YAAP May Newsletter

Click here to view it online

Dear Members and Friends,
We hope you are all keeping well and counting down the days to summer and that vaccination appointment! We have a few dates for your calendar below, all events foreseeably online. We do hope to start our arbitration walks and talks again – once restrictions are officially eased and the weather realises that it is actually spring!
SAVE THE DATE: YAAP case law update, 27 May 2021, 17:30, webinar: Nicolas Zenz (KWR Karasek Wietrzryk Rechtsanwälte GmbH, Vienna), Katherine Bell (Schellenberg Wittmer, Zürich) and Moritz Schmitt (rothorn legal, Frankfurt) will provide us with an update on the most recent, interesting and relevant Supreme Court decisions for our arbitration practice. The trio will give us input from their respective jurisdictions. More details to follow. You can already sign up here.
SAVE THE DATE: What role does arbitration play in the context of environmental, social and governance issues, in particular climate change? Find out more on 17 June 2021 during our climate change webinar with Amanda Neil (Freshfields, Vienna). More details to follow very soon.  
POSTPONED AWAK-Seminar - Arbitration (“AWAK Grundlagenseminar Schiedsverfahren"): new date 10/11 September 2021.
Request from VIAC: VIAC is inviting YAAP members to provide translations of decisions of the Austrian Supreme Court into the English language. YAAP members who provide such translations would be named as author and the English translations will be published on the VIAC’s website at: Judikatur - Vienna International Arbitral Centre (viac.eu)
If you are interested in getting involved, please contact Christian Koller.
We are eager to continue our series Meet Your YAAP-colleagues. This initiative aims to keep introducing new members to our community in times of social distancing. Please do not be shy and send us a short (2-3 minutes) selfie video, explaining who you are, what brought you to arbitration and what you like/dislike about it. Feel free to add anything important to you, as long as you stay within your 2-3 minutes. We are looking forward to receiving many videos!

Please find the video of our YAAP-colleague, Marija Dobric (Binder Grösswang) here. Thank you Marija for your contribution and we look forward to meeting you in person soon!
Don’t forget to read the reports on past events further below and a special update on White-Collar Crime and Arbitration. 
Best regards,
Christian & Niamh

Follow us on LinkedIn

Past events:
REVIEW: Young Approaches to Arbitration, 27 March 2021: In the run up to the 28th Willem C. Vis International Commercial Arbitration Moot the annual joint ICC YAF and YAAP event took place.  The opening remarks were given by Dr Maximilian Burger-Scheidlin, ICC Austria, Vienna and Christian Koller and Emmanuel Kaufman introduced the event – with Christian providing a beautiful Vienna backdrop. The discussion about whether joinder in arbitration up to the challenge was discussed in detail by Angélica André, White & Case, Paris and Mladen Stojiljkovic, Vischer, Zurich and Eleonore Toupart, ICC [TBD] and expertly moderated by Ben Steinbrück, SZA Schilling, Zutt & Anschütz, Mannheim. The panellists provided useful examples from their practice. The panellists provided useful examples from their practice. They managed to discuss highly complex problems arising out of the joinder of third parties from a comparative law perspecitive including an analysis of the instruments existing in state court and arbitral proceedings. The discussion yielded fruitful results and touched upon the intricacies of drafting arbitration clauses for multi-party disputes. We are very grateful to the speakers for their outstanding contributions.
REVIEW: YAAP Mind The Gap - Online Lunch, 18 February 2021: Our first joint event with the Young Arbitrators Sweden (YAS) was a great success. It was attended by an astounding 70 participants, particularly impressive given the extent of webinar fatigue after one year of the pandemic. Niamh Leinwather opened the event – her first event as co-chair of YAAP. Silvia Dahlberg represented YAS and introduced the excellent moderator, Duncan Speller, Partner, WilmerHale, London. Thomas Herbst, Senior Associate, Zeiler Floyd Zadkovich, Vienna and Elisabeth Rath, Associate, Knoetzl, Vienna provided a very thorough synopsis of the Austrian perspective including issues such as the estimation of loss (§ 273 ZPO). Anina Liebkind, Partner, Norburg & Scherp, Stockholm and Henrik Fieber, Judge, Stockholm district court and independent arbitrator gave the Swedish view. The panellists entered a lively discussion of issues faced in both jurisdictions and there was a general consensus that a gap can be an opportunity for an advocate to steer the case in a particular manner. Many thanks to YAS for their efforts in making this event such a success and to our esteemed Austrian speakers for their impressive preparation and great delivery.
UPDATE to the Virtual YAAP Roundtable, White-Collar Crime and Arbitration, 23 November 2020: Laura Nienaber (White & Case) and Oliver Loksa (Hausmaninger Kletter) analyzed how internal investigations impact arbitration proceedings. Given that internal investigations may increase the risk of creating detrimental evidence, one of the main topics discussed was how arbitral tribunals should deal with evidence that was (potentially) obtained by illegal means and (intended to be) introduced into the arbitral proceedings. In this regard, we would like to make you aware of recent changes implemented in the IBA Rules on the Taking of Evidence in International Arbitration, published on 17 February 2021. Article 9.3 thereof now explicitly provides that: “The Arbitral Tribunal may, at the request of a Party or on its own motion, exclude evidence obtained illegally.” Thus, said provision now explicitly gives the tribunal the power, at the request of a party or on its own motion, to exclude evidence that has been illegally obtained.
However, uncertainties remain. In particular, the obvious question arises, when, i.e. under which law, evidence will be regarded as illegally obtained, given that different jurisdictions have different approaches. Interestingly, the Commentary on the revised text of the 2020 IBA Rules explicitly points out that the 2020 Review Task Force contemplated specific circumstances under which evidence should be excluded. However, there was no clear consensus given variations in national laws, which is why the IBA Rules state that an Arbitral Tribunal “may” exclude such evidence. Said Note does, however, highlight two interesting issues:
  1. As to the applicable law, it mentions that a recording may be considered illegally obtained and thus excluded from the evidence, if the law of the country where the recording of a conversation was made prohibits recording conversations without permission of those involved. Thus, the emphasis is placed on the country where the evidence was obtained, although this is mentioned only as an example, thus leaving the door open for other scenarios. 
  2. The Note also provides guidance to arbitral tribunals as to what criteria to apply when assessing whether the evidence qualifies as illegally obtained; it refers to the clean hands-doctrine, proportionality considerations, whether the evidence is material and outcome-determinative, whether it entered the public domain through leaks and the clarity and severity of the illegality. 

While the above mentioned considerations are certainly helpful, it will be interesting to see, how the newly introduced provision will be applied in practice. Many thanks to Oliver and Laura for providing us with this update!

Österreichische Vereinigung für Schiedsgerichtsbarkeit 
Sterngasse 13 
A-1010 Vienna, Austria 
Tel: +43 1 534 80 – 374 
Fax: +43 1 534 80 - 8 
e-mail: info@yaap.at
Visit our Website

© Arbitration Austria