"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, July 7, 2020

International Arbitration: In the Age of the Technological Revolution - Volume 1 (2020)

One, the book deals with a unique subject-matter. It deals with the interface between international dispute resolution and technology, and covers topics such as cryptocurrencies, blockchain, and artificial intelligence.  According to the Book Description:

"The first volume of the International Arbitration Collection in the Age of the Technological Revolution addresses the future (and the present) of arbitration, relating it to topics such as compliance, cryptocurrencies, startups, blockchain, and artificial intelligence. Most interestingly, this vision of technological revolution and arbitration is presented by authors from almost every continent, as there are opinions from professionals from Australia, Brazil, Spain, France, India, Portugal, Singapore and Switzerland. Several questions are formulated and answered by the authors in order to allow the reader a better understanding of how technology and arbitration already connected and they will increase their connection.
This is an extremely interesting book for anyone who wants to know more about arbitration, technology, or their interaction."

Two, the book contains a paper titled "Start-Ups & International Dispute Resolution: Challenges & Possible Solutions" penned by this blawgger, which deals with the challenges faced by Start-Ups in engaging with international arbitration. The paper also provides explores various solutions  to the common problems that start-ups face while fighting an international arbitration. Summary of the paper is as below:

"Globalisation as a phenomenon has encaptivated the world in the last part of the 20th century leading to the rise of a global service sector, where services could be offered across national borders. These factors have acted as catalysts in bringing forth a start-up revolution world over. Several start-ups have become great success stories.

The legal services industry world over has changed its approach to cater to start-ups and has adapted itself to the demands of a start-up. Even so, dispute resolution especially in the international sphere, has not been so forthcoming to provide legal services appropriate for start-ups. Start-ups face unique challenges in the context of international commercial dispute resolution. Already strained of funds, a cross-border dispute is a nightmare and might even result in shutting shop for the start-up.

This short paper identifies challenges faced by start-ups in resolving their international commercial disputes and offers possible solutions to these issues. To this end, the paper is structured in the following manner: Part II discusses the concept of a start-up. Different jurisdictions define start-ups differently. Since the scope of the paper is not constricted to a definite jurisdiction or region, start-up is defined in a general manner. Part II addresses the issues faced by start-ups in international dispute resolution, which is the primary focus of this paper. Part III offers possible solutions to these problems. Part IV concludes."

The paper concludes by putting forth the following points:

"Arbitral institutions are the centrepiece of international arbitration and significant reforms in the area have emanated from them. Hence, they should take the lead and formulate rules tailor-made for start-ups. Such rules could define start-ups and provide that in case disputes involved start-ups, certain special provisions such as appointment of sole arbitrator instead of a three member tribunal, documents-only arbitration, etc. would apply, with opt-out mechanisms. 

Internally, start-ups should put in place robust governance mechanisms and internal policies. This will aid them in not only putting forth their case well in a dispute but also ensure better governance. Start-ups should also negotiate with their clients for favourable dispute resolution and confidentiality clauses. Disputes between warring founder partners of a start-up also derail its case in legal proceedings, especially international arbitrations. Suitable systems / agreements should be put in place in consultation with lawyers to address possible future disputes between co-founders. 

All said and done, it is critical for start-ups to realize the importance of getting legal advice. There are umpteen legal issues that could crop up unexpectedly and have disastrous consequences. Therefore, it is crucial to have legal advice, preferably in-house legal counsel, who could also play multiple roles in the organization."

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