Given the predominance of international arbitration as the means for resolving cross-border disputes, commercial parties globally have clearly voted with their feet in favouring this approach. In “domestic” arbitrations in some jurisdictions (including New Zealand), however, parties need to opt-out of appeal procedures. Opting-out is to be recommended. Parties considering retaining appeal rights should carefully assess whether such procedures are proportionate and provide the so-called "right answer" sought. • Precedent: Whilst arbitral awards cannot usually be published publicly, some arbitral rules permit anonymised publication. Parties themselves can likewise provide for the same in their arbitration agreement. As the Report makes clear, these points (and various other important practical matters) need to be considered in the circumstances in each case. Arbitration of financial disputes is on the rise As the Report also notes, the work of the Task Force should not be seen in isolation. Rather, the use of arbitration by financial institutions and counter-parties has been increasing steadily over recent years. Other developments that banks, financial institutions and their clients should be aware of include: • International Swaps and Derivatives Association (ISDA): The increased interest in arbitration in cross-border finance is reflected in ISDA’s publication in 2013 (after several years of consultations with its members) of a range of optional arbitration clauses, which are intended to form part of the Schedule to a Master Agreement. The Model Arbitration Clauses can be found in the 2013 ISDA Arbitration Guide which supplements and amends the corresponding guidance in the ISDA User’s Guides. The Model Arbitration Clauses provide for use of the leading institutional arbitration rules, offering numerous combinations of arbitral rules, governing law, and seat.
• P.R.I.M.E. Finance: The increasing use of, and anticipated future demand for, arbitration of international financial disputes also led to the establishment in early 2012 of a new financial dispute resolution institution, the Panel of Recognised International Market Experts in Finance (P.R.I.M.E Finance). P.R.I.M.E Finance’s aim is to provide a bespoke forum for the resolution of complex international financial disputes. Its offering includes a panel of specialist senior arbitrators who are experts in complex international financial disputes, customized arbitration rules, mediation and expert services. In the 2013 ISDA Arbitration Guide, ISDA has included in its model arbitration clauses an arbitration clause that provides for arbitration under the P.R.I.M.E Finance Arbitration Rules. P.R.I.M.E Finance's website, including copies of its Rules can be found at the PRIME Finance website. • London Arbitration Club: In 2015 the Financial Sector Branch of the London Arbitration Club published its Financial Services Expedited Arbitration Procedure for adoption by financial institutions. This takes the form of standard form arbitration clauses that can be included in finance documents which mandate that pre-agreed efficient arbitral procedures be used in the event a dispute arises. A copy of the Financial Services Expedited Arbitration Procedure can be found at the London Arbitration Club website.