SESSION A – THE TRIBUNAL
1 Arbitrator interviews
To what extent are parties allowed to interview arbitrator candidates, and what precautions should the candidates themselves take (e.g. based on the CIArb guidelines)?
2 Due diligence on arbitrators
Is there a concern about using private investigators to investigate the background and independence of proposed arbitrators?
3 Party appointed arbitrators
(i) It is common for parties to nominate a lawyer from their own jurisdiction as their party appointed arbitrator. Frequently, the substantive law is also the law of that jurisdiction. Typically the other two arbitrators are from different jurisdictions. When issues of substantive law arise, is this arrangement a level playing field?
(ii) To what extent is it permissible for a party to provide a list of potential tribunal chairs only to their party appointed arbitrator? If a party appointed arbitrator receives such a list, should he or she disclose it to the other party appointed arbitrator or to the other party or to both?
(iii) In a typical arbitration clause, one party appoints an arbitrator first and the other party appoints another arbitrator, subject to approval by the arbitration institution where applicable. The chairperson is then appointed either by the two arbitrators or by the parties, as the arbitration clause provides.
(iv) Is it common for the arbitration institution not to inform the identity of the arbitrator appointed by one party to the other party until that other party appoints another arbitrator?
4 Appointments by the institutions
(i) Should institutional rules make the selection of arbitrator(s) by the institution / appointing body the default position?
(ii) Where arbitral institutions are required to act as an appointing authority, should they endeavour to ensure that appointments of arbitrators on their roster list are distributed equally?
1 5 Appointment of non-lawyers
The lawyers are taking over. Traditionally, we are told, one of the beauties of arbitration was that it provided a possibility for parties to have their disputes resolved within their own business or industry, without the involvement of lawyers. Certain arbitration rules (e.g. FOSFA) try to retain this option by excluding lawyers from parts of the procedure. Anecdotal evidence suggests that the appointment of non- lawyers is becoming increasingly rare. Is it? Are any delegates working on a case presided by a non- lawyer? What are the pros and cons of this route?
6 Selection of arbitrators
Is expertise in a particular area of law or industry sector really a relevant factor when selecting an arbitrator?
7 Conflicts
(i) Does the ability of parties to choose arbitrators encourage perceptions of bias or impartiality?
(ii) There appears to be a concern about the neutrality of arbitrators who are actively recruiting global companies to be those entities' party appointed neutrals. Does this marketing approach by certain individual arbitrators conflict with the concept of real neutrality?
(iii) Do people have any recent experience of making qualified disclosure when accepting an appointment because of a past or present relationship with counsel/ counsel’s firm? If Barristers’ chambers were concerned, were they treated differently to a conventional law firm? If there is any such recent experience, how did that work out for them?
(iv) Does the use of social media create arbitrator conflicts of interest?
(v) How far should disclosure of potential conflicts of interest go and how willing should an institution be to appoint despite some disclosure of a marginal nature? (For example: Is the fact that someone who works for a party is a LinkedIn connection of a potential arbitrator something that should be disclosed?)
(vi) Shall an Arbitrator appointed upon nomination of one party be revoked where there exists a business relationship within the framework of the Board of Directors of a Company between such Arbitrator and (not the nominating party and/or the legal counsel, but) the defense technical consultant appointed by the Legal Counsel of the same party and such relationship has not been declared by the Arbitrator? Shall a possible revocation depend on the depth of the relationship and at what depth the relationship may be judged decisive for the revocation of the nomination?
2 (vii) Arbitrator X had acted as Chairperson in two different, completely unrelated arbitrations, A vs. B and C vs. D. Both arbitrations are terminated.
In a third arbitration between A and C, which is totally unrelated to the two first arbitrations, A wishes to appoint X as co-arbitrator. Does X have to disclose
• to A that he/she acted as Chairperson in the case between C vs. D; • to C that he/she acted as Chairperson in the case between A vs. B?
