FINOLA O’FARRELL QC There must be a valid Arbitration Agreement The parties to the proceedings must have power to enforce their rights under the Arbitration Agreement Hurley Palmer Flatt Ltd v Barclays Bank plc [2014] EWHC 3042 There must be a valid appointment by the parties or nominating body Eurocom Ltd v Siemens plc [2014] EWHC 3710 2 Threshold is real possibility of unconscious bias Lawal v Northern Spirit [2003] UKHL 35 The test for apparent bias is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased. ASM Shipping Limited v TTMI Limited [2006] Lloyd’s LR Vol. 1 375 A v. B [2011] EWHC 2345 (Comm) Porter v. Magill [2002] 2 AC 357 3 Agree the terms of reference Establish the Seat of the Arbitration Agree the applicable procedural rules Parties to identify the key issues to be determined 4 The Tribunal shall – (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. [Section 33 Arbitration Act 1996] 5 Disclosure – agree scope and volume of disclosure before order is made Experts’ meetings and joint statements • • • • define the issues early meetings can narrow issues seek interim reports from the experts on progress joint statements can limit the scope of reports Additional evidence: proportionality and fairness Extensions of time: flexibility within firm timetable 6 Written opening and closing submissions – consider limiting length Timetable for hearing – consider chess clock Electronic bundles Oath / Affirmation for evidence Tribunal interventions Transcript 7 Expert evidence should be the independent product of the expert. An expert witness should provide an objective, unbiased opinion in relation to matters within his expertise. An expert witness should state the facts or assumptions upon which his opinion is based and not omit to consider material facts which could detract from his concluded opinion. An expert witness should only opine on matters within his expertise. If an expert's opinion is provisional or otherwise qualified, that should be stated in the report. If an expert witness changes his view on a material matter, such change should be communicated to the Tribunal and other party. Where expert evidence refers to supporting documents, these must be produced at the same time as the exchange of reports. Expert Reports – consider limiting length or requiring summaries Supplemental reports during the hearing Evidence of experts of like discipline back to back or simultaneous Hot Tubbing – pros and cons 9 Consider the relevant expertise of the expert Consider whether all material facts and evidence have been taken into account Experts make mistakes but not all mistakes affect the expert’s credibility or opinion Beware the halo effect Ask for an explanation of anything that is unclear 10 Summarise the key issues to be determined It is not always necessary to decide every disputed fact or submission Identify the relevant evidence on each key issue Summarise the points made by each party on each of the key issues Carry out a balancing exercise in respect of the evidence and submissions to arrive at a conclusion on each key issue Determine each element of the relief sought by the parties Partial Award if interest and/or costs outstanding 11 Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant a) Failure by the tribunal to comply with section 33 b) The tribunal exceeding its powers c) Failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties d) Failure by the tribunal to deal with all the issues that were put to it e) Any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers f) Uncertainty or ambiguity as to the effect of the award g) Fraud /contrary to public policy h) Failure to comply with the requirements as to the form of the award i) Admitted irregularity in the conduct of the proceedings or the award 12 The test is: Whether the matter complained of was an issue in the case (or merely an argument) If so, whether it was put to the tribunal Whether the tribunal failed to deal with it Petrochemical Industries (KSC) v Dow Chemical Co [2012] 2 Ll.Rep 691 Transition Feeds LLP v Itochu Europe plc [2013] EWHC 3629 (Comm) SS Defence v Turner Estate Solutions Ltd [2014] EWHC 244 13 FINOLA O’FARRELL QC Rules make us behave honestly and respectfully Many advocates in arbitration are subject to the codes of conduct and regulation imposed by professional bodies But different professionals in different jurisdictions have different expectations and understandings The absence of rules of conduct in arbitration can breed procedural unfairness Each party shall ensure that all its legal representatives appearing by name before the Arbitral Tribunal have agreed to comply with the general guidelines contained in the Annex to the LCIA Rules, as a condition of such representation. In permitting any legal representative so to appear, a party shall thereby represent that the legal representative has agreed to such compliance. Article 18.5 LCIA Rules 2014 A legal representative should not engage in activities intended unfairly to obstruct the arbitration or to jeopardise the finality of any award, including repeated challenges to an arbitrator’s