7TH GARY B. BORN ESSAY COMPETITION ON INTERNATIONAL ARBITRATION, 2022 ORGANISED BY: Centre for Advanced Research and Training in Arbitration Law & Indian Journal of Arbitration Law, National Law University, Jodhpur  

THEMES: 

(I) Harmonising principles on joinder and consolidation:  necessity or an issue taken too seriously? 

(II) Reconciling arbitration with insolvency proceedings and  corporate restructuring 

(III) Third-party funding and disclosures in international  arbitration.

ABOUT THE ORGANISERS 

National Law University, Jodhpur 

The National Law University, Jodhpur [“University”] is one of India’s top law schools. It was  established in 1999 as part of a vision of excellence in legal education through innovative methods  of learning. The diverse student body consists of some of the most meritorious students from the  country, selected on the basis of a competitive entrance examination. The teaching faculty  comprises both young and experienced academicians who have received their education at leading  universities in India and have contributed to India’s growing body of legal academia.  

Centre for Advanced Research and Training in Arbitration Law 

The Centre for Advanced Research and Training in Arbitration Law [“CARTAL”] is established  by the University to promote research and scholarship in specialized fields of arbitration law. It  seeks to empower students with a theoretical and practical understanding of arbitration law by  providing a platform for academicians, professionals, and law students to interact and discuss  contemporary issues in arbitration law. The mandate of CARTAL is achieved by the organization  of workshops, certificate courses and guest lectures to facilitate the understanding of such issues.  

CARTAL also organises the reputed annual Gary B. Born Essay Competition on International  Arbitration and the annual CARTAL Conference on International Arbitration. For further  information, please see the report of the previous edition of the conference, available here.  

Indian Journal of Arbitration Law 

The Indian Journal of Arbitration Law (“IJAL”) is a bi-annual, open-access journal, published by  CARTAL. It is the leading Indian journal on arbitration law, with consistent focus on topics of  global interest and relevance. IJAL has successfully published ten volumes and continues to host  contributions from globally renowned experts. All the articles from the journal’s archives are  available here. It is also available on Kluwer Arbitration, HeinOnline, WestLaw, and SCC Online.  

IJAL’s Board of Advisers comprises some of the preeminent authorities in international  arbitration, including Prof. Gary B. Born, Mr. Alexis Mourre, Mr. Fali Sam Nariman, Prof.  Gabrielle Kaufmann-Kohler, Prof. Loukas Mistelis, Prof. Martin Hunter, Prof. W. Michael  Reisman, Prof. Laxmi Jambholkar, Mr. Pramod Nair, and Mr. S.K. Dholakia.  

For more information, please visit our website (ijal.in) or write to us at editors@ijal.in. 

ABOUT THE COMPETITION 

In keeping with previous years, CARTAL is organising the 6th Gary B. Born Essay Competition  on International Arbitration [“Competition”] to encourage research and literature in international  arbitration. The Competition has the gracious support and patronage of Prof. Gary B. Born, who  is the chair of the International Arbitration Practice Group of Wilmer Cutler Pickering Hale and  Dorr LLP. Prof. Born has participated as counsel in more than 675 international arbitrations,  including four of the largest ICC arbitrations and several of the most significant ad hoc arbitrations  in recent history. He is widely regarded as the world’s preeminent authority on international  arbitration, having been ranked for more than 20 years as one of the world’s leading international  arbitration advocates and the leading arbitration practitioner in London.  