8 Challenges
(a) When challenging arbitrators, the general criterion would be whether justifiable doubts exist as to the arbitrator's impartiality or independence. In discerning whether justifiable doubts exist, should the test be "sheer appearance of bias" or "actual bias"? In other words, should the test be a "subjective" or "objective" one?
(b) In challenging arbitrators, does non-disclosure of certain facts qualify as an ipso facto or ipso jure ground for a successful challenge irrespective of the nature and impact of the non-disclosed information, or should the non-disclosed information strongly suggest and evince bias?
(c) Challenging arbitrators is often a fact sensitive and fact assessment exercise, but what law governs such exercise to discern an arbitrator's bias? Is it the lex loci arbitri, the lex causae, the law governing the arbitrator's capacity (lex patriae or lex domicilii), or the law governing the arbitration agreement, the lex loci executionis, or a different law?
9 Emergency arbitrators
(i) Does emergency arbitration provide sufficient procedural safeguards for the Respondent?
(ii) Many institutional arbitration rules provide for opt out emergency arbitrators (eg SCC since January 2010, SIAC since July 2010, ACICA since August 2011, ICC since January 2012 and Swiss Chambers since June 2012), the AAA international and commercial arbitration rules foresee the opt in emergency arbitrator since 2006/2009.
Does the LCIA offer the same or even better service with its expedited tribunal formation and the possibility to curtail time limits according to Article 9 of the LCIA Arbitration Rules?
(iii) Parties seek to put pressure on each other especially in the period prior to the commencement of arbitral proceedings. A potential respondent may start state court proceedings or seek to obtain a court order enjoining the other party from commencing arbitral proceedings (“anti-arbitration injunction”). Such manoeuvres lead to an escalation of the dispute, increase the costs and divert the parties’ attention from the main issue.
3 Pursuant to Article 29(1) of the 2012 ICC Arbitration Rules, a party “that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal” can seek interim or conservatory measures from the Emergency Arbitrator.
Can the Emergency Arbitrator play a useful role in fighting anti-arbitration injunctions by issuing anti-suit injunctions?
10 New counsel
Once the tribunal is constituted, should there be a requirement on the parties to disclose the addition of any new counsel?
11 Removing counsel
Can there really be a possibility for arbitral tribunals to remove counsel?
12 Tribunals' powers
Do tribunals have the powers they need to deal with process abuses and are they using them? If not, how do they get them?
13 Arbitrators’ fees
(i) There is increasing anecdotal evidence of arbitrators providing time sheets which indicate they have spent a disproportionate amount of time on a case compared with their co-arbitrators. LCIA caps the hourly rate but can anything be done by arbitrators or institutions about arbitrators who spend (or say they spend) an excessive amount of time on a case?
(ii) Is proceeding through an institution a good way of bargaining down arbitrators’ fees? Does it work out cheaper having a top silk appointed by the ICC or appointed ad hoc? Or is there insufficient price transparency for parties or counsel to make any judgment as to how to control this element of fees?
(iii) Many institutions that, unlike the LCIA, calculate the tribunal's fees on the basis of the amount in dispute still practise the 40:30:30 fee split. When chairing, I thus discuss the topic openly with my co-chairs at the outset and ask them whether they want to go with the mentioned split and allocate the workload accordingly or whether they want the chair to do most of the work and agree on a different fee allocation that reflects this. I am fine to go both ways. Unfortunately, in two recent cases, co-arbitrators opted for the 40:30:30 split while agreeing to split the work accordingly but were each time "unavailable due to other commitments" when work needed to be done. An hourly fee would avoid this problem, although I see that this makes the cost of the case less foreseeable for the parties.
Have you experienced situations like mine? How would you react?
4 (iv) Should there be standard conditions for cancellation or postponement fees (e.g. sliding scale depending on time of notice) payable to the Arbitration Tribunal?
If so, should they be mandatory or in the nature of suggestions?
