New York, 27 September 2018

Welcome address and introduction

Prof. Horacio Grigera Naón (Director, Center on International Commercial Arbitration, American University Washington School of Law) kicked off the ICC Institute’s annual New York Advanced Training by introducing the topics to be covered and the session leaders. Carolyn Lamm (Partner, White & Case), Marek Krasula (Counsel, ICC International Court of Arbitration/SICANA, New York), Mélida Hodgson (Partner, Foley Hoag LLP), Stefan Kröll (Director, Center of International Dispute Resolution, Bucerius Law School), and Yas Banifatemi (Partner, Shearman & Sterling).

Prof. Grigera Naón discussed the format and reminded the participants that the advanced level training was very interactive, designed to increase knowledge through discussion of diverse experiences, and with no correct answers. He noted that each topic would have brief introductory or guidance from the session leaders but that substantial time – generally an hour – would be devoted to the consideration of case scenarios during the break-out sessions.

Active case management techniques and effective management of arbitration

After Prof. Grigera Naón’s introduction, Carolyn Lamm made a thorough presentation regarding the tribunal’s authority and duty to administer a fair and efficient proceeding – one that maintains the equality between the parties. Among the efficiency techniques discussed was bifurcation of the proceedings, detailed Terms of Reference, a first procedural order that sets out how the proceedings will be administered, and the use of consolidation where applicable. Ms Lamm advised participants to seek the parties’ agreement on non-controversial issues early in the proceedings in a case management conference (ICC Arbitration Rules, Art. 24), and to consider documents-only proceedings where appropriate in smaller cases. She further noted that consideration should be given to limitations on submissions and witnesses, as well as expert reports. Further, videoconferencing could save money and time. In addition, pre-hearing conferencing is strongly advised to ensure smooth hearings. Ms Lamm noted that Appendix IV of the 2017 Arbitration Rules is instructive in considering the techniques discussed. The session concluded with a discussion of the pros and cons associated with the preparation of the Terms of Reference (ICC Arbitration Rules, Art. 23). Ms Lamm’s presentation was followed by an intervention from Marek Krasula who reacted to Ms Lamm’s presentation while providing insights and best practices from the ICC perspective on various active management techniques. Noting that proceedings last around two years, one of the key issues for the ICC International Court of Arbitration and its Secretariat was arbitrator availability. Picking up on Ms Lamm’s discussion of the case management conference, Mr Krasula noted the importance of having the clients participate so as to confirm their agreement with the procedural guidelines and agreements that their counsel enter into. He further noted that with respect to controlling disruptive party, a tribunal can sanction a party even during the proceedings (as opposed to in an award of costs at the end of proceedings). Mr Krasula highlighted that awards have to be consistent with the Terms of Reference and that the latter is what the Secretariat uses as the basis for its scrutiny process. Finally, Mr Krasula linked back to the issue of arbitrator availability and its impact on delays in the preparation and issuance of the award. He noted that the Secretariat has seen delays run from weeks to up to one year. A cautionary tale is that, as a result, arbitrator fees have been docked anywhere from 5% to 20% for delays.

Workshop. Presentations were followed by a very lively discussion of several case scenarios on active case management techniques led by Ms Lamm. There were varied opinions from the approximately eight groups that considered the previously distributed (electronically) case scenarios.

Arbitrators’ authority: scope and limits

Prof. Grigera Naón returned to lead the next session on the scope and limits of the arbitral tribunal. The notion of ‘authority of the arbitral tribunal’ is a complex and multifaceted one, which plays a key role in the creation of a suitable framework for the arbitration. It involves both the relationship between the arbitrators as well as the tribunal’s relationship with counsel and raises challenging questions. Among others: how far a dissenting opinion can go and still be effective and appropriate; what is the scope of the tribunal’s authority to sanction counsel’s wrongful conduct; what types of sanctions are available?

In discussing these various issues, Prof. Grigera Naón emphasized the importance of a collaborative spirit between arbitrators on a tribunal. He underscored that the president of the tribunal must limit advocate arbitrators and dissenting awards. Prof. Grigera Naón explored how far arbitrators can go with coercion – he noted that arbitrators’ power to sanction parties/counsel is limited. For example, it is difficult or impossible (or should be) to remove counsel.

Workshop. Prof. Grigera Naón then led the discussion of the case scenarios on arbitrators’ authority. One of the interesting case scenario looked at the differences between courts and arbitrators and the limits of the authority of both. Another scenario considered arbitrators’ powers to act ex aqueo et bono.

Allowing additional claims and parties

The afternoon session began with a consideration of multi-claim and multi-party arbitration, under the ICC provisions that allow additional claims and parties (ICC Arbitration Rules, Arts. 6 to 9). One of the aspects of the growing complexity of international commercial arbitration cases is the increasing number of arbitrations involving multiplicity of parties, including non-signatory parties, claims and cross-claims, and multi-contract disputes. This session addressed the main pitfalls as well as the challenging jurisdictional matters that arbitrators face when confronted with complex arbitrations. Issues examined in the consideration of adding non-parties or claims included the relevance of non-signatories, who performs the contract, the relationship between claims, contracts and facts relevant to a dispute. These issues are magnified when dealing with sovereign States or State parties. Accordingly, there was some discussion of how the 2012 revisions to the ICC Arbitration Rules – principally Articles 6(3) and 6(4) – gave the ICC Court Secretary General greater discretion over the initiation or progress of such claims, and how that discretion could safeguard sovereignty concerns when additional claims or parties are raised in arbitrations involving States.1

Workshop. The presentations were followed by the participants’ discussion in a lively debate of several of the previously circulated case scenarios which posited the addition of parties that were not signatories to contract, the effect of different arbitration agreements, and indeed different or no institutional rules on joinder of parties and claims.

Managing the exchange of information

The final session concerned document exchange. Obtaining and presenting information is of paramount importance when preparing an international commercial arbitration case. The mission of the arbitral tribunal lies in managing such exchange of information, taking into consideration the different cultural legal approaches of the parties and their counsel and the particular circumstances of each case. Yas Banifatemi discussed how arbitrators should deal with issues such as 1) the management of electronically stored information, 2) the preservation of the confidentiality of information and related issues of applicable law, 3) protection of trade, technological and commercial secrets, 4) privacy of the arbitral proceedings; and 5) the ethical conduct of the parties.

Workshop. The New York Institute Advanced Training conference ended with a discussion of the case scenarios on managing the exchange of information. Issues such as culture, third party document production, metadata, and proper scope of document production were debated.


1
See para. 61 of the ICC Report on States, States Entities and ICC Arbitration: ‘Articles 6(3) and 6(4) of the 2012 ICC Rules were drafted in the expectation that the Court would maintain the rigour it applies to requests for the extension of an arbitration agreement to a non-signatory party, whether public or private, and that the Secretary General would be more likely to exercise his/her discretion and refer this matter to the Court’, available at https://iccwbo.org/publication/icc-arbitration-commission-report-on-arbitration-involving-states-and-state-entities-under-the-icc-rules-of-arbitration/