Sophie Nappert, an Arbitrator in independent practice at 3 Verulam Buildings in London, discusses the importance of the drafting process and the increased use of technology in international arbitration.
What is your current role in dispute resolution?
My current role is that of provider of arbitration services as arbitrator. What made me specialise in dispute resolution was, as it often is, a combination of both preference and circumstances. I focus on international arbitration in the energy, infrastructure and foreign investment fields.
Which processes do you use most frequently?
If one works primarily as an arbitrator, using a combination of methods can send the wrong message to the parties who have chosen you as an adjudicator – especially if those parties are not very familiar with the arbitral process. You could be seen as shying away from making hard or authoritative decisions.
The position may be different with more sophisticated users of the arbitral process, but generally my experience has been that when parties take the trouble and expense to go to arbitration they do not expect me to default to another mode of dispute resolution en route unless they specifically request it, which is rare.
Do you think the full range of dispute resolution processes is available to users?
It is worth recalling that the different means of dispute resolution require different skill sets. What makes a good arbitrator does not necessarily make a good negotiator or mediator, and vice versa. The same person wearing several hats may entail a waste of cost and time for the parties.
How do you think the dispute resolution processes are likely to change in the future?
The appropriate time to address what might be the ultimate dispute resolution mechanism is not *after* the dispute arises, and arguably the best person to address this question is not the dispute resolver. These matters should be addressed ex ante – meaning at the contract drafting stage. The parties know better than any dispute resolution provider what kind of dispute is likely to arise between them, and if it does arise, what mechanism they prefer for addressing it. Drafting more accurate, better thought-out dispute resolution clauses is key to better dispute resolution processes in future.
Do you think there is a global movement to streamline dispute resolution processes across the world?
The increased use of technology in international arbitration might well herald a ‘streamlining’ process for certain types of disputes for which the parties wish a more mechanical, *possibly* more predictable, process than what is currently offered by the human element in decision-making.
That said, there will always be disputes that demand a bespoke approach – gas price revision disputes are one example, if only because the dynamics of these disputes are different from those found in commercial contractual disputes that entail an alleged breach by one of the parties.
So I guess the short answer to your question from my perspective is that there is value in preserving flexibility and suppleness in dispute resolution processes. I have no doubt that we have a lot to learn from continued cross-cultural dialogue in this respect.
Interviewed by Natasha Mellersh.
Sophie Nappert is a dual-qualified lawyer in Canada and in the UK. She is an arbitrator in independent practice, based in London. Before becoming a full-time arbitrator, she was Head of International Arbitration at a global law firm. Sophie is trained and has practised in both civil law and common law jurisdictions. She is the peer-nominated Moderator of OGEMID, the online discussion forum on current issues of international investment law, economic law and arbitration.