Should the payment of such fees be subject to conditions, such as the attempt to replace the scheduled hearing with other remunerated services?
14 Secretaries to the tribunal
The ICC's "Note on the Appointment, Duties and Remuneration of Administrative Secretaries" of 1 August 2012 - has it solved or exacerbated the problem?
5 SESSION B – ISSUES OF JURISDICTION
15 Battle of the Requests
If a claimant files a notice of arbitration regarding a contractual dispute, and, prior to being notified, the Respondent files a subsequent notice against the Claimant regarding the same subject matter of the first notice, should an arbitral institution register both notices, or should the institution refuse the second in order on account of the fact that a first notice has already been received?
If the institution registers both, there could be a risk of duplicate proceedings regarding the same subject matter and consolidation may be difficult, unless the institution has sufficiently clear and detailed rules on consolidation.
16 One-sided arbitration agreements
On September 1 the decision of the Russian Supreme Commercial Court in CJSC Russian Telephone Company and Sony Ericsson Mobile Telecommunications Rus LLC, holding invalid a unilateral optional arbitration clause giving one party (but not the other) the right to litigate, was published.
The decision is a model of vagueness, and can be interpreted in a number of ways including:
(a) the arbitration clause as an entirety is invalid under Russian law or
(b) the arbitration clause is valid but the other party has the same optional right under Russian law to litigate.
Both of these scenarios appear to render meaningless the obligatory obligation to arbitrate which is on the party not possessing the optional right In light of this development and the number of contracts with Russian parties that contain “asymmetrical” arbitration clauses providing for arbitration under LCIA rules,, it would be useful to discuss:
(a) whether the Russian party could successfully impede an arbitration proceeding in England by arguing that the arbitration clause as a whole is unenforceable or by bringing suit in Russia.
(b) would a Russian court enforce an arbitral award rendered outside of Russia involving a contract with such a clause?
(c) might it be possible to create an enforceable contract with such a clause if the clause itself is expressly governed by foreign (English) law, or would public policy in Russia override such a choice of law?
17 The scope of the agreement to arbitrate
(i) “All claims arising out of or in connection with this agreement": How loose can such a connection be?
6 (ii) Would a party always be barred from raising an issue relating to the extension of the arbitration clause at a later stage in the proceedings? What are some of the practical considerations that could be addressed in this circumstance?
18 Multi-tier arbitration clauses
What is the current and recommended practice when, in multi-tiered arbitrations, arbitral tribunals are faced with a mandatory condition-precedent that was not complied with prior to the reference to arbitration? Is a rigorous or a flexible approach in order? Should the proceedings be stayed or should the claim be dismissed?
19 The captive joint venture
In a JV dispute, often the arbitration is brought by one joint venturer and the joint venture entity which the other side says the first has improper control of. What options are open to the respondent joint venture to deal with this? Does anyone have experience of (i) seeking to obtain injunctive relief against the claimant joint venturer to prevent them using the JV in the arbitration; (ii) asking the Tribunal for an order or award removing the JVco from the list of parties?
20 Consolidation
(i) Consolidation of arbitrations can be problematical. Sometimes instead of consolidating, parties conduct parallel proceedings in which one or more of the arbitrators is a member of both tribunals. Has anyone experience of this arrangement working satisfactorily or should it be avoided?
(ii) How often, if ever, does joinder of parties or consolidation of arbitral proceedings occur in practice?
21 Interpretation of the contract
Can an arbitral tribunal characterize an agreement in dispute differently from what has been consistently argued by parties throughout the dispute? For example, in civil law countries, is an arbitral tribunal at liberty to characterize an agreement as an administrative contract even though the parties have consistently upheld its private law nature?
22 The proactive arbitrator
(i) In the case of a non-participating party, to what extent can a tribunal request additional information/documents from the other party to support its claim? Clearly the tribunal does not have to make the case for the absent party but must also be satisfied of the veracity of the claim.
