Conference Powerpoint Presentations

Inaugural Conference of CIArb International Young Members Group

The Irish Branch Welcomes you to Dublin


Programme For The DayTime Title Speaker

9.30 to 10.00 Conference Launch Pat Brady & Justice Peter Kelly

10.00 to 10.45 Challenges & Benefits Facing Young Arbitration Practitioners

Doug Jones

10.45 to 11.45 International Best Practise, What Can Arbitral Seats Learn From One Another

Panel Discussion

11.45 to 12.15 Coffee Break

12.15 to 1.15 Evolving Practise Under The New York Convention

Klaus Reichert

1.15 to 2.30 Lunch

2.30 to 3.30 Investment Arbitration, Fit For Purpose? Panel Discussion

3.30 to 4.30 International Arbitration, Emerging Trends Panel Discussion


Pat Brady FCIArb, Chair CIArb, Irish Branch

Mr. Justice Peter Kelly of the High Court Assigned Irish

Arbitration Judge

Conference Launch


Doug Jones, AM FCIArb, Wordwide President of CIArb and Partner at Clayton Utz, Sydney Australia.

Session Moderator:

Dr Breda Daly, Lecturer in ADR, Dublin City University.

Session One


Challenges and Benefits Facing Young Arbitration Practitioners

Professor Doug Jones AM

President, CIArb


Overview

• The Chartered Institute of Arbitrators

• Career pathways

• The region

• Becoming an arbitrator/mediator


The Chartered Institute of Arbitrators

• 12,000 members

• Members from over 100 countries

• Branches in over 30 countries

• World-respected international ADR accreditation body and learned society

• Becoming involved in CIArb


Pathways

• Practicing arbitration — both domestically and internationally

• Professional development

• Mooting

• Speaking, writing and networking

• Postgraduate study

• Assisting tribunals

• Working for ADR institutions


The Region

• Ireland's domestic arbitration reforms

• The UNCITRAL Model Law

• Promoting Ireland as an attractive venue for international arbitration

• Connect to whatever exciting is happening in your region


Becoming an arbitrator/mediator

• Practice

• Peer appointments

• Institutional appointments

www.claytonutz.com


Panel Discussion - International Best Practise, What can arbitral seats learn from one another?

Gordon Blanke

Siobhan Kirrane

Mandy Moore

Dr. Beata Gessel

Session Moderator: Dermot Durack

Session Two


Gordon Blanke MCIArb,

Counsel, Habib Al Mulla & Co,

Dubai, UAE

Arbitration in the UAE


Hot Topics in Arbitration in the UAE

• Impact of the global economic crisis• Special procedures/committees/tribunals for

governmental entities? (e.g. Dubai World Special Tribunal)

• Enforcement of foreign awards (role of the NYC)• Adoption of a new Arbitration Law


Best Practices/Features of Arbitration in the UAE

• The institutional co-existence of DIAC and DIFC-LCIA (civil/common law jurisdiction), institutional competition

• Development of international best practice standards by arbitration organisations in the region (DIAC, CIArb etc.)

• Import of best practices by international arbitration practitioners (counsel, arbitrators) acting in the region


Pupilage & Mentoring of Arbitration Trainees/Practitioners

• Broad offering of training courses dispensed by arbitration organisations (DIAC, ICC, CIArb etc.)

• Initiatives by DIAC to mentor inexperienced local counsel on a one-to-one or group basis

• Initiatives of ICC UAE in creating easily accessible practitioner materials in English

• Traineeships in arbitration departments of international and local firms/ paralegal positions in arbitration organisations


Promotion of Quality in the UAE

• Internal restructuring of DIAC (new Director, international case-management teams etc.)

• Creation of competition between regional arbitration organisations (ADCCAC, DIAC, DIFC-LCIA, other regional providers)

• Introduction of arbitration modules in university curricula• Creation of high-quality infrastructural and legal

framework


Cost-reducing Efforts in Arbitration in the UAE

• Cost-conscious pricing strategies of legal counsel, competitive professional environment

• Procedural economy of arbitration proceedings (consolidation, appointment of sole arbitrator etc.)

• Exploitation of settlement opportunities by the parties• Encouragement of voluntary performance of awards


Siobhán Kirrane

A&L Goodbody

Best International Practice What Arbitral Seats can learn

from one another


Ireland as an arbitral seat

New legislation

What Ireland has learned

What others can learn from Ireland


Successful industries in Ireland

Outward looking

Focus on best practice


New Legislation

ICCA Conference 2008Seminar in April 2007Collaboration Government Arbitration Community


New Legislation

UNCITRAL Model Law Adopted in over 50 countries Tried and tested Body of case law

Arbitration Act 2010 Domestic and International



Additions to the Model Law

No appeal from High Court

Arbitration Judges

Benefits



Attitude of Judiciary

Mr Justice Frank Clarke

Strong regard to decisions in other jurisdictions

Barnmore Demolition Case


What others can learn from us

Collaboration

Symposium in January 2009

Report submitted to Department of Justice

Grounds of challenge amended


Arbitration Ireland

Advisory Board Lucy Reed – Freshfields Bruckhaus Deringer Donald Francis Donovan – Debevoise & Plimpton John Gardiner – Skadden Arps Meagher & Flom Audley Sheppard – Clifford Chance Pierre-Yves Tschanz – Tavernier Tschanz


In Conclusion

Model Law

Courts and Government

supportive of arbitration

Arbitration Ireland


Canada As the Arbitral SeatMandy E. Moore, FCIArb

Borden Ladner Gervais LLP

Ottawa, Canada

[email protected]


A Primer on Canada• 10 provinces and 3 territories• Total population of 34,349,200• Key arbitration cities – Vancouver, Montreal, Toronto,

Calgary and Ottawa• Bilingual – English and French• Multi-cultural• Common and civil law legal systems


A Primer on Canada – cont’d• Strong tradition of ad hoc arbitrations

• Arbitration Institutions – BCICAC, ADR Institute of Canada, ICC, LCIA and AAA/ICDR


A Primer on Canada –cont’d• Arbitrations governed primarily by provincial legislation

• Provincial legislation adopting Model Law• Provincial and federal legislation enacting New York

Convention• No mandatory procedural rules• Tribunals often employ IBA Rules on the Taking of

Evidence in International Commercial Arbitrations


Canadians Involved in the

CIArb• Associates – 28• Members – 38• Fellows – 68• Chartered Arbitrators - 12


Perception of Canada• Taylor Wessing Global Dispute Resolution Report (2009)• Conclusions on Canada:

• Predictable and reliable jurisdiction to determine disputes

• Ranked 1st – best value for money

• Ranked 3rd – integrity of procedure and judiciary

• Ranked 6th – availability of competent professionals

• Ranked 7th – adequacy of a body of clear law


Costs Treatment in Canada• International and domestic arbitrators have the

discretion to make an award of costs, including:• Fees and expenses of arbitrators

• Fees and expenses of expert witnesses

• Parties’ legal fees and expenses

• Fees of any administering institution

• Unsuccessful party generally required to pay all or substantially all of successful party’s costs

• Arbitrator and counsel rates are reasonable and generally lower than other major arbitral seats


Arbitral Jurisprudence

• Increasing in frequency• Canadian courts are respectful of arbitral proceedings• Arbitration agreements are broadly interpreted and

enforced• Concepts of separability and kompetenz-kompetenz

well recognized• Stay of Court proceedings in favour of arbitration

frequently granted


Supreme Court of Canada

Decisions• Desputeaux v. Éditions Chouette (1987) Inc. (2003

SCC 17)• Union des consommateurs v. Dell Computer Corp.

(2007 SCC 34)• Yugraneft Corp. v. Rexx Management Corp. (2010

SCC 19)• Seidel v. TELUS Communications Inc. (2011 SCC 15)


Arbitrator Independence & Impartiality

• Telesat Canada v. Boeing Satellite Systems International, Inc. (2010 ONSC 4023)

• Removal of Chair for reasonable apprehension of bias.

