International Arbitration Law Assignment
Q1. You are acting for the Respondent in a case which has gone to a four day arbitral hearing under the Arbitration (Scotland) Act 2010. The parties have agreed that the IBA Rules on the Taking of Evidence in International Arbitration 2010 applies. On the second day of the hearing, you notice that the lawyer for the Claimant is asking questions about an incident which is similar to the one in the written pleadings, but which happened on a different date. What do you do, and what are the possible outcomes?
Q2. Aztec Inc is the Claimant in an arbitration against Inca Inc, the Respondent in an international arbitration. The English & Welsh Arbitration Act 1996 applies. The IBA Rules on the Taking of Evidence in International Arbitration do not apply, but you are aware that they are important internationally. The Claimant has written to the Respondent indicating that it wishes to obtain from the Respondent the following documents:
- A letter written to the Respondent’s Chief Executive by the Respondent’s lawyers offering advice on settlement terms and containing references to various e-mails between the Respondent and suppliers which the Claimant states are relevant to the dispute. The Claimant wishes to recover the e-mails too. The Claimant’s chief executive knows about the letter since he saw a file left open by the Respondent’s lawyer during a settlement meeting – the lawyer had gone to the toilet, leaving his file open at the letter.
- A note of a telephone call between the Respondent’s chief executive and another company in which the chief executive is noted as having admitted liability for one of the sums sought in the arbitration. The Claimant has been told by a disgruntled ex-employee of the Respondent that such a note exists. The ex-employee states that he wants to cause ‘maximum damage to those bastards’ although he is not willing to give evidence. This ex-employee has contacted the Claimant using a false name and via an anonymous e-mail address. He is unable to provide information about the date of the note or who made it; he claims to have seen it. He claims to have been employed by the Respondent as a filing clerk before being sacked for theft from the company, which he strongly denies.
The Respondent does not want to produce any of this documentation, as it is clear that it may be regarded as damaging to the Respondent’s case. The Respondent is also worried that, in arguing over the production of these documents, the arbitrary tribunal may have to see them, and that if it sees them, they may as well be produced, since the cat is out of the bag.
Advise the Respondent
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Q3. You are a sole arbitrator, and you are heading for a full two-day hearing under the Arbitration (Scotland) Act 2010 in two weeks’ time. All documentation is now in (including witness statements), and on looking through it, you see that there is little by way of facts which are in dispute.
- How might you proceed?
Q4. You are representing a party in an international arbitration, you are instructed by Scottish solicitors. The hearing is to be in Paris, which is also the seat, ICC rules. You have a key witness on your list, an expert engineer. He has produced a report which is robust. The solicitor instructing you, however, has concerns about how he will perform as a witness. He has asked you to do a run through of the oral evidence with the witness: ‘Put him through his paces, challenge him, if he is dodgy, we will want to replace him sooner rather than later’ you are told.
- What do you do? Is any assistance available in the IBA Guidelines on Party Representation on International Arbitration 2013? [available online]
Would it make a difference if you were instructed by a US attorney and not a Scottish solicitor?
Q5. You are a sole arbitrator, and the parties have asked that written submissions are produced at the end of a three day hearing. You are minded to agree to do this. How do you frame your Directions?
Q6. You are chair of a panel of three arbitrators. One of your colleagues has experience of earlier arbitrations involving a lawyer for one of the parties; your colleague’s view is that he is rambling, rarely gets to the point and uses up most of the allocated time asking long-winded questions. Your colleague suggests that the Tribunal leads the questioning and then leaves the lawyer some time at the end to ramble on. This will allow you to get to the issues.
The arbitration is seated in Scotland. What do you decide to do and why?
In considering the following questions, please assume that the ICC Arbitration Rules 2017 have been adopted between the parties and that these issues arise at the Case Management Conference. You should also refer to the appropriate Practice Guides and CIArb Guides in the Reference Materials
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Q7. The parties agree that 5 days of oral evidence will, in total, be needed. How might the arbitral tribunal decide to divide up this period?
Q8. Imagine that the Claimant has a strong preference for witness statements, whereas the Respondent has a strong preference for direct oral evidence in chief. How is oral evidence of lay witnesses to be dealt with – by direct oral evidence or by witness statement? What do you need to take into account in deciding which to prefer?
Q9. A UK-based Respondent wants extensive discovery of the Claimant’s internal communications between the general manager and its lead engineer (the dispute being over the failure of a piece of machinery supplied to the Respondent by the Claimant). The Russian based Claimant opposes discovery. It says that each side should make out its own case based upon its own documents. It says that there is no
such thing as discovery in Russian civil proceedings. Should the Arbitral tribunal order discovery, and if so, on what basis?
Q10. The Respondent says that it wants discovery of communications between the Claimant’s company secretary (who is also its in-house lawyer) and the Claimant’s board of directors about communications regarding settlement negotiations between the two parties. The Claimant, from Canada, argues that such communications are subject to legal professional privilege. In China (where the Respondent is based) there is no such concept as legal professional privilege. How should this be dealt with?
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