How to make an arbitration work

The core skills required for effective advocacy in arbitration are the same as for any other determinative adversarial process.

Anna Kirk Hi Res

Anna Kirk

But there are some key differences between arbitration, and advocacy in litigation and proceedings. Advocates who appreciate these differences are likely to achieve better outcomes for their clients.

This article touches upon some of the key issues when representing clients in an arbitration. These will impact on the advocacy style adopted.

Party autonomy
Party autonomy is a key tenet of arbitration and affects the role of the advocate.

The arbitration belongs to the parties and the tribunal will be guided by them insofar as they can agree on issues, procedures and the overall mandate of the arbitrator.

The parties are in control and advocates who can make the most of this opportunity will ultimately achieve a more satisfactory experience for their client.

The way lawyers approach each other in the early stages of an arbitration will have a significant impact on the course of the arbitration.

An argumentative stance from the outset may ultimately be detrimental. Lawyers who can converse constructively with their counterparts and find agreement so far as possible allow the parties to retain more control over the arbitration process as a whole.

This is particularly so where a sole arbitrator is to be appointed.

Coming to an agreement on this appointment rather than defaulting to an appointing authorityis in the interests of both parties. While the natural inclination might be to veto any namessuggested by the other side, the outcome might be counterproductive.

A face-to-face (or telephone) discussion between counsel is likely to yield up agreement more readily than an email battle. If the parties have selected their arbitrator rather than had their decisionmaker thrust upon them, they are more invested in the process and are more likely to be satisfied with the overall result.

Agree procedure
Linked to party autonomy is the ability of the parties to agree on the procedure.

Prior to the first case management conference, the parties have the opportunity to converse and determine an agreed procedure so far as possible.

Where both parties have agreed on the procedure, it would be highly unusual for a tribunal to vary it, although the tribunal may have some suggestions for the parties to consider.

Of course, if the parties cannot agree, or would prefer guidance from the tribunal about the procedure, they are free to defer to the tribunal on this issue.

Similarly, if a party requires an extension to file a document, unless there is particular urgency the first step should be to contact the other side’s counsel and ask if they will agree to the extension.

If agreement is forthcoming, the parties can then inform the tribunal that they have agreed the extension and seek its approval, which will seldom be denied.

If the parties cannot agree, they can approach the tribunal for a decision, with both parties’ positions clearly stated. The process is efficient and tribunals generally prefer it.

Written advocacy
After the initial procedure is agreed, the first step is for the claimant to file its main submission.

In arbitration, this would usually be a complete rendering of the claimant’s case at that point in time, including the facts, evidence and law relied upon in support of that party’s submissions.

All documents and witness or expert evidence should be filed at the same time, unless otherwise agreed.

Arbitral written advocacy tends to have a more “narrative” style than court pleadings, where each party takes the opportunity to present its “story” to the tribunal, supported by documents, witness evidence and any other materials a party wishes to adduce.

All aspects of a party’s case should be fully canvassed in these written briefs as oral advocacy (as discussed below) will be shorter and more pointed than typically is the case in litigation.

Written submissions are therefore very important and the party presenting the most intelligent, coherent and convincing narrative will have a considerable advantage.

It is important that, when acting for a respondent, counsel take the opportunity to advance the respondent’s version of events and the applicable law, not just admit or deny the claimant’s version.

Usually each side will have the opportunity to file its main submissions and a second submission in rebuttal or reply. Skeletons before a hearing would be unusual in most domestic matters.

Documents and interlocutories
Extensive document production is costly, time- consuming and rarely productive.

Arbitration has traditionally shunned court-style discovery unless the parties insist on it.

The parties can agree that no document production procedure will occur at all and for smaller disputes there might be good reason to do so.

If document production is to occur, the parties can tailor this to suit the requirements of the dispute.

A limited form of document production targeting specific documents or narrow categories of documents is often adopted.

Parties are required to show why a requested document is relevant and material to the dispute. If this process is adopted, the document production phase should take no more than a few weeks.

A key point setting arbitration apart from litigation during the interlocutory phase is that all interlocutory decisions will be made by a decisionmaker who will be familiar with the dispute throughout, and who is available.

There is no ability to challenge or appeal interlocutory decisions in an arbitration. This makes them potentially cheaper, easier and faster than in litigation.

In arbitration, an interlocutory issue would usually take the following course:

  • an initial email to the arbitrator setting out the issue;
  • a telephone conference within a day or so to set the procedure;
  • further submissions addressing the issue in full;
  • a short hearing, if needed; and
  • decision issued by the arbitrator.

All of this is usually completed reasonably promptly and without any filling fees.

The hearing
A typical arbitration hearing will be significantly shorter than a court hearing.

Larger disputes normally require a hearing of around one to two weeks, depending on the number of witnesses.

Smaller disputes would usually require a hearing of a few days at most. This includes time for oral openings and closings submissions, if required. Oral closing submissions can take place on a later date if preferred.

As the case will have been fully briefed in the written documents which the arbitrator should have read before the hearing, oral advocacy is an opportunity to highlight key points and to ensure they hit home rather than to simply re-tell the narrative.

Witness evidence in an arbitration hearing primarily comprises cross-examination, with evidence-in-chief usually far more limited than in litigation (there is no need to read out witness statements during the hearing).

Expert witnesses sometimes provide a short presentation of their position at the start of their evidence.

They may also be asked to provide evidence together – known as a “hot tub” or “joint conference” where the tribunal and counsel ask questions of both experts at the same time.

Before the hearing, the experts may have been asked to produce a joint report clarifying areas of difference and agreement between them.

ADLS is running an interactive seminar to demonstrate these and other issues arising in arbitration which may be less familiar to those who routinely practise in the courts.

Dr Anna Kirk is a barrister & arbitrator at Bankside Chambers

For those interested in learning more, register for ADLS’ interactive seminar on 17 October 2019 where some of the points above will be played out in a real-life scenario. Presented by Anna Kirk, Royden Hindle, Jeremy Johnson and Polly Pope. Visit adls.org.nz/cpd for details.

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