• IBA Guidelines on Conflicts of Interest in International Arbitration


Thank You

Mandy E. MooreBorden Ladner Gervais LLP

(613) 787-3500

[email protected]


Dr Beata Gessel-Kalinowska vel KaliszDublin, 11 November 2011

Lewiatan Court of Arbitration - an example of exchange

of ideas among arbitral institutions.


• The public interest is best served by the free exchange of ideasJohn Kane

• If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple.

But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.George Bernard Shaw


Historical context:

• Arbitration in Poland between 1945 and 1989: practically only international disputes.

• 2005 Uncitral Model Law adaptation.

• Problem with arbitrability: corporate disputes.


2005: establishment of the Lewiatan Court of Arbitration

• A need for arbitration alternatives.

• The role of Lewiatan as an organization of employers in Poland.

• Rules based on 2005 amended law, however still rooted in the traditional solutions (in particular, list of arbitrators).


2005: establishment of the Lewiatan Court of Arbitration

• 2009 - Program for promotion of arbitration funded by the EU: opening for foreign solutions and institutions, including cooperation with CIArb, ICC, VIAC.

• 2010 - Fast track.

• 2011- New rules under preparation: emergency arbitrator, no limits whatsoever in choosing arbitrators, time limits in resolution of disputes.


Thank you for your attention !

Dr Beata Gessel-Kalinowska vel Kalisz

President of the Lewiatan Court ofArbitration

[email protected] www.arbitrationcourt.org.pl

mailto:[email protected]

http://www.arbitrationcourt.org.pl/


Panel Discussion – International Best Practise: What can arbitral seats learn from one another?

Dermot Durack, Session Moderator

Session Two - Questions


Coffee Break- 12.15-12.45


Klaus Reichert, Senior Counsel, Law Library, Dublin &

Brickcourt Chambers, London.

Session Moderator:

Gabriel Daly Partner, Beauchamp's Solicitors, Dublin.

Session Three


Evolving Practice under the New York Convention

Klaus Reichert SC

Evolving Practice under the New York Convention Klaus Reichert SC


New York Convention

• Fundamental bedrock of international commercial arbitration since 1958, the New York Convention on the Recognition and Enforcement of Arbitral Award.

• Two functions, recognition and enforcement of arbitral agreements and arbitral

awards. • Particularly limited and circumscribed exceptions. • Focus of these remarks on enforcement of arbitral awards. • Party wishing to enforce an award presents award (or duly authenticated

copy) and original arbitral agreement (or duly authenticated copy) to enforcing court (Art IV) - this satisfies burden of proof and triggers international obligation (Art III).

• Defendant then has limited options and the burden lies with it in respect of proof:


New York Convention

Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or


New York Convention

(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or


New York Convention

(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.


New York Convention

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country


New York Convention

• Long-held assumption as to two features - pro-enforcement bias throughout the World and the Art V grounds are discretionary even if proven.

• Hugely successful convention and arguments at ICCA 2008 for change were sternly resisted.

• Notable feature, always cited, is the abolition of double exequatur which was the position prior to 1958.


New York Convention

• Recently cases in UK and Australia have made practitioners look at practice under the New York Convention a little differently and consider additional steps: Dallah v Pakistan and Altain Khuder v IMC Mining.

• Concluding question: the 2008 debate, a fresh look again at what is now called the Miami Draft, or a statement on the existing Convention, or nothing at all.


Lunch Break – 1.15 to 2.30


King’s Inns, Henrietta Street


Panel Discussion – Investment Arbitration: Fit for purpose?

Luis Guerrero

Brian Hutchinson

Thomas Sebastian

John Gaffney

Session Moderator: Colm O’ Hoisin Senior Counsel

Session Four


Investment Arbitration in South America

Rules and TrendsLuis Guerrero


Frame on the First Half of the 20th Century

Naciolism from the three first decades of 20th Century and Military

Ditatorship from the Sixties to the Eighties

Features:

- State as the only economical agent in the international context

- Huge amount of international loans

- Investments only in Brazil – Power Plants, roads, seaports


From The Ninities – The Turning Point A New Model of Arbitration

- Real Plan – Economical Stabilization- Privatization of public companies in strategic fields and infrastructure- New legal Frame on particular and government relationship:

- Arbitration from Law 9.307/96: – binding process – arbitration award has the same

effects of a judicial award

Public Utilities and

Particular ManagmentLaw 11.079

BiddingLaw 8.987

Alternative Dispute

Resolution


From The Ninities – The Turning Point A New Model of Arbitration

Bilateral Investment Threaties – BITs (source: UNCTAD): 14 has been signed by Brazil but they were not analysed by Brazilian Congress:

Country Date Country Date

Portugal 2/9/1994 Italy 4.3.1995

Chile 3/22/1994 Venezuela 7.4.1995

United Kingdom 7/19/1994 South Korea 9.1.1995

Switzerland 11/11/1994 Germany 9.21.1995

Denmark 3/4/1995 Cuba 6.26.1997

France 3/21/1995 Holland 11.25.1998

Finland 3/28/1995 Belgium and Luxemburg 1.6.1999


Century 21th – Brazil as an Investor – A New role in the World

- STF (Brazilian Supreme Court) – Arbitration as a dispute resolution tool in acordance to Brazilian Constituition

- Argentinian Crisis – Somewhere in the Past? Brazil in 1987

- STJ (Brazilian Highst Legal Court) - State and Arbitration – Power Plant Case – AES Uruguaina (2006)

Brazilian New Role in the World – Bolivia and Equador, Angola, World Cup and Olympics Games


Conclusion

Brazil came from a system where economy have been controlled by the government to na open system

ADR represents na expression of this shift in the government economical approach

Challeng: how to behave in an context in which Brazil is the Investor?


MUITO OBRIGADO!

THANK YOU!

[email protected]


Brian HutchinsonSenior Lecturer, University College Dublin


Thomas SebastianSenior Associate, Allen & Ovary, London.


The Future of Investment Treaty Arbitration

John Gaffney


The European Union and Investment Treaty Arbitration


Topical issues

―Intra-EU BITS

―Extra-EU BITs

―Institutional Issues

―EU law and investment treaty arbitration


Intra-EU BITs


Intra-EU BITs

• EU Commission's court actions and encouragement" of their termination

• Application of EU law


Extra-EU BITs


Extra-EU BITs• Lisbon Treaty (Member States’ v. Commission’s interpretations)

• Communication on developing a comprehensive European international investment policy, draft Regulation, Council and EP responses

• FTAs (e.g., EU-Canada FTA - investment protection sections)

• Commission's court actions (Finnish case etc. v. Slovak case)


Institutional Issues


Institutional Issues• EU is not a State

• A European Center for Settlement of Investment Disputes?

• Preliminary reference procedures?

• Role of ICC, LCIA etc?


Relationship between EU Law and investment treaty arbitration


Relationship between EU law and investment treaty arbitration

• Options:

― No role? (e.g., Eastern Sugar v Czech Republic)― EU law as “a relevant fact” (e.g., AES v Hungary)― EU law as applicable law (e.g., Eureko v Slovak

Republic)

• Who preserves the integrity of EU law?


Panel Discussion – International Arbitration, Fit for purpose:

Colm O’ Hoisin

Session Four - Questions


Panel Discussion – International Arbitration, Emerging Trends

Conor Owens

Stacey Barnes

Goncalo Malheiro

Laurence Burger

Session Moderator: Arran Dowling-Hussey FCIArb, B.L

Session Five


COSTS IN ARBITRATION

ANALYSIS AND EMERGING TRENDS

Conor Owens, Associate, Maples & Calder


TOPICAL ISSUE

• Lack of funding is a major consideration

• Growth in complaints that the costs of arbitration are too high

• Litigants, Solicitors and Arbitral Institutions are all looking at ways of reducing cost expenditure

• New industries are emerging as a result of the difficulties in funding litigation

• For any practitioner controlling cost is a major contributor to repeat business


TALK WILL FOCUS ON:

• WHERE COSTS ARE BEING SPENT

• TECHNIQUES FOR CONTROLLING COSTS

• RECENT COST INITIATIVES


1. WHERE ARE MOST COSTS INCURRED?

• CIARB survey in 2011

• Party Costs and Common Costs

• Party Costs – 74% on legal fees (including barristers); 10% on experts; 8% on external expenses; 5% on witnesses; 3% for management costs.