appointment or to the jurisdiction or authority of the Arbitral Tribunal known to be unfounded by that legal representative. Paragraph 2, Annex to LCIA Rules 2014 17 A legal representative should not knowingly make any false statement to the Arbitral Tribunal or the LCIA Court. Paragraph 3, Annex to LCIA Rules 2014 18 A legal representative should not knowingly procure or assist in the preparation of or rely upon any false evidence presented to the Arbitral Tribunal or the LCIA Court Paragraph 4, Annex to LCIA Rules 2014 A legal representative should not knowingly conceal or assist in the concealment of any document (or any part thereof) which is ordered to be produced by the Arbitral Tribunal Paragraph 5, Annex to LCIA Rules 2014 19 During the arbitration proceedings, a legal representative should not deliberately initiate or attempt to initiate with any member of the Arbitral Tribunal or with any member of the LCIA Court making any determination or decision in regard to the arbitration (but not including the Registrar) any unilateral contact relating to the arbitration or the parties’ dispute, which has not been disclosed in writing prior to or shortly after the time of such contact to all other parties, all members of the Arbitral Tribunal (if comprised of more than one arbitrator) and the Registrar in accordance with Article 13.4 Paragraph 5, Annex to LCIA Rules 2014 20 In accordance with Articles 18.5 and 18.6, the Arbitral Tribunal may decide whether a legal representative has violated these general guidelines and, if so, how to exercise its discretion to impose any or all of the sanctions listed in Article 18.6. Paragraph 7, Annex to LCIA Rules 2014 The legal representative must be offered an opportunity to answer the complaint before a violation is found Article 18.6 LCIA Rules 2014 21 Written reprimand Written caution as to future conduct in the Arbitration Any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal under Articles 14.4(i) and (ii). Article 18.6 LCIA Rules 2014 22 IBA Guidelines on Party Representation in International Arbitration 2013 The Guidelines shall apply where at to the extent that the Parties have so agreed, or the Arbitral Tribunal, after consultation with the Parties, wishes to rely upon them after having determined that it has the authority to rule on matters of Party representation to ensure the integrity and fairness of the arbitral proceedings. Unless agreed otherwise by the Parties, and subject to the exceptions below, a Party Representative should not engage in any Ex Parte Communications with an Arbitrator concerning the arbitration. [Guidelines 7-8] Exceptions: (a) Communications with prospective arbitrator to determine availability and suitability (b) Communications with prospective arbitrator to discuss selection of tribunal chair (c) Communications with prospective chair to determine availability and suitability A Party Representative should not make any knowingly false submission of fact to the Arbitral Tribunal. [Guidelines 9-10] A Party Representative should not submit Witness or Expert evidence that he or she knows to be false. [Guideline 11] A Party Representative should inform the client of the need to preserve, so far as reasonably possible, Documents, including electronic Documents that would otherwise be deleted in accordance with a Document retention policy or in the ordinary course of business, which are potentially relevant to the arbitration. [Guideline 12] A Party Representative should not suppress or conceal, or advise a Party to suppress or conceal, Documents that have been requested by another Party or that the Party whom he or she represents has undertaken, or been ordered, to produce. [Guideline 16] A Party Representative may assist Witnesses in the preparation of Witness Statements and Experts in the preparation of Expert Reports. [Guideline 20] A Party Representative should seek to ensure that a Witness Statement reflects the Witness’s own account of relevant facts, events and circumstances. [Guideline 21] A Party Representative should seek to ensure that an Expert Report reflects the Expert’s own analysis and opinion. [Guideline 22] If the Arbitral Tribunal, after giving the Parties notice and a reasonable opportunity to be heard, finds that a Party Representative has committed Misconduct, the Arbitral Tribunal, as appropriate may: (a) Admonish the Party Representative; (b) Draw appropriate inferences in assessing the evidence relied upon, or the legal arguments advanced by, the Party Representative; (c) Consider the Party Representative’s Misconduct in apportioning the costs of the arbitration; (d) Take any other appropriate measure in order to preserve the fairness and integrity of the proceedings. [Guideline 26] Arbitration is a consensual process and cooperation between the parties, their legal representative and the tribunal is necessary for a fair and efficient reference Rules matter Consider adoption of Arbitration Rules that incorporate ethical rules/guidelines Consider requiring the parties and their legal representatives to sign up to agreed rules/guidelines. FINOLA O’FARRELL QC