Case Management
What you may expect if you select me as an arbitrator:
My responses to some common case management questions are set out below:
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? NO and related to this question, I think it is only rarely appropriate to appoint a secretary to assist with administrative tasks.
PRELIMINARY DECISIONS: Do I believe it is appropriate for tribunals to identify and decide potentially dispositive issues early in a case, even if one of the parties does not consent? Rarely in my experience has it been appropriate to dispose of disputes in arbitration through summary proceedings. It is far more important to insure the cost efficient and timely process of getting arbitration disputes to final hearing and award.
SETTLEMENT FACILITATION: Do I believe it is appropriate for tribunals to assist parties in reaching settlement? I believe arbitrators should encourage parties to engage in good faith settlement efforts, including Mediation. Where a specific arbitral forum provides for mediation in its rules, I encourage the parties to consider engaging in mediated settlement efforts at the most appropriate stages of the arbitration. In ad hoc proceedings, I will offer the assist parties in identifying qualified mediators should they desire my assistance.
IBA RULES OF EVIDENCE: Do I believe international tribunals should apply the IBA rules in proceedings even if one of the parties objects to their application? I am not comfortable imposing such rules in the face of opposition by a party, but I always encourage their adoption and most tribunals on which I have served will consider them to provide guidance, even in the absence of agreement that they are binding. The development of the Prague Rules as an alternative is interesting and I have been following the process through the blogosphere.
DOCUMENT DISCLOSURE: Do I believe it is appropriate for international tribunals to grant a party’s request for e-discovery? Yes, provided it is focused and the cost is not disproportionate to the potential relevance of the documents.
ARBITRATOR INTERVIEWS: Do I make myself available for interviews by parties before being appointed as a party-nominated arbitrator? Yes, I encourage interviews. I generally limit them in accordance with the Guidelines for Arbitrator Interviews developed by the Chartered Institute of Arbitrators, but I am also willing to be interviewed more broadly by counsel for both parties if they agree to the process.
CHAIR NOMINATIONS: Do I believe party nominated arbitrators should consult with the parties who appointed them before proposing names for a chair to the other party-nominated arbitrator. I do not follow a single procedure in all cases. The most important consideration for me is that both party-nominated arbitrators and both parties are fully aware, approve and follow the same procedure.
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? I recognize that costs should follow the event in most international arbitration disputes. That said, I think it is appropriate for the arbitrators to attempt, in a cost effective manner, to analyze the costs on an issue by issue and claim/defense by claim/defense basis so that costs truly follow all the events in what is often a complicated series of disputes within a single arbitration.
COMMON LAW – CIVIL LAW: Do I view myself as conducting proceedings more in the style of the common law, the civil law or no preference? As a common law trained lawyer who has practice in common law jurisdictions for more than 40 years, it would be disingenuous to pretend that I am not more comfortable conducting proceedings in the style of the common law. That said, I have been privileged to serve with and consider good friends a number of civil law trained arbitrators and I am comfortable adjusting to a less adversary process when that is the preference of the parties and counsel. I think this is becoming known as the style of “international arbitration” which I view as an efficient determination of the dispute without excessive pre-hearing discovery or lengthy adversary hearings.
Case Management
What you may expect if you select me as an arbitrator:
My responses to some common case management questions are set out below:
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? NO and related to this question, I think it is only rarely appropriate to appoint a secretary to assist with administrative tasks.
PRELIMINARY DECISIONS: Do I believe it is appropriate for tribunals to identify and decide potentially dispositive issues early in a case, even if one of the parties does not consent? Rarely in my experience has it been appropriate to dispose of disputes in arbitration through summary proceedings. It is far more important to insure the cost efficient and timely process of getting arbitration disputes to final hearing and award.
SETTLEMENT FACILITATION: Do I believe it is appropriate for tribunals to assist parties in reaching settlement? I believe arbitrators should encourage parties to engage in good faith settlement efforts, including Mediation. Where a specific arbitral forum provides for mediation in its rules, I encourage the parties to consider engaging in mediated settlement efforts at the most appropriate stages of the arbitration. In ad hoc proceedings, I will offer the assist parties in identifying qualified mediators should they desire my assistance.
IBA RULES OF EVIDENCE: Do I believe international tribunals should apply the IBA rules in proceedings even if one of the parties objects to their application? I am not comfortable imposing such rules in the face of opposition by a party, but I always encourage their adoption and most tribunals on which I have served will consider them to provide guidance, even in the absence of agreement that they are binding. The development of the Prague Rules as an alternative is interesting and I have been following the process through the blogosphere.
DOCUMENT DISCLOSURE: Do I believe it is appropriate for international tribunals to grant a party’s request for e-discovery? Yes, provided it is focused and the cost is not disproportionate to the potential relevance of the documents.
ARBITRATOR INTERVIEWS: Do I make myself available for interviews by parties before being appointed as a party-nominated arbitrator? Yes, I encourage interviews. I generally limit them in accordance with the Guidelines for Arbitrator Interviews developed by the Chartered Institute of Arbitrators, but I am also willing to be interviewed more broadly by counsel for both parties if they agree to the process.
CHAIR NOMINATIONS: Do I believe party nominated arbitrators should consult with the parties who appointed them before proposing names for a chair to the other party-nominated arbitrator. I do not follow a single procedure in all cases. The most important consideration for me is that both party-nominated arbitrators and both parties are fully aware, approve and follow the same procedure.
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? I recognize that costs should follow the event in most international arbitration disputes. That said, I think it is appropriate for the arbitrators to attempt, in a cost effective manner, to analyze the costs on an issue by issue and claim/defense by claim/defense basis so that costs truly follow all the events in what is often a complicated series of disputes within a single arbitration.
COMMON LAW – CIVIL LAW: Do I view myself as conducting proceedings more in the style of the common law, the civil law or no preference? As a common law trained lawyer who has practice in common law jurisdictions for more than 40 years, it would be disingenuous to pretend that I am not more comfortable conducting proceedings in the style of the common law. That said, I have been privileged to serve with and consider good friends a number of civil law trained arbitrators and I am comfortable adjusting to a less adversary process when that is the preference of the parties and counsel. I think this is becoming known as the style of “international arbitration” which I view as an efficient determination of the dispute without excessive pre-hearing discovery or lengthy adversary hearings.