7 (ii) When, if ever, is it appropriate for the arbitrator to go beyond the parties’ submissions? If it is permissible at all, what are the proper boundaries for further legal or fact research?
23 The proactive tribunal
(i) Can the tribunal raise issues for comment that have not been raised by the parties?
(ii) Is it appropriate for an arbitrator, without any invitation by the parties, to intervene in a procedural row taking place between the parties in correspondence (which is unfolding before his eyes) because in his view, his intervention would assist him in the proper progress of the case?
(iii) How far should the tribunal go in raising concerns about a party’s procedural decisions when they are likely to have an adverse impact on that party’s own case and the overall efficiency of the arbitral proceedings?
24 Applicable law
There has been some discussion recently as to the applicable law of the arbitration agreement, i.e. is it the law of the contract or the lex arbitri. But which law governs whether an arbitration agreement has been concluded per se?
25 Model Law
In the recent Irish case of P Elliott & Company v FCC Elliot Construction Limited, the Irish High Court relied heavily on English authority (including Fiona Trust and Sancheti) in interpreting and applying Article 8 of the Model Law. Is it appropriate for a court in a Model Law jurisdiction to have regard to authority from a non- Model Law jurisdiction? Or does the blurring of lines between Model Law and non-Model Law countries lead to a greater commonality of principle across jurisdictions on key points?
26 Collateral estoppel
When the court in a competent jurisdiction ruled upon an issue between the same parties, has it been your experience that the principle of res judicata prevailed when the losing party filed a request for arbitration on the same issue? Also, what have been your experiences with regard to the principle of collateral estoppel (issue preclusion)? Has anyone had an experience where the tribunal refused to entertain arguments under the principle of collateral estoppel?
8 27 The pre-emptive strike
After the latest chapters in West Tankers, how many delegates are getting their retaliation in first by asking for a partial award declaring the arbitrator has jurisdiction?
28 Specialized Courts
The drafters of the UNCITRAL Model Law noted in the Analytical Commentary regarding Article 6 that “[t]o concentrate these arbitration-related functions [appointment; challenges; termination; setting aside of awards] in a specific Court” would have two benefits. “Even more beneficial [than enabling parties to locate the correct court] would be the expected specialization of that Court.” While the drafters considered that full centralization would be best, they noted that it need not be one individual court in each State, and that particularly in larger countries, a type or category of courts might be designated such as a commercial court or chambers, and that it need not necessarily be a full court or chamber but it might well be the president or presiding judge of a chamber.
In the 25+ years of the Model Law, few states have implemented the kind of centralization and specialization sought by the drafters. Why?
Would international arbitration serve its commercial users better if there were to be more centralization and specialization? If so, what can be done?
Should international arbitration institutions and organizations do more by way of judicial education and developing norms and model approaches to assist national courts in all jurisdictions to perform their roles consistently and effectively?
29 Staying the arbitration
(i) On an application for a stay of proceedings which is better: a ‘prima facie review’ or a ‘full review’ of the issue of whether the arbitration agreement is null and void, inoperative or incapable of being performed?
(ii) What is best practice when parties ask to stay an arbitration on grounds that they are trying to settle the dispute? Can the arbitrators protect themselves from future conflict issues raised by a “lying dog”?
30 Costs of a successful jurisdictional challenge
In the event that the tribunal rules that it has no jurisdiction on the basis that there is no valid arbitration agreement, does the tribunal have power to rule on the costs of and occasioned by the jurisdictional challenge?
9 31 Ex aequo et bono
How often are arbitrators empowered to decide cases ex aequo et bono and how effective is it?
10 SESSION C – PRACTICE AND PROCEDURE
32 Improving international arbitration
Rather than 'band wagoning' with the doom and gloom squad (much present in Singapore at ICCA), our focus should be on making IA an even better option for the resolution of international disputes than it is at present.
33 Delay
(i) Is it ever appropriate for an arbitrator to call a halt to the parties repeatedly, by consent, adjourning the hearing of a matter, when those parties are manifestly failing to settle the dispute with the result that the case keeps dragging on with no resolution in sight?
