Arbitration CIArb 11 11 14 - Chartered Institute of Arbitrators

Report
FINOLA O’FARRELL QC
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There must be a valid Arbitration Agreement
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The parties to the proceedings must have power to enforce
their rights under the Arbitration Agreement
Hurley Palmer Flatt Ltd v Barclays Bank plc [2014] EWHC
3042
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There must be a valid appointment by the parties or
nominating body
Eurocom Ltd v Siemens plc [2014] EWHC 3710
2
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Threshold is real possibility of unconscious bias
Lawal v Northern Spirit [2003] UKHL 35
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The test for apparent bias is whether the fair minded and
informed observer, having considered the facts, would
conclude that there was a real possibility that the Tribunal
was biased.
ASM Shipping Limited v TTMI Limited [2006] Lloyd’s LR
Vol. 1 375
A v. B [2011] EWHC 2345 (Comm)
Porter v. Magill [2002] 2 AC 357
3
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Agree the terms of reference
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Establish the Seat of the Arbitration
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Agree the applicable procedural rules
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Parties to identify the key issues to be determined
4
The Tribunal shall –
(a)
act fairly and impartially as between the parties, giving
each party a reasonable opportunity of putting his case
and dealing with that of his opponent, and
(b)
adopt procedures suitable to the circumstances of the
particular case, avoiding unnecessary delay or expense,
so as to provide a fair means for the resolution of the
matters falling to be determined.
[Section 33 Arbitration Act 1996]
5
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Disclosure – agree scope and volume of disclosure before
order is made
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Experts’ meetings and joint statements
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define the issues
early meetings can narrow issues
seek interim reports from the experts on progress
joint statements can limit the scope of reports
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Additional evidence: proportionality and fairness
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Extensions of time: flexibility within firm timetable
6
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Written opening and closing submissions – consider limiting length
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Timetable for hearing – consider chess clock
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Electronic bundles
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Oath / Affirmation for evidence
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Tribunal interventions
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Transcript
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Expert evidence should be the independent product of the expert.
An expert witness should provide an objective, unbiased opinion in
relation to matters within his expertise.
An expert witness should state the facts or assumptions upon which his
opinion is based and not omit to consider material facts which could
detract from his concluded opinion.
An expert witness should only opine on matters within his expertise.
If an expert's opinion is provisional or otherwise qualified, that should be
stated in the report.
If an expert witness changes his view on a material matter, such change
should be communicated to the Tribunal and other party.
Where expert evidence refers to supporting documents, these must be
produced at the same time as the exchange of reports.

Expert Reports – consider limiting length or requiring
summaries
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Supplemental reports during the hearing
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Evidence of experts of like discipline back to back or
simultaneous
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Hot Tubbing – pros and cons
9
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Consider the relevant expertise of the expert
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Consider whether all material facts and evidence have been
taken into account
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Experts make mistakes but not all mistakes affect the expert’s
credibility or opinion
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Beware the halo effect
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Ask for an explanation of anything that is unclear
10
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Summarise the key issues to be determined
It is not always necessary to decide every disputed fact or
submission
Identify the relevant evidence on each key issue
Summarise the points made by each party on each of the key
issues
Carry out a balancing exercise in respect of the evidence and
submissions to arrive at a conclusion on each key issue
Determine each element of the relief sought by the parties
Partial Award if interest and/or costs outstanding
11
Serious irregularity means an irregularity of one or more of the following
kinds which the court considers has caused or will cause substantial injustice
to the applicant a)
Failure by the tribunal to comply with section 33
b)
The tribunal exceeding its powers
c)
Failure by the tribunal to conduct the proceedings in accordance with
the procedure agreed by the parties
d)
Failure by the tribunal to deal with all the issues that were put to it
e)
Any arbitral or other institution or person vested by the parties with
powers in relation to the proceedings or the award exceeding its powers
f)
Uncertainty or ambiguity as to the effect of the award
g)
Fraud /contrary to public policy
h)
Failure to comply with the requirements as to the form of the award
i)
Admitted irregularity in the conduct of the proceedings or the award
12
The test is:
 Whether the matter complained of was an issue in the case
(or merely an argument)
 If so, whether it was put to the tribunal
 Whether the tribunal failed to deal with it
Petrochemical Industries (KSC) v Dow Chemical Co [2012] 2
Ll.Rep 691
Transition Feeds LLP v Itochu Europe plc [2013] EWHC 3629
(Comm)
SS Defence v Turner Estate Solutions Ltd [2014] EWHC 244
13
FINOLA O’FARRELL QC
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Rules make us behave honestly and respectfully

