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Philippa Charles spoke at the 2019 Vienna Arbitration Days event on 1 and 2 March 2019. The Vienna Arbitration Days is an annual event organised by a number of the key arbitral institutions, including UNCITRAL, the Vienna International Arbitration Centre and the ICC, as well as their Austrian committees and members. This year, it attracted more than 200 delegates to the Palais Niederosterreicher in Vienna for a two-day conference focused on the interaction between the sciences and arbitration.
Philippa spoke on the first panel of the day, which addressed the importance of psychology in arbitration. The panel went beyond the questions of unconscious bias to look at the part played by the national cultures of the participants, their “home” legal cultures and the imprinting that that generates on their approach to issues of foreign law. The session also discussed the part played by the way in which propositions are framed in arbitration in terms of their persuasiveness. Frequently, in cross-border disputes, the participants think of themselves as “cultural chameleons”, able to determine a civil law problem correctly even when they are common lawyers themselves.
The panel concluded that cultural hard-wiring, whether national or legal, is harder to overcome than we appreciate. At the point where issues cross over from procedural to substantive matters (such as, for example, the treatment of witness testimony) our hard-wiring may prevent us from reaching a truly independent view of the matters in issue, or of the witnesses’ attitude, conduct or approach. One way to test our assumptions is the use of “mock” arbitration providers, which try to mirror the composition of the Tribunal and then assess the mock Tribunal’s response to the arguments being raised. In US patent proceedings, the use of mock panels generates a correlation of 85% between the mock hearing outcome and that in the real proceedings, so there is demonstrable benefit to be obtained from such exercises.
Further sessions focused on the use of maths in arbitration, both in the development of products such as e-disclosure tools and also in the calculation of quantum in complex cases. Other topics included the effects of unconscious bias more generally and how that is to be combated. This included a discussion about the way in which data-driven analytics products may change the composition of tribunals by providing a data-based analysis of a tribunal’s likely approach to issues which should help parties better to select the “right” tribunals for their cases.
A “World Cafe” session on Saturday involved table-based discussions on numerous other science and technology issues, which pose equal challenge and opportunity for participants in arbitration.
Overall, the conference was an opportunity to learn more about the science underpinning what we do, and how best to adopt and harness new developments to assist our clients in the conduct of proceedings.
Global Arbitration Review published a summary of the conference which Philippa contributed to. This can be found here (subscription required) – Psychology and unconscious bias explored in Vienna
Further information about the conference, including the full agenda, can be found here.
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