(ii) Its impact on arbitrations: possible remedies?
34 Timekeeping
Is a chess clock the best way?
35 Unavailable counsel
An arbitral tribunal attempts to organise a conference call with counsel. One counsel, Mr. Z, informs that he is on holiday for a long period. Given the specific circumstances of the case, that does not seem to be very plausible. In that situation, the chairperson of the arbitral tribunal dials the direct extension of Mr Z at his law firm. Mr Z immediately picks up the phone and says his name.
Is there a need for (more efficient) control or compliance with basic ethical standards by counsel? If yes, who should exercise that control? What is / can be the role of an arbitral institution? What about ad hoc arbitration?
36 Who has the last say on procedure?
In what circumstances is it - if ever - permissible, or even required, for an arbitrator to ignore or overrule an agreement between the parties on a question of procedure? It could involve a question of timelines, or the length of written submissions or the use of time during a hearing, to name but a few scenarios. Is there a clear "line in the sand" that can be drawn (or to use a more topical expression, a "red line") which, if crossed, should prompt a clear and firm response by an arbitrator or Tribunal?
11 37 Due process
How far should a tribunal go in trying to make sure a respondent has been served with arbitration documents and has a reasonable opportunity to respond to the case made? What should you set out in the award?
38 Witness testimony
(i) Can a party who is also the principal witness choose to make his factual assertions in the context of his memorial? Does this affect the admissibility or weight of the evidence given?
(ii) The trend in international arbitration appears to be towards short “evidence” hearings at which factual and expert witnesses are called and cross-examined. Submissions are made in writing by way of increasingly lengthy opening (pre-hearing) and closing (post-hearing) submissions. (a) Is this a positive move? (b) Does it tend to favour practitioners from inquisitorial systems over those from adversarial systems?
(iii) Does anyone have any recent experience of directing the production of evidence by Interrogatory? If so, how was the matter of swearing the witness dealt with?
39 Experts
(i) The joint meeting and joint memorandum of areas of agreement/disagreement can be useful ways of narrowing expert issues. Sometimes however, little is achieved, particularly if experts are partisan-minded or are encouraged to be so. Is there anything the Tribunal could, or should, do to make the joint meeting and joint memorandum more useful and constructive?
(ii) Is it better (a) to require parties to serve expert evidence with submissions (getting expert evidence produced at an early stage, and possibly making for greater speed/efficiency), or (b) to require expert evidence to be ruled upon after submissions (possibly giving greater scope for control by the Tribunal)?
(iii) In complex post-closing accounting disputes, what are the relative advantages and disadvantages of engaging a panel of lawyers who hear expert testimony or engage their own expert, as compared to engaging one or more expert accountants directly as the arbitrator(s)?
(iv) Should experts give evidence in chief to summarise their opinions?
12 40 How to organise a hot tub
Tribunal's questions first or advocates'? Should witnesses be encouraged to lead the witness conference?
41 Papers only or hearing?
(i) When both parties have agreed that the proceedings shall be conducted on the basis of documents only, in what circumstances and on what basis would it be appropriate for the tribunal to impose a hearing on the merits?
(ii) The Danish arbitration rules provide for an oral hearing that “shall be held” unless the parties agree otherwise. In proceedings which do not require a hearing, where Respondent fails to participate and having requested both parties’ opinion on the hearing, if Respondent is silent, I have Claimant choose whether it wants the hearing or not. I proceed this way as, in my view, it is Claimant’s money that (would) finance(s) the hearing and it is Claimant’s decision whether it will be able to enforce the award rendered upon written procedure only in the jurisdictions anticipated for award execution. Normally, and again in my current case, Claimants decide to refuse the hearing under these circumstances. My co-arbitrator now disagrees with my approach and insists on holding the hearing in any event.
What is your stance?
