London Branch Workshop – How to deal with guerrilla tactics in arbitration
29 October 2019
Members gathered to learn from highly experienced arbitrators how to deal with disruptive parties, counsel and tribunal members
L-R: Nicholas Stewart QC FCIArb, Paul Rose FCIArb, chair of the London Branch, Tim Hardy FCIArb
The London Branch held a workshop, kindly hosted by CMS Cameron McKenna Nabarro Olswang LLP. It was based on a case study designed to raise some of the most frequent and awkward problems of disruptive and sharp practices which may be encountered in international arbitrations. It covered mischievous challenges to the arbitrators on the basis of bias and procedural irregularity, tribunal members of doubtful independence who may not respect confidentiality, aggressive and interrupting counsel, non-compliance with directions, calculated unavailability of parties and counsel, and manufactured conflicts of interest.
Members shared their own experiences and thoughts in small groups and then brainstormed with the highly experienced faculty, comprising Nicholas Stewart QC and Tim Hardy, chaired by Paul Rose. Nicholas practised as a chancery/commercial barrister before becoming a Deputy High Court Judge. He is an arbitrator with the Court of Arbitration for Sport in Lausanne and a member of the Football Association Appeal Board Chairman panel. Tim Hardy practised as a solicitor, leading the Commercial Litigation team at CMS and is a full-time arbitrator, mediator and disputes consultant. He took a leading role in drafting the CIArb’s International Arbitration Practice Guidelines.
The case study involved a tribunal of three arbitrators considering a commercial dispute between parties from the UK and Switzerland (raising language issues). It had a UK seat, so that the Arbitration Act 1996 (“the Act”) applied. The parties had chosen the CIArb Arbitration Rules (“the Rules”). The procedural options for dealing with the various disruptive events required detailed consideration of the Rules and the Act, including the general duties of the tribunal under the Act to proceed fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of this opponent, and to adopt procedures avoiding unnecessary delay or expense. Consideration was given to whether the initiative under the Act or the Rules in the various situations lay with the tribunal or the parties.
The Faculty offered valuable and highly practical tips. These included firm and clear chairing and setting ground rules and a timetable at an early case management meeting, so as to ensure all tribunal members, parties and counsel are aware of their obligations and the framework for proceeding from the outset. Useful resources were examined: Appendix 2 of the Rules contains a checklist of matters for consideration at such a meeting. The International Bar Association Guidelines on Conflict of Interest in International Arbitration provide the recommended starting point for a discussion on whether a conflict of interest has arisen and what action should be taken in relation to it.
There followed a drinks reception.