Many advocates in arbitration are subject to the codes of
conduct and regulation imposed by professional bodies
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But different professionals in different jurisdictions have
different expectations and understandings
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The absence of rules of conduct in arbitration can breed
procedural unfairness
Each party shall ensure that all its legal representatives
appearing by name before the Arbitral Tribunal have agreed to
comply with the general guidelines contained in the Annex to
the LCIA Rules, as a condition of such representation. In
permitting any legal representative so to appear, a party shall
thereby represent that the legal representative has agreed to
such compliance.
Article 18.5 LCIA Rules 2014
A legal representative should not engage in activities intended
unfairly to obstruct the arbitration or to jeopardise the finality
of any award, including repeated challenges to an arbitrator’s
appointment or to the jurisdiction or authority of the Arbitral
Tribunal known to be unfounded by that legal representative.
Paragraph 2, Annex to LCIA Rules 2014
17
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A legal representative should not knowingly make any false
statement to the Arbitral Tribunal or the LCIA Court.
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Paragraph 3, Annex to LCIA Rules 2014
18
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A legal representative should not knowingly procure or assist
in the preparation of or rely upon any false evidence
presented to the Arbitral Tribunal or the LCIA Court
Paragraph 4, Annex to LCIA Rules 2014
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A legal representative should not knowingly conceal or assist
in the concealment of any document (or any part thereof)
which is ordered to be produced by the Arbitral Tribunal
Paragraph 5, Annex to LCIA Rules 2014
19
During the arbitration proceedings, a legal representative
should not deliberately initiate or attempt to initiate with any
member of the Arbitral Tribunal or with any member of the LCIA
Court making any determination or decision in regard to the
arbitration (but not including the Registrar) any unilateral
contact relating to the arbitration or the parties’ dispute, which
has not been disclosed in writing prior to or shortly after the
time of such contact to all other parties, all members of the
Arbitral Tribunal (if comprised of more than one arbitrator) and
the Registrar in accordance with Article 13.4
Paragraph 5, Annex to LCIA Rules 2014
20
In accordance with Articles 18.5 and 18.6, the Arbitral Tribunal
may decide whether a legal representative has violated these
general guidelines and, if so, how to exercise its discretion to
impose any or all of the sanctions listed in Article 18.6.
Paragraph 7, Annex to LCIA Rules 2014
The legal representative must be offered an opportunity to
answer the complaint before a violation is found
Article 18.6 LCIA Rules 2014
21
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Written reprimand
Written caution as to future conduct in the Arbitration
Any other measure necessary to fulfil within the arbitration
the general duties required of the Arbitral Tribunal under
Articles 14.4(i) and (ii).
Article 18.6 LCIA Rules 2014
22
IBA Guidelines on Party Representation in International
Arbitration 2013
The Guidelines shall apply where at to the extent that the
Parties have so agreed, or the Arbitral Tribunal, after
consultation with the Parties, wishes to rely upon them after
having determined that it has the authority to rule on matters
of Party representation to ensure the integrity and fairness of
the arbitral proceedings.
Unless agreed otherwise by the Parties, and subject to the
exceptions below, a Party Representative should not engage in
any Ex Parte Communications with an Arbitrator concerning the
arbitration. [Guidelines 7-8]
Exceptions:
(a) Communications with prospective arbitrator to determine
availability and suitability
(b) Communications with prospective arbitrator to discuss
selection of tribunal chair
(c) Communications with prospective chair to determine
availability and suitability
A Party Representative should not make any knowingly false
submission of fact to the Arbitral Tribunal.
[Guidelines 9-10]
A Party Representative should not submit Witness or Expert
evidence that he or she knows to be false.
[Guideline 11]
A Party Representative should inform the client of the need to
preserve, so far as reasonably possible, Documents, including
electronic Documents that would otherwise be deleted in accordance
with a Document retention policy or in the ordinary course of
business, which are potentially relevant to the arbitration.
[Guideline 12]
A Party Representative should not suppress or conceal, or advise a
Party to suppress or conceal, Documents that have been requested by
another Party or that the Party whom he or she represents has
undertaken, or been ordered, to produce.
[Guideline 16]
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A Party Representative may assist Witnesses in the preparation of Witness
Statements and Experts in the preparation of Expert Reports.
[Guideline 20]
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A Party Representative should seek to ensure that a Witness Statement
reflects the Witness’s own account of relevant facts, events and
circumstances.
[Guideline 21]
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A Party Representative should seek to ensure that an Expert Report
reflects the Expert’s own analysis and opinion.
[Guideline 22]
If the Arbitral Tribunal, after giving the Parties notice and a
reasonable opportunity to be heard, finds that a Party Representative
has committed Misconduct, the Arbitral Tribunal, as appropriate may:
(a) Admonish the Party Representative;
(b) Draw appropriate inferences in assessing the evidence relied
upon, or the legal arguments advanced by, the Party
Representative;
(c) Consider the Party Representative’s Misconduct in apportioning
the costs of the arbitration;
(d) Take any other appropriate measure in order to preserve the
fairness and integrity of the proceedings.
[Guideline 26]
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Arbitration is a consensual process and cooperation between
the parties, their legal representative and the tribunal is
necessary for a fair and efficient reference
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Rules matter
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Consider adoption of Arbitration Rules that incorporate
ethical rules/guidelines
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Consider requiring the parties and their legal representatives
to sign up to agreed rules/guidelines.
FINOLA O’FARRELL QC

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