42 Lawyers off the record
Where (i) a party states it is receiving legal advice and that advice is clearly affecting (for good or ill) the arbitral process (and thus the rights etc of the other side), but (iii) the lawyers giving that advice are invisible to the tribunal and to the other party, is it appropriate for the tribunal to request that those lawyers go onto the record? If so, can such a request ever be a demand?
43 Document production
(i) Under what circumstances should the tribunal take measures to limit the scope of requested document discovery and e-discovery even if neither party has specifically asked for such limitations?
(ii) Are Redfern schedules being adopted widely to deal with requests for disclosure of documents and are there any pitfalls in using them?
44 Document production
Is there a danger of Redfern Schedules being automatically ordered, and becoming unwieldy for less complex disputes? Is there anything which Tribunal can, or should, do to make such schedules simpler, and more effective?
13 45 Getting to the point
(i) It appears through the arbitration proceedings that the arbitrator is often having difficulties in absorbing and reading the mountain of pieces of evidence submitted by either parties.
There is a way to conduct the proceedings in this respect in asking the parties concerned to make a selection of relevant pieces useful to the current dispute, to list them with reference to the arguments raised in the submissions. This applies also to the e-mails which are not easy to understand when one has to focus on the relevant position of either party. This is a difficult exercise because the Arbitrator's role is not to give some guidance to either parties as he must remain neutral.
Would anyone have a previous experience in advising the parties one way or another with the sole purpose to ease the arbitration process
(ii) Many arbitrations are overburdened with documentary evidence much of which is not referred to in the statements of claim or defence or in a subsequent hearing. Should documentary evidence be limited to documents expressly referred to in the statements of claim or defence, or is that too radical? If the mountain of paper is provided how should the tribunal decide what to read?
46 Follow-up questions
After the final hearing on the merits, arbitral tribunals are increasingly submitting to the parties a list of follow-up questions that they wish them to answer in writing. What are the impacts and pitfalls of such a practice?
47 Admissibility of documents for impeachment
In international arbitration, the parties are usually required to file all evidence in advance of the hearing, so as to avoid surprise and procedural unfairness. Should parties be permitted to depart from this requirement and file new documents during the course of cross-examination for the purpose of impeaching a witness?
48 Rebuttal evidence
Does the practice in some jurisdictions of adducing rebuttal evidence have any role to play in international arbitration and if so to what extent?
49 Post-hearing briefs
To what extent would it be appropriate for an arbitral tribunal to raise, at the hearing, legal issues relating to public order which were not pleaded by the parties and request them to address such issues in their post hearing briefs?
14 50 Corruption
In arbitrations involving Russian and Eastern European companies and sovereign owned entities we hear rumours of pressure being exerted on arbitrators in the selection process and in the rendering of awards. Clearly where corruption exists its tentacles extend in many directions. Is this a valid concern and has anyone experienced "soft" pressure or outright pressure from a party during the process?
51 Money-laundering defences in arbitration, a rogues’ charter?
Media reports about bogus and “mafia awards” are on the increase. Criminal parties start an arbitration, fight like cats and dogs and then settle abruptly and unexpectedly for payments that are sky-high in order to launder money originating from organized crime or to trick their creditors on the eve of insolvency.
How to best avoid getting “recruited” by criminal parties as a counsel or tribunal? How to secure unsettled counsel fees upon discovery of the actual situation? Sharing your personal experience with such cases would be appreciated.
52 Confidentiality
Having regard to the Rules with respect to confidentiality (art. 30) what are the matters which may be disclosed? e.g.
a) that there is an arbitration between named parties; b) the issue in dispute; c) the names of counsel
Does the “Statement of Claim” and “Contestation” come within the prohibition “all materials in the proceedings” (art. 30.1)?
Should the requirement to keep all awards confidential be re-examined having regard to the public interest in the development and/or advancement of the Law?
53 Costs
Have the efforts made to curtail costs in arbitration satisfied the end users of the process?