• Common Costs – 60% on arbitral fees; 40% hearing costs.


WHERE ARE COSTS INCURRED:

• Claimant’s costs are higher than a Respondent’s (by 12%)

• Respondent’s spend more on experts (by 55%)

• Common law less costly than civil law

• Of party costs, 37% are spent on the hearing

• Average length of an arbitration is between 17 and 20 months• Length affects party costs but not common costs


2. HOW ARE COSTS BEING CONTROLLED/REDUCED?

• A CONSIDERABLE EMPHASIS ON COST CONTROL IN RECENT YEARS

• THE NEW ICC RULES INCLUDE PROVISIONS DESIGNED TO REDUCE COSTS

Case management techniques (Article 24 and Appendix IV)

• UNCITRAL RULES 2010 HAVE PROVISIONS DEALING WITHReasonableness of costs incurredDetailed review of costs


HOW ARE COSTS BEING CONTROLLED?

• It is accepted that the key to controlling costs is the early understanding of the issues in dispute. This will facilitate:• Avoiding irrelevant evidence;• Avoiding irrelevant discovery;• Efficient briefing of experts;• Effective case management.

• But, compare civil law and common law.


3. RECENT COST INITIATIVES

• AFTER THE EVENT INSURANCE

• DISPUTE RESOLUTION FUNDING

• CONDITIONAL FEE AGREEMENTS

• COST CAPPING


RECENT COST INITIATIVES• After The Event Insurance

• Becoming more popular

• Insures against an adverse costs order

• Legal opinion that case has more than 60% chance of success

• Level of premium can be staggered – early settlement

• Payment of premium can be “deferred and contingent upon success”Premium can be recovered as part of the costs


RECENT COST INITIATIVES• Dispute Resolution Funding

• Third party pays the costs of dispute resolutionUsually where the Claimant has financial difficulties

• Commonly undertaken by sole purpose investment funds

• 60% chance of success

• Defendant must have means to pay

• Irish Courts have shown a willingness to hold funders liable for adverse costs orders against the funded party


CAPPING COSTS

• Allowed by certain arbitration rules and national legislation• UK Arbitration Act s.65• ICE Arbitration Procedure• Construction Industry Model Arbitration Rules

• Seems that Arbitrators have a wider discretion than Courts to cap costs

• Worth considering if your client has limited means


CONCLUSION

• THE COSTS OF ARBITRATION ARE A PROBLEM WHICH MUST BE TACKLED BY:• Practitioners• Arbitrators• Arbitral Bodies• Clients

• THE FLEXIBILITY OF THE ARBITRAL PROCESS IS THE KEY TO A SOLUTION


International Arbitration: Emerging Trends

What a Common Law Lawyer Should Know

Stacy L Barns


The Emerging Paradigm

• A Convergence of Common Law and Civil Law Traditions

• Taking a “Best of Both Worlds” Approach to the Common Law and Civil Law

• Procedural Flexibility - Allowing a Tribunal to Tailor the Procedures of the Case to the Particulars of the Case

See Gabrielle Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J.

Transnat'l L. 1313 (2003); Siegfried H. Elsing & John M. Townsend, Bridging the

Common Law—Civil Law Divide in Arbitration, 18 Arb. Int’l 59 (2002).


Topics

• Witness Statements & Their Interaction with Witness Testimony

• Witness Examination & Preparation

• Trends in Expert Witness Examination


Witness Statements


Witness Statements: The Basics• Origin in the Civil Law Tradition

• Rooted in “A Distrust of Oral Evidence”

• Civil Lawyers’ Belief that Documents are the Best Evidence

• Contains a Statement of the Witness’s Fact Testimony

• Typically Prepared by Attorneys

See James Beardsley, Proof of Fact in French Civil Procedure, 34 Am J. Comp. L. 459 (1986); Siegfried H. Elsing & John M. Townsend, Bridging the Common Law—Civil Law Divide in Arbitration, 18 Arb. Int’l 63 (2002); David P. Roney, Effective Witness Preparation for International Commercial Arbitration, 20 J. Int’l Arb. 429, 430 (2003).


