Conference Powerpoint Presentations

Inaugural Conference of CIArb
International Young Members Group

The Irish Branch Welcomes you to Dublin


Programme For The Day
Time Title Speaker
9.30 to 10.00 Conference Launch Pat Brady & Justice Peter Kelly

10.00 to 10.45 Challenges & Benefits Facing Young Arbitration Doug Jones
Practitioners
10.45 to 11.45 International Best Practise, What Can Arbitral Panel Discussion
Seats Learn From One Another
11.45 to 12.15 Coffee Break

12.15 to 1.15 Evolving Practise Under The New York Klaus Reichert
Convention
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


Conference Launch

Pat Brady FCIArb, Chair CIArb, Irish Branch

Mr. Justice Peter Kelly of the High Court Assigned Irish
Arbitration Judge


Session One

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.


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


Session Two

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


Arbitration in the UAE

Gordon Blanke MCIArb,
Counsel, Habib Al Mulla & Co,
Dubai, 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


Best International Practice
What Arbitral Seats can learn
from one another

Siobhán Kirrane
A&L Goodbody


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 2008
Seminar in April 2007
Collaboration
 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 Seat
Mandy E. Moore, FCIArb
Borden Ladner Gervais LLP
Ottawa, Canada
mmoore@blg.com


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. Moore
Borden Ladner Gervais LLP
(613) 787-3500
mmoore@blg.com


Lewiatan Court of Arbitration
- an example of exchange
of ideas among arbitral institutions.

Dr Beata Gessel-Kalinowska vel Kalisz
Dublin, 11 November 2011


• The public interest is best served by the free exchange of
ideas
John 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
• 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
• 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
bgessel@pkpplewiatan.pl
www.arbitrationcourt.org.pl


Session Two - Questions

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

Dermot Durack, Session Moderator


Coffee Break- 12.15-12.45


Session Three
Klaus Reichert, Senior Counsel, Law Library, Dublin &
Brickcourt Chambers, London.

Session Moderator:
Gabriel Daly Partner, Beauchamp's Solicitors, Dublin.

Evolving Practice under the New York Convention
Klaus Reichert SC Inaugural Conference of CIArb

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


Session Four
Panel Discussion – Investment Arbitration: Fit for
purpose?

Luis Guerrero
Brian Hutchinson
Thomas Sebastian
John Gaffney
Session Moderator: Colm O’ Hoisin Senior Counsel


Investment Arbitration in South
America

Rules and Trends
Luis 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:
Public Utilities
and
Particular Managment Alternative
Law 11.079 Dispute
Resolution
Bidding
Law 8.987
- Arbitration from Law 9.307/96: – binding process
– arbitration award has the same
effects of a judicial award


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!

lfg@dinamarco.com.br


Brian Hutchinson
Senior Lecturer, University College Dublin


Thomas Sebastian
Senior 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?


Session Four - Questions

Panel Discussion – International Arbitration, Fit for
purpose:

Colm O’ Hoisin


Session Five

Panel Discussion – International Arbitration,
Emerging Trends
Conor Owens
Stacey Barnes
Goncalo Malheiro
Laurence Burger
Session Moderator: Arran Dowling-Hussey FCIArb, B.L


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 WITH
Reasonableness of costs incurred
Detailed 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 resolution
Usually 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 Order
Rules and Commentary available online at: www.ibanet.org


Witness Statements:
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.


Witness Statements:
• 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


• 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.


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 Witnesses
Party 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 Witnesses
Tribunal 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 Witnesses
Panel 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 Witnesses
Panel 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) .


L EWIS & B ARNES
ATTORNEYS 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: staceylbarnes@earthlink.net


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


National statutes
• 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.


IBA GUIDELINES ON CONFLICTS OF INTEREST
IN 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 Green
Orange

Non-Waivable
Waivable Red Previous services Relationship Relationship
Red Current between
for one of the betwen an
parties or other services for arbitrator and
arbitrator and
involvement in the one of the party and others
another arbitrator
Identity between case parties involved in the
or counsel
Relationship of party and arbitrator arbitration
arbitrator to the
dispute
Arbitrator is manager, director or
member of supervisory board
Previously Previous
Arbitrator’s direct or Current Contacts between
expressed services services for
indirect interest in Arbitrator has significant financial legal opinions against one
the arbitrator and
one of the one of the parties
the dispute interest in one of the party parties
parties/outcome of the case

Arbitrator regularly advises the
Arbitrator’s appointing party/affiliate, and the
relationship with arbitrator/firm derives a significant
parties or counel financial income therefrom.


CASE LAW
• Arbitrator expresses a temporary opinion during the course of the
arbitration
•Dispute between the arbitrators and a party concerning the rates
Arbitrator 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


Session Five - Questions

Panel Discussion – International Arbitration,
Emerging Trends

Arran Dowling Hussey


Close & Thanks

Pat Brady FCIArb
Dermot Durack
Arran Dowling-Hussey FCIArb, B.L


Irish Branch Dinner
Westbury Hotel 8pm

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