Or is there still a feeling that parties are more prepared to mediate to avoid the time and cost of international arbitration.
54 Institutional charging structures
What is the best charging structure for an arbitral institution? Why?
15 55 Third party funding
Claimant has the benefit of third party funding (TPF). The TPF agreement contains a confidentiality clause. The Tribunal is asked by R to order C to confirm whether a funding agreement has been entered into and to name the funder. (A) You are the tribunal - what should you do? (B) You are counsel for C - what should you do? LCIA rules. Dublin seat.
56 Guerilla tactics
(i) Are guerilla tactics still a growing concern in international arbitration? How can the tribunal effectively deal with guerilla tactics? Is there recent experience on real threat on arbitrators?
(ii) Are we experiencing an increase in 'guerilla tactics'? if so, how are they best handled?
57 Med-Arb
(a) Would it be useful to have a stand-by mediator appointed at the start of heavy arbitrations? If so, how should such a procedure be introduced? (By means of the arbitration clause? By encouragement from the Tribunal?)
(b) Should arbitrators and parties be moving towards greater use of med-arb techniques, where arbitrators facilitate settlement?
58 Hearing centres
Global Arbitration Review has done a survey about hearing centres for its upcoming guide to regional arbitration. This raises several interesting issues.
1. How important is the hearing facility to an efficient and productive hearing? Why?
2. What attributes differentiate an adequate hearing centre from a great hearing centre? Why?
3. Who has the greatest influence on the choice of space for a hearing – counsel, parties or arbitrators?
4. Are parties and their counsel too often “penny-wise and pound foolish” in their selection of a hearing facility?
5. Tribunals get involved in various organizational matters to make hearings run efficiently and effectively (such as how written materials are organized). Are tribunals unduly deferential to the parties and their counsel in the choice of a hearing facility? If hearing facility issues might result in a less efficient and effective hearing (due to such things as inadequate break-out rooms for parties and the tribunal; lack of technology for video conference evidence or for computers; lack of real time reporting; lack of comfort, good air, good lighting, etc.), should tribunals exert greater influence on the choice of the hearing facility as part of their role in conducting cost-effective and efficient arbitration?
16 SESSION D – ORDERS, AWARDS AND ENFORCEMENT
59 Default proceedings
In case of default proceedings, what are some of the positive steps a tribunal should follow to limit the risk of rendering an award that may be subsequently deemed unenforceable by national courts?
60 Interim measures
How should an arbitral tribunal proceed if it receives a request for a specific interim measure that is legally available under the law governing the merits, but not legally available, or even recognized under the law governing the proceedings?
61 Non-compliance with orders
What remedies does a complying party have when the other side refuses to comply with (i) a disclosure order (ii) a deadline for submission of a memorial or (iii) an order to produce a witness? Are the remedies as good as in domestic courts?
62 Substantiating the award
Is an arbitral tribunal always bound by the parties' legal arguments when reasoning its award? Can a tribunal, whilst being bound by the facts and claims/counterclaims, provide additional or different legal reasoning to substantiate its award?
63 Recovery of substituted payments
Under the LCIA Rules, a substituted payment is treated as a debt immediately due. What factors should determine whether the Tribunal makes an interim award in respect of such payments? What about repeat payments?
64 Consent awards
When parties settle a case before an award has been published they may ask the tribunal to produce a “consent award”. Is this practice acceptable in all jurisdictions? How far should the tribunal go in re-writing the parties’ agreement to turn it into an award?
17 65 Dissenting opinions
Does the ability of parties to choose arbitrators really promote the issuance of dissenting opinions?
66 Correcting the award
(a) To what extent can LCIA Rule 27 Correction of Awards and Additional Awards be used to provide the tribunal with continuing jurisdiction?
(b) Should there be a limit to the extent that a Tribunal can amend their award?
67 Awards of costs
Does an arbitral tribunal have the power and jurisdiction to award costs of the application to stay the court proceedings brought in breach of an arbitration agreement?
