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 [...]
by James Menz and Anya George, Schellenberg Wittmer
The (proper) use of administrative secretaries is a recurring topic in the arbitration community. The debate has flared up again in recent months, following the issuance, in August 2012, of the ICC Secretariat’s new Note on the Appointment, Duties, and Remuneration of Administrative Secretaries and, a few months after that, the publication of the Queen Mary / White & Case International Arbitration Survey.
The issue which has always prompted the most intense debate is the scope of the administrative secretaries’ duties. The Queen Mary / White & Case survey shows some interesting figures in this regard: only 4% of the international arbitrator [...]
The Danish Institute of Arbitration (“DIA”) revised its rules effective May 1, 2013, an overhaul from the prior 2008 iteration of its rules that brings the DIA rules into line with those of leading arbitral institutions. As part of these revisions, the DIA has both reorganized the structure of its rules and updated various key provisions. Among other changes, notable amendments include new provisions for the consolidation of cases and joinder of parties, new guidelines for arbitrator independence, and new provisions for the appointment of interim and emergency arbitrators.
Overall, the DIA has clearly made an effort to make its arbitral rules friendlier to international disputes. Th [...]
Improving the search for information about arbitrators
Last week I received an invite to a summer gathering organized by English mediator, David Richbell. One of the events is “Speed dating: Senior mediators including, amongst others, Michel Kallipetis, Liz Birch, Nicholas Pryor available for ten-minute personal interview.”
Imagine how such an innovative method for choosing an arbitrator might work: How long do you think an arbitration should last? Do think it is appropriate for a tribunal to decide dispositive issues at the outset of a proceeding? Ding!
Would parties say you manage proceedings with a firm hand?
[Announcer] “Time’s up! Please move to your next candidate.”
How long do you think an arbitration should last?
Do think it is appropriate for a tribunal to decide dispositive issues at the outset of a proceeding?
The U.S. Federal Arbitration Act (FAA) provides that a federal district court may vacate an arbitration award, among other reasons, “where there was evident partiality or corruption in the arbitrators.” 9 U.S.C. §10(a). However, as illustrated by a recently decided case in the Southern District of New York, U.S. district courts apply different standards of “evident partiality,” depending on the circuit in which they are located.
In Ometto v. ASA Bioenergy Holding A.G., decided this past January, the petitioners (collectively “Ometto”) brought a motion to vacate two arbitration awards against them totaling almost $120 million. Ometto’s motion was based on the fact that after [...]