Witness Statements:Drafting Considerations

• The Result of a Careful Interview of the Witness

• Written in the Witness’s Own “Voice” and Manner of Speaking

• Detailed Statement of Fact

• Deal with the Facts Known to the Witness

• Avoid Legal Conclusions and Terms of Art

• The Witness Should Participate Closely in the Drafting and Edit of the Statement

• The Witness Should be Comfortable and Confident in the Contents


Witness Statements:IBA Rules of Evidence

IBA Rules on the Taking of Evidence in International Commercial Arbitration• Adopted in 1999, with 2010 Revisions

• A Result of the Differing Approaches of the Common and Civil Law Traditions

• An Attempt to Harmonize International Arbitration Practice

• Guidelines, Rather than Binding Rules

• May be Incorporated into an Arbitration Clause or Procedural OrderRules and Commentary available online at: www.ibanet.org



IBA Rules of Evidence, art. 4.4

The Arbitral Tribunal may order each Party to submit within a specified time to the Arbitral Tribunal and to the other Parties Witness Statements by each witness on whose testimony it intends to rely, except for those witnesses whose testimony is sought pursuant to Articles 4.9 or 4.10. If Evidentiary Hearings are organized into separate issues or phases (such as jurisdiction, preliminary determinations, liability or damages), the Arbitral Tribunal or the Parties by agreement may schedule the submission of Witness Statements separately for each issue or phase.


Witness Statements: IBA Rules of Evidence

IBA Rules of Evidence, art. 4.5 - Each Witness Statement shall contain:

(a) the full name and address of the witness, a statement regarding his or her present and past relationship (if any) with any of the Parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant to the dispute or to the contents of the statement;

(b) a full and detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute. Documents on which the witness relies that have not already been submitted shall be provided;

(c) a statement as to the language in which the Witness Statement was originally prepared and the language in which the witness anticipates giving testimony at the Evidentiary Hearing;

(d) an affirmation of the truth of the Witness Statement; and

(e) the signature of the witness and its date and place.



• Revision of Witness Statements - IBA Rules of Evidence, art. 4.6

• A Witness Giving a Statement Must Appear at the Evidentiary Hearing Upon Request. Failure to Do So will Result in the Tribunal Disregarding the Witness Statement - IBA Rules of Evidence, art. 4.7

• Failure to Request a Witness’s Presence at the Hearing Does Not Constitute an Agreement as to the Truth of a Witness Statement - IBA Rules of Evidence, art. 4.8


Witness Statements:Practicalities of Use

• Useful to the Arbitral Tribunal for Learning the Factual Framework of the Dispute

• Main Vehicle for Presentation of Background Facts and Non-Essential Facts in Dispute

• For Essential Facts in Dispute, the Statements Will be Supplemented by Direct Examination, Cross-Examination, and Re-Direct of the Witness in Question


Witness Examination


Witness Examination: Basics• Acknowledgement of Witness Examination as a Strength of

the Civil Law System

• Common Law Lawyers Are Often Better Trained at Witness Examination, Especially Cross-Examination

• Common Law Arbitrators, As Opposed to Civil Law Arbitrators, Are Often More Comfortable With Extended Witness Examination

See generally LAWRENCE W. NEWMAN & BEN H. SHEPPARD, JR., Take the Witness: Cross-

Examination in International Arbitration (2010).


Witness Examination:Interview & Preparation

• Some Jurisdictions Forbid Interview or Preparation of Witnesses

• “It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them.” IBA Rules of Evidence, art. 4.3; see also Swiss R. Arb. 25(6); LCIA Arb. R. 20.6.

• Still an Ethical Concern for Some Attorneys

• American Model – Extremely Thorough Preparation, Practice and Role Play of Hearings

See Ian Meredith & Hussain Khan, Witness Preparation in International Arbitration – A Cross Cultural Minefield, Mealey’s

Int’l Arb. Rep., Vol. 26, No. 9, Sept. 2011 at 1, available online at: www.klgates.com


Witness Examination:IBA Rules of Evidence

• Parties Must Identify Witnesses upon whose Testimony They Intend to Rely. IBA Rules of Evidence, art. 4.1.

