway in places like Bangalore, and be at the forefront of the new digital arbitration. India has a real opportunity to be a leader in this respect.
Thirdly, institutional arbitration must gain greater prominence. I’m not being critical of ad hoc arbitration here: it will (and must) remain an important part of Indian arbitration. But again the history of arbitration shows that it is the institutions that really drive change – through new arbitration rules, and promoting new arbitrators, and encouraging new ways of thinking. Institutions, also, are symbols of arbitration in a country. For example, there is plenty of ad hoc arbitration in Singapore, but if you ask someone outside Singapore about arbitration there it will be the SIAC that comes to their mind. If India is to be a global arbitration hub it needs institutions that are globally renowned.
FICL: What three things in your point of view sitting as an Arbitrator should parties/counsels keep in mind in their written and oral submissions?
Ben Giaretta: 1.As far as written submissions are concerned, formatting. I’m not being flippant here. Proper formatting in a document implies a proper structure; and a proper structure in a document implies (hopefully) clarity of thought, and sufficient time having been devoted to the development of arguments. I have also seen too many badly formatted written submissions, which have made it difficult for me as the arbitrator to move between different documents when writing the award. A proper index is a wonderful thing!
2. As far as oral submissions are concerned, timing. I don’t necessarily mean time management for a hearing, although that is important too (time must be appropriately allocated between the parties, and between advocates and witnesses). But make sure that sufficient time is spent on important points in your speech, while, on the other hand, don’t go on too long about matters that the arbitrators have already heard and understood already. There’s a balance to be struck. I’ve seen advocates rush to get through arguments in the closing minutes of their submissions and I’ve felt we really should have heard more about these. Equally, I’ve sat through sections of speeches wondering when the advocate will move on to the next point.
3. Above all, honesty. I’m talking here about being honest with yourself about the strengths and weaknesses of your case (I take it as read that good advocates will not lie to a tribunal). Is a particular point really worth fighting? Often, stubbornness over one bad point casts a shadow over all your good points, and a helpful concession will gain you great credit in the eyes of the tribunal.
FICL: Are there any specifics of arbitral practices that you particularly enjoy? Is there any particular practice you would recommend young lawyers should regularly engage in to become better in the field?
Ben Giaretta: This might say a lot about my character but I really enjoy getting into the detail of a case. I enjoy reading the documents, I enjoy reading the authorities. Written submissions are enormously helpful to understand a party’s position, but submissions cast light on the documents and authorities rather than vice versa. I usually read documents and authorities first before reading submissions. For the same reason I find that listening to what witnesses say in-person at the hearing is very valuable indeed.
So, relatedly, I would recommend that young lawyers should spend a lot of time reading – which outside a specific dispute includes reading caselaw about arbitration generally, and articles about dispute resolution. On top of that (and this may sound contradictory compared to my first point), I would also recommend that young lawyers spend a lot of time getting out and about, engaging with others working in the same field, at conferences and seminars and other events. There is truly an arbitration community and you need to be engaged in that in order to progress your career.