From nearly 40 years’ experience as arbitration counsel, and more recently as arbitrator, in my opinion one of arbitration’s most important features is flexibility. Too often, and especially in the common law world, arbitration blindly follows the path of court litigation. Many procedural meetings begin with a rudimentary description of the issues, followed by an attempt to agree a date for one main hearing, and then a series of procedural dates working back from that. The opportunity for effective case management is lost.
Every dispute is different. My approach to case management is to try to put in place the most efficient and robust pathway to final award. That may mean early resolution of discrete issues, perhaps on papers alone, or with a limited (maybe remote) hearing. It may mean early meetings of opposing expert witnesses, even before they write reports. It may mean early discrete document production.
My case management style style is proactive and collaborative. It is my job to listen carefully, try to accommodate the parties’ reasonable expectations, encourage agreement on efficient measures, and conduct the arbitration as best suited to resolution of the particular dispute, within the arbitration agreement and the applicable law and rules.
Some arbitrators state their style and preferences by way of answers to a questionnaire proposed by Ema Vidak-Gojkovic, Lucy Greenwood and Michael McIlwrath in Puppies or Kittens: How to Better Match Arbitrators to Party Expectations (Austrian YB Int Arb 2016) >. Here are my answers. They are as straightforward as possible. Rather than qualifying each answer, I will simply say that there are likely to be exceptions. Again, every case is different.
Delegation: Do I believe it is acceptable for an arbitrator to delegate work to a junior lawyer who is not a member of the tribunal?
Tribunal secretaries: Do I believe that it is acceptable for a tribunal to appoint a secretary to assist it with the administrative tasks relating to the proceedings?
Rarely, and only following advance discussion with the parties.
Preliminary or early decisions: Do I believe it is appropriate for tribunals to attempt to identify and decide potentially dispositive issues early in a case, even if one of the parties does not consent to this?
Settlement facilitation: Do I believe arbitral tribunals should offer to assist parties in reaching a settlement, and actively look for opportunities to do so?
Early views of strengths and weaknesses of claims and defenses: Do I believe arbitrators should provide parties with their preliminary views of the strengths and weaknesses of their claims and defenses?
Yes. If I can do this with the information I have, I usually will. As counsel, I find this extremely valuable.
IBA Rules of Evidence: Do I believe international tribunals should apply the rules in proceedings even if one of the parties objects to their application?
Not necessarily, but they are a helpful guide.
Document disclosure: Do I believe it is appropriate for international tribunals to grant a party’s request for e-discovery?
If the information sought is necessary and the request is proportionate, yes. Document production today is nearly all electronic.
Skeleton arguments: Do I prefer for parties to provide a summary of their arguments to the tribunal before the hearing?
Chair nominations: Do I believe co-arbitrators should consult with the parties who appointed them before proposing names for a chair to the other coarbitrator?
Only with the consent of the parties.
Arbitrator interviews: Am I available to be interviewed by the parties before being appointed (in accordance, for example, with the Guidelines for Arbitrator Interviews published by the Chartered Institute of Arbitrators)?
Arbitrator interviews: If I am appointed as a coarbitrator, do I think parties should interview a prospective chair that I and the other co-arbitrator have identified, before agreeing the appointment?
Counsel misconduct: For a counsel that has engaged in misconduct, do I generally take steps while the proceedings are underway, or include consideration of the misconduct in a subsequent
award of costs, or do you believe it is not within the responsibility of the arbitral tribunal? (choose only one)
(a) Discipline during proceedings, immediately when misconduct occurs
(b) Discipline both during proceedings and in subsequent award on costs
(c) Take misconduct into consideration in cost award
(d) Do not believe counsel misconduct is responsibility of the tribunal
This will depend on the misconduct and its relationship to the proceedings. In most cases the answer is likely to be (c), as there is little opportunity for a tribunal to ‘discipline’ counsel. But I would raise the issue straight away when the misconduct came to my attention.
Costs: Do I believe it is appropriate for a party to recover all of its reasonable costs (including counsel fees) if it has prevailed on its claims or defenses?
In general yes, subject to the arbitration agreement, the applicable law, and any circumstances justifying a different approach (such as misconduct).
Costs: Do I believe it is appropriate for a party to recover the reasonable costs of any in-house counsel who conducted or assisted the party’s conduct of the arbitration?
Yes, when in-house counsel acted as counsel in the proceeding, subject to the same considerations.
Do I view myself as conducting proceedings more in the style of the common law, the civil law, or no preference / depends on situation?
I have a common law background but, as described above, in my view arbitration can and frequently should deviate significantly from court practice of any tradition.
How I prefer to conduct arbitration proceedings in cases in I have been, or could be, appointed: