It is often said that resolving disputes through arbitration can permit flexibility, innovation and cost/time saving. This is more likely when a client and legal counsel give thought and effort to develop early and effective case management. Efficiency in time and cost is best achieved when both a client and their legal advisors have a clear strategy, and work towards it together.
The 2012 International Chamber of Commerce (the “2012 ICC”) rules were held out as a gold standard in assisting parties to more effectively manage their arbitral proceedings. This article looks at options that parties and their legal advisors should consider at the preliminary stages, and revisit during the arbitration process.
Although the commentary to the 2012 ICC rules encourages parties and counsel to consider these issues, the same broadly apply to any form of arbitration, whether institutional or ad hoc:
- Clearly identify your goals at the outset
- Transparency during the case evaluation
- Disclose all relevant facts
- Disputes are akin to a game of chess
- Keep all relevant records
- Be patient and stay composed
- Unfortunately, lawyers do cost money
Your intended goals may vary based on the subject matter and/or nature of the dispute. For example, in a commercial dispute arising from a breach of contract, your desired goals may include a number of items, and not just recovery of money.
In any event, your all-encompassing desired outcome/goals should be clearly identified at the outset. This will help your lawyer strategically frame the issues and scope of the dispute, as well as the terms of any potential settlement talks.
It is important for the lawyers to be fully transparent in assessing the strength or weakness of your case. Perhaps inadvertently, overzealous clients and/or lawyers have mistakenly pursued claims and/or utilized tactical mechanisms (such as injunctive relief) based on hopes, which, objectively speaking, were doomed based squarely on the merits. In all cases, an analysis of risks/benefits and costs is important.
Do not withhold key information from your lawyer – even if it appears to be self-implicating.
One of the worst possible scenarios that frequently arises is when incriminating evidence is first discovered only when the opposing party discloses it during the course of the proceedings. This often places lawyers in a very precarious situation, and may permanently ruin any opportunity for the lawyer to mitigate such damaging evidence.
Sometimes it’s best not to disclose, all at once, every line of argument. Disputes are akin to a game of chess. And sometimes it’s best to hear the other side’s argument before you state your own position.
The ultimate goal is to convince the adjudicator that you are right and the opposing side is wrong. Accordingly, a lawyer may recommend that only the strongest and/or less complex arguments should be presented at the outset of the dispute in order to attain a ‘mental’ victory with the adjudicator, prior to introducing perhaps any weaker or more complex arguments. A party also may inadvertently dilute their stronger points by distracting the arbitrator by way of any ancillary issues, and by giving the opposing side more ‘talking points’ on any fringe issues.
It is especially important to keep all records when you are engaged in a commercial dispute. Oftentimes, a party may successfully prove that it is legally entitled to a certain claim, but cannot prove the quantum amount of relief which they are seeking.
Accordingly, it is important that all records are maintained – both liability and quantum-related.
Disputes may be characterised as a ‘long haul’ game with many likely ‘momentum’ swings throughout the course of the proceedings.
It may be that the opposing side has presented a very strong counter-argument, or has successfully re-directed the arbitrator’s attention to irrelevant points of fact and/or law.
Whatever the situation, it is important to know that the direction of any dispute often changes and therefore the parties should never overreact to any singular development, for better or worse.
It is important for clients and lawyers to be fully transparent and forthcoming regarding legal fees. Generally, legal fees will vary based on the complexity and number of issues in dispute. In the final analysis, it is in our interest for you to have obtained value for your money.