The themes of the sixth edition of the competition aim to foster research on some of the  contemporary developments in international arbitration, and are listed below:  

1. Harmonising principles on joinder and consolidation: necessity or an issue taken  too seriously? 

In recent years, mounting complex multi-party disputes have presented several administrative  challenges for arbitral tribunals. To save time and costs by avoiding parallel proceedings that pose  the risk of conflicting decisions, joinder of third parties and consolidation of arbitral proceedings  have become alluring options for parties engaged in commercial disputes. Recently, arbitral  institutions through their respective rules such as, inter alia, the London Court of International  Arbitration [“LCIA”] Rules, 2020, International Chamber of Commerce [“ICC”] Rules, 2021, and  International Centre for Dispute Resolution [“ICDR”] Rules, 2021, have provided freer rein to  the parties and tribunals to enjoin parties and consolidate proceedings. Although broadening their  ambit mitigates some procedural complexities, it also gives rise to new concerns and pitfalls.  Consolidation and joinder can be questioned on basis of lack of parties’ consent, which is the very  core of arbitration. Such lack of consent or autonomy to arbitrate or choose the process of  arbitration can manifest in various forms throughout the arbitration, lasting up to the enforcement  before courts who may have diverse opinions on these unchartered questions. For instance,  enjoined parties or parties from consolidated arbitrations are often devoid of choosing arbitrators  while the other parties exercise this right. This may also form a ground for lack of equality between  parties, thereby risking an unenforceable award under Article V of the New York Convention.  Participants may analyse if the benefits and need of consolidation and joinder in today’s  complicated multi-party and multi-contract disputes outweigh these and other potential issues that  persist even under the evolving rules of arbitral institutions. Participants are also encouraged to  explore the grounds of difference between differing rules of arbitral institutions regarding the same  and investigate whether a convergence of institutional and national rules would benefit the aim of  efficient, fair and flexible dispute resolution. 

2. Reconciling arbitration with insolvency proceedings and corporate restructuring 

Insolvency law and arbitration are rooted in conflicting legal concepts. On one hand, insolvency  law seeks for a centralised approach to the determination and enforcement of parties’ liabilities.  Principles of arbitration, on the other hand, allow contractual parties to select their own forum to  resolve disputes in an entirely decentralised manner. Due to this inherent contradiction,  arbitrability of insolvency disputes is viewed differently in different jurisdictions. There exists a fundamental dichotomy between arbitration and insolvency, with the former designed to be a  private and confidential process and the latter a mostly public, national process that may serve the  interests of the public. The dilemma hinges around questions such as – should an ongoing 

arbitration be suspended upon the initiation of the insolvency proceeding? or should contractual  claims be settled through arbitration as opposed to the insolvency claims-resolution procedures?  

The advent of the pandemic has led to an increased number of corporate insolvencies in key  industries around the globe. However, insolvency and bankruptcy, per se, are mostly intra-national  matters, even though wide-ranging implications may be noted upon international transactions as  well as dispute resolution procedures. In this light, the multiplicity of national procedures as  regards insolvency proceedings is problematic, even as national jurisprudence around the world  evolves rapidly in conformity with the United Nations Commission on International Trade Law  [“UNCITRAL”] Model Law on International Commercial Arbitration 1997 in response to the  pandemic. The latest developments in this regard include the (i) New Brazilian Bankruptcy Law in  December 2020; (ii) the UK draft Corporate Insolvency and Governance Act in 2020; (iii) the  Singapore Insolvency, Restructuring and Dissolution (Amendment) Act passed in November 2020. Efforts at international co-operation and assistance also include the drafting of the IBA  Toolkit on Insolvency and Arbitration. Participants may inquire into the broader policy dichotomy  or nuances of this intersection, including issues such as automatic stays, burden of proof,  substitution of parties etc. They may also investigate the effectivity of the UNCITRAL Model Law 1997, which does not as such unify substantive approaches. In this context, assessing the viability  of unifying frameworks and their encroachment upon national policies may be explored. 

