Collegiality Rules in Arbitration
Whatever your general proclivity is with opposing counsel, civility and collegiality are critical in ICC arbitrations. Throughout the process, there will be many decisions that you will need to recommend to the arbitrator with opposing counsel. The framework for many of the procedures is not defined as in court litigation under a civil practice act. Discovery, evidentiary rules, use of depositions, laying foundation, authentication, motions in limine, Daubert motions and related matters will be constantly discussed with opposing counsel. If you are a jerk early in the process or do not provide for certain hospitalities, it will come back to bite you or your client later in the proceedings. With the tight timelines in ICC arbitration, there is no doubt that both parties will need accommodations from the other side. Be smart and professional.
Discovery
An agreed upon Discovery Plan to address the use of interrogatories, request for production, depositions, affidavits and admissions can be invaluable in an Arbitration. A Discovery Plan can help to streamline the discovery process to reduce costs and attorneys fees and to avoid certain battles over discovery rights. If possible, this plan should be done prior to the selection of an arbitrator so that the arbitrator will not likely add any extra discovery requirements and can early on in the process guide the parties in adherence to the plan. The best way to obtain an agreed upon Discovery Plan is to reach out to the other side to address the needed information and realistic timelines. This is also a good opportunity to determine the likelihood of whether or not the other side is going to file counterclaims, which could impact the scope of discovery in the Arbitration proceedings.
Interaction with Local Counsel and Translator Needs
Early on, you should request interaction with your client’s local counsel or request your client gain local counsel in the other country or countries involved. Also, remember with local counsel in another country to make your directions explicit. In one arbitration, we sent local counsel some information which we said explicitly,This information is attorney-client privileged and should not be divulged outside of the attorney-client relationship. We were working with local counsel on gaining some clarifications from an expert in that country. Local counsel wanted to send our email inquiries directly to the expert, explaining that the information was privileged in their country. We explained that in our country, that once that information reached the testifying expert, the information would have to be revealed if subpoenaed. Different rules within different countries may yield different results, so you need be cordial but direct with local counsel.
A second area of expense is going to be the need for a translator and often an official translator thereafter. Most likely, you will get into some disputes about the official translations of certain documents, especially communications. If early on, the parties agree to one official translator, it can benefit both parties. However, each party will still need its own translator to determine attorney-client and work product before disseminating certain documents to the other side or to the official translator. The translation of documents can be a significant expense in international arbitrations and litigation.
Terms of Reference
Early in the arbitration process the ICC requires the Terms of Reference to be drafted by the Parties. Some arbitrators view the Terms of Reference like a pretrial order, even though it is usually filed before discovery begins.
One area of the terms of reference, which should be carefully scrutinized, is the “Summary of Claims section. While an authoritative treatise (fn 1) denotes that that the Summary of Claims is just as stated, only a summary, some parties will suggest that the Summary of Claims general description may expand claim rights beyond what is plead in the Request for Arbitration (basically the complaint) or Answer and Counterclaims to the Request for Arbitration. Beware of very general, non-limiting language in the claim descriptions in the Summary section that are brought by your opponent. Such language may reference potential claims, which have not been alleged specifically, to come from discovery documents not yet served or requested at that time. If you are placing such language into the Terms of Reference, it may benefit your client. On the other hand beware such language from your opponent in that section.
Decisions But Not Awards
Arbitrators are faced with a variety of motions and issues during the arbitration process. Arbitrators may make informal rulings, or the arbitrator may make an official award. Early on, before the arbitrator is selected, you may want to ask the potential arbitrator regarding his willingness to draft award decisions as opposed to informal rulings. If the arbitrator makes informal rulings, those rulings are subject to review by the ICC . In addition, a limited right for an appeal to the ICC is available for official Awards. However, without a specific Award, such rights may not exist. (Please note that ICC rules may have changed since the publication of this post.)
Greg Hecht has been a practicing attorney for 28 years. He has been lead counsel in over 1000 hearings and 300 trials. His specialties include international arbitration, business, commercial and real estate litigation, local government law, commercial landlord/tenant, contract, 42 USC 1983, zoning, land use, employment law, personal injury & wrongful death, and litigation.
Full bio at https://hechtwalker.com/about/attorneys/greg-k-hecht/