The ICC’s Commission on Arbitration and ADR launched its Guide for In-House Counsel and Other Party Representatives on Effective Management of Arbitration in June 2014. The guide is designed “to provide in-house counsel and other party representatives, such as managers and government officials, with a practical toolkit for making decisions on how to conduct an arbitration in a time- and cost-effective manner, having regard to the complexity and value of the dispute.”
Following short chapters on settlement considerations and case management conferences, the main part of the “Guidelines” consists of eleven “Topic Sheets” that follow the sequence of the arbitration process:
- Request for Arbitration
- Answer and Counterclaims
- Multiparty Arbitration
- Early Determination of Issues
- Rounds of Written Submissions
- Document Production
- Need for Fact Witnesses
- Fact Witness Statements
- Expert Witnesses (pre-hearing issues)
- Hearing on the Merits (including witness issues)
- Post-Hearing Briefs
For each of the topics, the “Guidelines” set out the relevant provisions in the ICC Rules, and the options that the parties have in designing the process. They then discuss the pros and cons and provide a cost-benefit analysis.
On document production for example, always a topic where civil law parties have strong feelings, the “Guidelines” set out the spectrum from the Germanic “no production” to the Anglo-Saxon “full production” model, including intermediate solutions. The “Guidelines” encourage the parties to “explore whether they can effectively meet their burden of proof with the documents that are already in their possession and whether the other side is likely to have documents that are genuinely useful for the first party to make its case.” This sounds perfectly reasonable from a civil law perspective, but perhaps less so to a common law party, or to a common law arbitration counsel, for that matter. When discussing document production at a case management conference, it may be helpful to refer to the “Guidelines” and point to the ICC’s suggestion in the hope that it is less easily rejected than a party proposal along the same lines would be.
Over at the Kluwer Arbitration Blog, Mirèze Philippe and Michael McIlwrath cover the launch event for the “Guidelines” that was held in Paris. Michael McIlwrath’s post reports John Beechy, the President of the ICC Court of Arbitration, calling upon the parties to accept their share of responsibility to make arbitration more efficient. This theme is echoed in introduction to the “Guidelines”. The ICC reports its findings as to the costs of arbitration:
- 82% of the costs of an arbitration were party costs, including lawyers’ fees and expenses, expenses related to witness and expert evidence, and other costs incurred by the parties for the arbitration;
- 16% of the costs covered arbitrators’ fees and expenses;
- 2% of the costs covered ICC administrative expenses
So there seems indeed to be plenty of scope for savings that the parties, more or less, control.
The ultimate test for the “Guidelines” in my capacity as arbitration counsel is the following: Would I send a copy of the guide to an in-house lawyer that I am working with and suggest that she reads it? At first, I was somewhat hesitant, and the length of the document, at more than 60 pages, was one aspect that let me hesitate. But having looked at the “Guidelines” in more detail, I found it to be a well-organized document that breaks the issues down into useful bits and pieces. So today, I did send it out to a client and suggested that we use it as an agenda for our initial discussion of the new arbitration we are jointly embarking on.