An arbitrator's pet peeves
As budget cuts take effect, a slow-down in construction projects has been evident in Qatar. Another significant trend emerging is that it is becoming even more difficult to secure payment under construction contracts. The resulting pressure on companies' cash flow is forcing parties to initiate formal dispute resolution proceedings in order to secure payment. For organisations that are contemplating arbitration, the following guidance from seasoned international arbitrator Peter Shaw will assist in avoiding potential pitfalls. Peter has undertaken close to 40 engagements as arbitrator, adjudicator and mediator. Here he shares eight key insights into the preferred course of an arbitration by parties.
1. Terms of reference: No time wasters please
Far too often a heated debate arises at the beginning of an arbitration as to the composition of the terms of reference that will govern the case. The section that sets out the issues in the case, which is drafted by the parties, can run to several pages, which is entirely unnecessary. Whilst careful consideration of the issues involved in the case for each party is a must in order to avoid jurisdictional challenges later on, parties can and should be concise in their summary of issues, and it is recommended that such summary is limited to a handful of paragraphs at most.
A tribunal does not want to spend an unnecessary amount of time refereeing such points between the parties. It is therefore prudent to include a provision in the terms of reference which makes it clear that the parties are not strictly bound by their summaries but can expand on them in their pleadings or memorials providing they do not raise new issues.
2. Be pragmatic
Parties should only revert to the tribunal for procedural directions when they cannot sensibly agree matters between themselves.
3. Slow down
It is increasingly common for a claimant to commence a case when his claims are not fully developed and/or are cast far and wide because he isn't yet sure which claims have teeth and which do not. The independent experts are then expected to whittle down matters in dispute during the case. As a result, parties incur additional time and cost which would have been avoided had the claimant taken advice early on and narrowed down the issues in dispute. Imprecise claims which are expected to be refined by experts can lead to an attack that the focus of the claims has changed, which may at worst give rise to a jurisdictional challenge and also an application for an adverse costs award.
4. Keep to deadlines
Parties know the timetable for the case and are afforded some say in the dates that comprise that timetable. It can therefore be irritating to a tribunal to have one or both parties ask almost on a habitual basis for last-minute extensions of time which could and should have been sought sooner or, worse, are simply being sought as a delaying tactic in proceedings.
5. Prepare, prepare, prepare
Parties should properly index and cross-reference the documents upon which they seek to rely in their pleadings and be proportionate with the volume of documents upon which they seek to rely. This greatly assists the tribunal in getting to grips with the key issues in the case, streamlining proceedings, saving time and cost for the parties, and is greatly preferred by the tribunal to an all too frequently adopted 'everything but the kitchen sink' approach. It is often the case that in the evidentiary hearing only 20 to 25 per cent of the documents included in the hearing bundle are referred to. If the advocates can prepare their cross-examination of the witnesses in good time before the hearing, it is possible to prepare a smaller 'core bundle'.
6. Don't be emotional
Parties should avoid the use of emotive and pejorative language in correspondence and pleadings. Such does not assist their case and does not endear them to the members of the tribunal.
7. Stating the obvious
An individual's witness statement must be just that – his witness statement, based on facts that he can attest to, to the best of his recollection at the present time.
Most witnesses are unfamiliar with the process of arbitration, and it is incumbent on their lawyers to ensure that they understand that their role is to assist the members of the tribunal in their understanding of the facts of the case. Nothing more, nothing less.
A tribunal cannot give full weight to witness evidence that doesn't appear credible to it, and can spend an unnecessary amount of time trying to determine just how much weight (if any at all) it can fairly and reasonably give to evidence that is clearly not within that individual's recollection.
Factual witness evidence should be directed at supporting the claims of the parties. All too often witness evidence does not address the pleaded claims, which means that the tribunal will give such evidence little weight.
8. Expert opinion
An expert's report must be limited to his expert opinion based on all of the relevant facts before him in the case. This sounds simple, but experts' reports have been known to attempt to endorse factual evidence and even present such evidence.
Lawyers should be careful to ensure that their instructed experts understand that their duty is to report to the tribunal on their expert opinion and that they are not hired by the parties to advocate their case on their behalf. Equally, clients must be made to understand and accept the proper role of the expert(s) that they engage in arbitration.
A tribunal prefers to be able to give full weight to an expert's report, rather than to find itself in a position where it has to spend considerable time determining the credibility of an expert's report and the degree to which it can be relied upon.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
