How can arbitrators ensure the fair exchange of documents, and what role should arbitrators play in calling expert witnesses? When and how, if at all, should interim measures be used in international arbitration proceedings? These questions were tackled during a breakout session titled Arbitral Legitimacy: The User’s and Judge’s Perspectives at the ICCA Miami 2014 Congress, on Tuesday, 8 April. The panelists included in-house attorneys, Karl K. Hennessee, Vice-President of Public Law & Technology with Halliburton Energy Services, Clyde W. Lea, Deputy General Counsel of Litigation and Arbitration with ConocoPhillips, and Judge Vance E. Salter of the Third District Court of Appeal of Florid [...]
On Monday, 7 April, at the 2014 ICCA Miami Conference, the international-arbitration community gathered to address the question, “Who are the arbitrators?” The answer, panel attendees were told, was “male, pale, and stale” – that is, a large majority of the individuals chosen to serve as international arbitrators are male, from North America or Western Europe, and generally quite senior. Whether this reality threatens the legitimacy of international arbitration and motivates the community to aspire to make arbitration more diverse and inclusive and, if so, how that goal can be reached, were the focus of the panel and the audience’s spirited discourse throughout the session.
The most quintessential element of international arbitration is an impartial, independent and neutral tribunal. Where impartiality and independence of the arbitrators is equated with direct relation to or bias towards one of the parties, neutrality is related to the nationality of the arbitrator. In international sphere, the “appearance of neutrality” is considered equally important, meaning an arbitrator is neutral if his nationality is different from that of the parties. Nationality generally, is not an issue if the parties have agreed to appoint an arbitrator of the same nationality as that of one of the parties but it has a different impact when national courts acts as the appointing [...]
and Niyati Gandhi
A done to death topic in arbitration gatherings in emerging markets, particularly in India, is the debate about ad hoc versus institutional arbitration. The basic arguments in favour and against both have been discussed time and again. However, renewed support for institutional arbitration can be found in two recent judgments from the courts in India arising out of ad hoc arbitrations.
Recently, in the much hyped ruling in Union of India v Panacea Biotec (Panacea), Justice Vipin Sanghi of the Delhi High Court passed an order terminating the mandate of an arbitral tribunal in accordance with the mutual consent of the parties. The parties had collectively moved the court to [...]
I. Power To Sanction
Courts generally enjoy power to enforce procedural rules and orders by various means, such as fines, adverse inferences, cost/fee awards, preclusion of evidence, and even default judgment. Surprisingly, when arbitrators employ such measures, they enter a legal frontier of unsettled law. Why? An arbitrator’s procedural power derives from private contract, not public law, and arbitration contracts almost never overtly address the arbitrator’s power to remedy party misbehavior. Even when such contracts adopt procedural rules issued by an arbitral institution, those rules may say little or nothing about sanctions. So, arbitrators must often explore the boundaries of thei [...]
Unable to make this year’s ASA Conference I accepted the invitation to submit a brief paper which I entitled: “Six Modest Proposals Before You Get to the Award”. A principal theme was Tribunal logistics and attention.
I was happy to receive some positive feedback and have given this theme more thought. Arguably I have become yet more modest as I now cutback to three chapters and a few anecdotes:
1. Before Trial
Often the first meeting of Tribunal and parties is exclusively devoted to procedure and scheduling; this is a waste. When possible counsel should be told to be prepared at the first procedural meeting or conference call with a “no prejudice”, brief but intellig [...]