68 The 30 – 70 % phenomenon
Recently two prominent continental arbitration practitioners heavily criticised what they called the 30-70 % epidemic:
Many Arbitral Tribunals are afraid of deciding the case fully for or against one of the parties. Rather than letting the claimant fully win or lose the case, often Tribunals tend to grant 30-70 % of a claim.
This happens where
• there are reputable companies on both sides, and • the facts of the case are complicated.
Maybe, the theory behind this practice is that it is impossible that one of the parties is 100 % right and the other 100% wrong. Maybe, the Chairman seeks a compromise within the Tribunal where one or both wingmen are partisan and bias. Maybe, the Tribunal is not familiar enough with the governing law and is guided more by what it perceived to be right rather than by a rigid application of the law.
This is an observation of civil law lawyers. What do our common law friends think?
69 Relief affecting third parties
Does an arbitrator have the power to grant relief that affects third parties, such as a freezing order or other injunctive relief? Is there consistency in approach across jurisdictions? Does this impact the choice of the seat of arbitration?
18 70 Reversing the award
Can a Tribunal ever be in a position to reverse their award based on the discovery of new evidence soon after the award is released or based on a re-evaluation of the evidence based on a correction to the award?
71 Avoiding delay in issuing awards
(i) Is there an unacceptable delay in arbitral tribunals delivering awards? If so, what can be done to ensure that the award is delivered within a reasonable time?
(ii) Do any of those attending think that application of financial sanctions would encourage Tribunals to deliver their Awards more speedily?
(iii) One of the significant causes of delay in the arbitral process is the time taken by the Arbitral Tribunal to deliver its Award from the date of the hearing on merits or (when post hearing memoranda are permitted) from the date of the last submission of the parties. In a survey of about three years ago by Allen & Overy for ICSID arbitrations it was found that the average time from the date of the merits hearing to the issue of the Award was 1.2 to 1.3 years depending whether or not there were dissenting opinions. In a recent survey carried out by Berwin Leighton Paisner, for commercial arbitrations, it appears that in only 50% of the cases was the Award delivered in either within the 6 month or the 12 month period, while in 10% of the cases the Award was not delivered until after two years.
What should be the period for delivering Awards in ICSID and commercial arbitrations and what should (a) Arbitral Tribunals and (b) Arbitral Institutes do to remedy these delays?
72 Annulling the award
What would you say to a court that annuls an arbitration award on the fact that only the court has the power to annul a contract and limit the power of the arbitrators to adjudicate matters but not to decide on the annulment of a real estate contract (Dubai Court of Cassation recent judgment No. 14 /2012 Real Estate).
73 Enforcement
(i) In the ever longer economic downturn, are delegates facing particular problems in enforcing due to insolvency or liquidation of award debtors? Is the length of arbitration as a process a particularly serious concern when the survival of the opponent is increasingly in question?
(ii) The practice of state courts as to the enforcement or nullification of arbitral awards differs considerably from one state to another, even though the legal framework (due to the New York Convention and/or the UNCITRAL Model Law on International Commercial Arbitration) is identical or at least very similar.
19 Furthermore, some state courts are truly independent and impartial but others lack the required independence and impartiality. Sometimes, state courts also show a lack of experience in the field of international arbitration. Against this background, is it desirable to create an International Court for the challenge and the (refusal of) recognition and enforcement of awards?
(iii) As an arbitrator, one thing that I find difficult is where the respondent fails to participate in the arbitration? Do you have any useful tips in this regard, especially in order to ensure that the award becomes enforceable?
74 Refusing enforcement
What are the factors that should influence a court in exercising its discretion as to whether to refuse enforcement, assuming one of the grounds in Art V / Article 36 of the Model Law are established by a party seeking to resist enforcement?
75 Setting aside
How extensive or good should the reasoning of an award be before it is liable to be set aside as an award which failed to give reasons for its conclusion?
20