• Any Person May Give Testimony, Including Party Representatives. IBA Rules of Evidence, art. 4.2.

• Parties May Request the Arbitral Tribunal to Issue a Subpoena to Third Party Witnesses. IBA Rules of Evidence, art. 4.9.

• The Tribunal May Order as Party to Produce a Witness for Examination. IBA Rules of Evidence, art. 4.10.


Witness Examination:Need for Direct Examination

• Some Tribunals Feel There Is No Need for A Direct Examination as the Tribunal Already Has the Witness Statement. They Will Begin with Cross-Examination of the Witness.

• However, Witnesses Are Often Frightened, Intimidated or Uncomfortable with the Proceeding.

• Recommendation: Request a Short Direct Examination in Order to Allow the Witness to Become Comfortable or “Warm to the Seat.”

• Recommendation: Request the Initial Direct Examination at the Time of the Scheduling & Procedural Order.


Expert Witness Examination


Expert WitnessesParty Appointed

• Often Instrumental, Especially for Technical, Scientific, Engineering, and Economic Issues

• Party Must Identify and Produce Reports from the Expert. IBA Rules of Evidence, arts. 5.1, 5.2.

• Additional or Rebuttal Experts - IBA Rules of Evidence, art. 5.3.

• The Tribunal May Order Party Appointed Experts to Meet and Confer, and Outline Areas of Agreement and Disagreement. IBA Rules of Evidence, art. 5.4.


Expert WitnessesTribunal Appointed

• The Tribunal May Appoint an Expert Witness Itself. IBA Rules of Evidence, art. 6.1; UNCITRAL Model Law, art. 26; see generally Swiss R. Arb., art. 27.

• The Expert Will Submit a Report to Tribunal and Parties. IBA Rules of Evidence, art. 6.4.

• The Tribunal Appointed Expert Witness May Request Documents, as well as Inspection of and Access to Physical Things from the Parties. IBA Rules of Evidence, art. 6.3.


Expert WitnessesPanel Examination or “Hot Tubbing”

• The Tribunal May Examine Expert Witnesses Simultaneously or on a Panel Format

• The Tribunal May Ask Each Expert Witness to Answer in Turn the Same Question

• The Tribunal May Ask Each Expert Witness to Comment on the Testimony of the Other Experts, Including Areas of Agreement or Disagreement

• Experts May be Allowed to Question Each Other

• Expert Witness Testimony May Become a Discussion

• Testimony Becomes Expert Driven, Rather Than Attorney Driven


Expert WitnessesPanel Examination or “Hot Tubbing”

• Effect: Former “Hired Gun” Expert Witnesses Often Experience a Convergence of Opinions

• Effect: Often Extremely Probative of the Truth, But Horrifying to Counsel, Who Lose Control of “Their” Experts

• Criticism: Discussion Is Often Led by the Most Assertive or “Litigation-Aware” Experts

• Criticism: Time Constraints May Lead to Fairly Superficial Examination of Differences in Expert Opinion

See generally Frances P. Kao, Into the Hot Tub: A Practical Guide to Alternative Expert Witness Procedures in Int’l Arb., 44 Int'l Law. 1035 (2010); Lisa C. Wood, Experts in The Tub, 21 Antitrust ABA 95 (2007) .


LEWIS & BARNESATTORNEYS AT LAW

Contact Information:

Stacey L. Barnes

Lewis & Barnes

5248 Larkin St., Ste. A

Houston, Texas 77007

USA

Tel: +1 (832) 460-3737

Fax: +1 (713) 456-2042

E-Mail: [email protected]


Goncalo Malheiro Partner PBBR Law Firm, Lisbon.


Challenging the appointment of arbitrators – when it is relevant and necessary rather than a tactical distraction?

Laurence Burger, Counsel of Winston Strawn, LLP, Geneva.


