First impressions

IN the week beginning October 22, 2001, I attended, for the first time, the International Congress of Maritime Arbitrators (ICMA). Although I sat as a maritime arbitrator on a few occasions in my early days with Thomas Miller, the last of these cases was just before the foundation of ICMA by Cedric Barclay and three others in 1972. Having at long last retired from Millers, I came to this conference as what we call in England a mature student, eager to understand how things had changed in the intervening quarter of a century and to rub shoulders with the modern leaders in maritime arbitration from around the world.

This, the fourteenth ICMA, was taking place in New York with all the arrangements in the hands of the Society of Maritime Arbitrators and its new president, David Martowski, a close friend and colleague of mine during my days with Thomas Miller.

To be in Manhattan at this time was unforgettable but for a wholly different reason. Smoke was still rising from the site of the terrible events of September 11, not so very far from the Waldorf-Astoria Hotel where the congress was held. Very few of those from outside the US, who several months before had signed on to attend the conference, decided to pull out. Many of those who came made a point of saying that they were pleased to have this opportunity to be there and show solidarity with New Yorkers at this traumatic time.

The breadth of the international representation was indeed remarkable. China sent a large delegation, as did the UK. There were also delegates from Japan, India, Indonesia, Canada, Vietnam, Singapore, New Zealand, Israel, Denmark, Russia, Germany, France, Spain, Brazil, Greece, Italy, Belgium, Norway and Holland, totalling about 140 delegates in all, plus a number of their partners.

As a novice, I was impressed not only by the quality and variety of the papers but also the enthusiasm with which other delegates reacted to them

The emotions stirred by recent events were evident in a commendably brief but moving opening ceremony. Admiral Rick Larabee of the Port Authority of New York and New Jersey, and David Martowski, formally welcomed delegates, followed by an invocation from Reverend Peter Larom of the Seamen's Church Institute.

The Starlight Roof of the Waldorf-Astoria made an excellent venue for the working sessions of the conference, with delegates sitting comfortably at round tables. During each working session five or six speakers presented their pre-circulated papers on related subjects. Each speaker was restricted to ten minutes in which to summarise his or her paper, which on average would have taken perhaps forty minutes to read. Some speakers found the task of condensing easier than others, but there was no escape from the discipline of the official timekeeper who was named for each session. This was designed to ensure that in the latter part of each session there was adequate time for comments from the floor and questions to the speakers, who were gathered together as a panel.

As a novice, I was impressed not only by the quality and variety of the papers but also the enthusiasm with which other delegates reacted to them from the floor, with a lively discussion developing at the end of almost every session. In my experience it is unusual for this to happen at all in a large gathering and says a lot for the depth of delegates' interest in the subjects dealt with in the fifty-five papers that had been selected and grouped by Philip Yang, chair of the Topics Committee. It also reflected an atmosphere in which delegates were perfectly willing to stand up and speak their minds.

The scope of the selected papers was indeed impressive. Some reported on how arbitration was developing in various centres, including New York, Hong Kong, and London, where the impact of the 1996 Arbitration Act and the Woolf reforms was noted. Differences were highlighted in the way major centres addressed certain types of dispute and certain procedural issues. The growing use of other methods of dispute resolution was also addressed, with particular reference to mediation and conciliation.

Other papers concentrated on what might loosely be called procedural aspects of arbitration such as jurisdiction, security for costs, discovery, evidence, awards on grounds not advanced by the parties, the proper use of interim awards, the award of interest, and enforcement.

There was also an interesting group of papers examining how the law of Italy, Canada and England deals with issues relating to perceived bias in an arbitrator, along with papers on human rights in arbitration, which produced a heated debate.

There were learned accounts of recent decisions by arbitrators, notably in the US and France, and of progress in the development of new national and international transport laws. Interesting awards and judgments affecting charter party and bill of lading law were examined and debated, including aspects of space and slot charters, notices of readiness, the incorporation of contractual terms, vetting clauses, offhire, the identity of the carrier, pumping warranties, the rights of brokers, and consequential damages.

A cluster of papers addressing the liability of classification societies in the light of the Erika disaster and another cluster about the White Mantra and Hill Harmony routeing decisions, created some of the most energetic debates of the week.

Finally, particular mention must be made of two outstandingly interesting papers with an historical flavour. One displayed and commented on a New York arbitration award from 1826, concerning a dispute between representatives of the Greek government in exile and a New York shipyard with whom they had contracted for the building of two naval frigates. In the other, John Weale, president of the Association of Maritime Arbitrators of Canada, took an 1891 English House of Lords decision on offhire (Hogarth v Miller), examining its facts, the decisions reached and their subsequent influence on the law. It was a remarkable tour de force.

As a student of arbitration, I had ample opportunity to learn. I also had the chance to talk with the leading lights in the profession from around the world. It is invidious to mention names, but it may help to convey the quality of the event to report that the speakers' panel on the final session was made up of Bruce Harris, Jack Berg, Jonathan Lux, Michael Marks Cohen and Sir Christopher Staughton.

There are a few minor ways in which procedures might be improved at future ICMAs, however. For example, it would be useful if delegates could read the papers prior to the conference. Once the conference was under way the formal and impromptu activities put reading time at a premium. While posting a copy of the papers to all the delegates in advance would be impractical, it should be possible to have most of the material available on email or the website several weeks in advance.

One plenary session was given over to the fifth Cedric Barclay Memorial Lecture, delivered this year by the chief admiralty judge of Hong Kong, the honourable Justice William Waung. Waung presented a thought-provoking essay built around the unhappily topical theme of global terrorism. The learned speaker explained why he believes that, from now on, "we will have to live in a world where international terrorism and steps taken to suppress international terrorism will become part of our political, social, cultural and economic life". He also gave numerous examples of the part that arbitration might have to play in resolving the mass of disputes that inevitably follow in the wake of a serious terrorist atrocity. Altogether it was a weighty and timely contribution to the conference.

In addition to the working sessions there was an excellent programme of supporting events. An ICMA welcome party on the first evening was followed the next day by cocktails hosted by members of the New York Bar. The whole of Wednesday was dedicated to a trip up the Hudson River by boat, followed by lunch at the Beau Rivage and a visit to Lyndhurst. Thankfully the weather was spectacular and the scenery serene.

On Thursday, Charles S Haight Jr, senior district judge for the Southern District of New York, gave a lunchtime speech looking at the part that judges play in the arbitral process. It contained the charming mixture of wit and erudition for which this lion of the American maritime bench has become famous well beyond New York. That evening we all enjoyed a splendid formal dinner and dance in the elegant but vivacious surroundings of the Cipriani Ballroom - the social highlight of a lively week. For delegates' partners there were planned excursions every day, in and around the city.

Congratulations are due to Klaus Mordhorst and his SMA organising committee and to the International Steering Committee of Paul David (Chair), Patrick O'Donovan, Patrick Simon and Manfred Arnold, for staging so successful an event with so little fuss. The last act of ICMA XIV was to declare London the venue for ICMA XV in April 2004. Having thoroughly enjoyed the former, I look forward greatly to attending the latter.