3. Third-party funding and disclosures in international arbitration. 

In recent years, there has been a rise in instances of third-party funding in arbitration, which  essentially consists of quid pro quo financial gain in the event of a successful outcome that may be  a share of damages either in the final award or the settlement agreement. Such funding eases the financial burden of the funded party, and as a result, making it possible for the party to pursue the arbitral proceeding. The funding provides an investment opportunity to the investor based on the  risk of the investment borne. The concept of third-party funding evoked mixed reactions, with  some jurisdictions legislatively recognizing it as permissible, meanwhile others considering such  agreements invalid. However, the primary dilemma faced herein is whether a funded party is required to disclose the existence and/or the terms of a third-party funding agreement to the arbitral tribunal. Recently, Rule 14(1) has been added in the International Centre for Settlement of  Investment Disputes [“ICSID”] Arbitration Rules, which provides that a written notice must be  filed by the funded party disclosing the name and address of the funder. Certain jurisdictions, such  as Singapore, also place the burden of disclosure upon the counsel as opposed to the  funded/funding party. The participants may examine jurisdictional differences, such as the funded  party’s duty to disclose the source of their funds, the extent to which such a disclosure must be  made, the funder’s rights and obligations, especially in case of an unfavourable award, the arbitral  tribunal’s powers to direct such a disclosure, and concerns of enforcement, confidentiality,  feasibility, and fairness. The participants may also suggest possible solutions which can be  harmoniously applied against the backdrop of either international arbitration or a jurisdictional  framework.

RULES OF THE COMPETITION 

• There is no registration fee for the competition.  

• The competition is open to all students enrolled in an undergraduate or post graduate programme in law (B.C.L., J.D., LL.B., LL.M., or their local equivalent) in any recognised  university across the world. Students who have completed an above-mentioned  programme or their equivalent in 2021, and post graduate students who are selected for  and will be enrolled in any such programme for 2021-2022 are also eligible to participate. 

• To participate in the competition, interested students must e-mail a copy of their  completed essays to editors@ijal.in by October 30, 2022, 23:59 hours (Indian Standard  Time, GMT +5:30). Late submissions shall not be accepted under any circumstances.  • No part of the essay should contain any form of identification of the participant.  

SUBMISSION GUIDELINES 

• The essay must be submitted in Microsoft Word document format (.doc/.docx).  • The essay must contain an abstract, not exceeding 250 words. It must indicate the theme.  • A participant can submit an entry for one theme only. Co-authorship is not permitted.  • The word limit is 4500–6500 words including footnotes.  

• The essay must be accompanied by a separate document containing the following  information about the participant: (i) full name of the participant, (ii) theme chosen, (iii)  participant’s current year of study and name of the degree pursued, (iv) name and full  address of the participant’s university, (v) name and full postal address of the participant,  (vi) phone number of the participant, and (vii) e-mail id of the participant.  

• The essay must be original and bona fide work of the participant.  

• The essay must be written in English.  

• Footnotes must follow the Bluebook system of citation (Harvard, 20th edition).  • The essay should not be submitted for any other competition and/or for any other  purposes.  

OTHER RULES 

• By entering the competition, the participants agree to indemnify the organisers from and  against all claims, suits and damages based on any claim of copyright infringement or  plagiarism or unauthorised use.  

• The essay shall be property of the University, which reserves the right of publication of  the same in any book, journal, or in any other manner as it may deem appropriate, without  providing any royalty or compensation.  

• The results of the Competition shall be announced in the last week of November 2021  (tentatively). The organizers may, at their discretion, hold an award ceremony to release  the results on the prescribed date or otherwise, alone or in conjunction with another event.  

• Any further publication after declaration of results shall only be pursued after express  permission from the organisers.  

• The winners of the Competition authorize the organizers to use their names and photos,  if required, for the purpose of publicizing the Competition and its results. 

PRIZES

First Prize • Cash prize of USD 400,  • Letter of Appreciation from Prof.  Gary B. Born,  • Signed copy of a book authored by  Prof. Born, and • An opportunity to be considered for  publication in the next issue of IJAL. 
Second Prize • Cash prize of USD 250,  • Letter of Appreciation from Prof.  Gary B. Born,  • 6-month subscription to Born’s International Arbitration Lectures,  and  • An opportunity to be considered for  publication in the next issue of IJAL. 
Third Prize • Cash prize of USD 125,  • Letter of Appreciation from Mr. Gary  B. Born, and  • An opportunity to be considered for  publication in the next issue of IJAL. 

Contact Information

In case of queries, write to editors@ijal.in.

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