• Challenge of arbitrator must only be done for valid reasons

• Risk: alienate the arbitrator, the tribunal, the opposite

party/counsel

- Loss of credibility

- Animosity of challenged arbitrator

- Strengthens tactical position of opponent


GUIDELINES

• National statutes

• IBA Guidelines on Conflicts of Interest in International

Arbitration


• Article 180 of the Swiss Private International Law Act: 1. An arbitrator can be challenged:

a. When it does not have the qualifications agreed by the parties;b. When a ground for recusation as provided by the arbitration rules adopted by the parties exists;c. When the circumstances allow to doubt validly of its independence.

2. A party can only challenge an arbitrator who was appointed by itself or whom it contributed to appoint for a ground that came to its knowledge after the appointment. The arbitral tribunal and the other party must be informed without delay of the reason of the challenge.

3. In case there is a dispute and if the parties have not set the challenging procedure, the competent judge of the seat of the arbitral tribunal takes a final decision.

National statutes


IBA GUIDELINES ON CONFLICTS OF INTERESTIN INTERNATIONAL ARBITRATION

• General principle:

- Every arbitrator shall be impartial and independent of the parties at the time of accepting an appointment to serve and shall remain so during the entire arbitration proceeding until the final award has been rendered or the proceeding has otherwise finally terminated



• Conflicts of Interest:

(a) An arbitrator shall decline to accept an appointment or, if the arbitration has already been commenced, refuse to continue to act as an arbitrator if she or he has any doubts as to his or her ability to be impartial or independent.

(b) The same principle applies if facts or circumstances exist, or have arisen since the appointment, that, from a reasonable third person’s point of view having knowledge of the relevant facts, give rise to justifiable doubts as to the arbitrator’s impartiality or independence, unless the parties have accepted the arbitrator in accordance with the requirements set out in General Standard (4).



(c) Doubts are justifiable if a reasonable and informed third party would reach the conclusion that there was a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision.

(d) Justifiable doubts necessarily exist as to the arbitrator’s impartiality or independence if there is an identity between a party and the arbitrator, if the arbitrator is a legal representative of a legal entity that is a party in the arbitration, or if the arbitrator has significant financial or personal interest in the matter at stake.



• Practical application of the General Standards

- Lists

• Red

• Orange

• Green


Lists

Red

Waivable Red

Relationship of arbitrator to the

dispute

Arbitrator’s direct or indirect interest in

the dispute

Arbitrator’s relationship with parties or counel

Non-Waivable Red

Identity between party and arbitrator

Arbitrator is manager, director or member of supervisory board

Arbitrator has significant financial interest in one of the

parties/outcome of the case

Arbitrator regularly advises the appointing party/affiliate, and the

arbitrator/firm derives a significant

financial income therefrom.

Orange

Previous services for one of the

parties or other involvement in the

case

Current services for one of the

parties

Relationship betwen an

arbitrator and another arbitrator

or counsel

Relationship between

arbitrator and party and others involved in the

arbitration

Green

Previously expressed

legal opinions

Previous services

against one party

Current services for one of the

parties

Contacts between the arbitrator and one of the parties


CASE LAW• Arbitrator expresses a temporary opinion during the course of the

arbitration

• Dispute between the arbitrators and a party concerning the ratesArbitrator has a direct communication with one of the parties without informing the other

• Relationship between arbitrators/an arbitrator and the counsel of one of the parties in the context of an association

• Arbitrator who has ruled against one of the parties in a previous dispute

•Wife of the arbitrator appointed by a party works as associate in the law firm which represents the party


CASE LAW

• Arbitrator sat on the Board of Directors of a major international bank which had a shareholding in one of the claimants

• Arbitrator is sole administrator or sole shareholder of a company which has a direct/indirect interest in the outcome of the proceedings

• Arbitrator who disclosed regular appointments by the same group of companies

• Arbitrator has, for 15 years, been a director of a company who is a party in the arbitration proceedings, which he left when he retired


Panel Discussion – International Arbitration, Emerging Trends

Arran Dowling Hussey

Session Five - Questions


Close & Thanks

Pat Brady FCIArb

Dermot Durack

Arran Dowling-Hussey FCIArb, B.L


Irish Branch DinnerWestbury Hotel 8pm
