As the late Kenny Rogers sang in poker, “You have to know when to hold them, when to fold them.” The same analysis also applies to the preparation of an arbitration hearing and the determination of which claims/defenses will actually be presented at the hearing. Without repeating the title of this blog series, a serious mistake I see as both act as arbitrators or advisors is that of lawyers (and clients) who feel that not only should they present all possible claims/defenses to the arbitrator, but also refuse to concede positions in the middle of a hearing when it is clear that the facts do not go in their direction. Arbitration is not a hearing before a jury or judge who may not know anything about the subject matter of the dispute. Your arbitrator is an industry expert, usually an experienced lawyer in the field in question. She knows what the right and wrong positions are and when one side is trying to pull the wool over her eyes. Especially in arbitration proceedings where there are multiple claims (e.g. B a construction dispute), the credibility of a party in ALL positions is crucial. Presenting four major claims/defenses, but also one or two very questionable, or stubbornly clinging to positions that look like losers, is a serious mistake. Your opponent will do everything in his power to oppose the four main claims/defenses and use the dubious claims/defenses to cast doubt on the valid claims/defenses. More importantly, the referee is skeptical about these bad claims/defenses (he can`t say it) and wonders why you always take a position that seems like a certain loser.
Granting certain claims/defenses during a hearing, no matter how hard the fight is, can increase your credibility with the arbitrator. Such a narrowing of positions and concessions at the hearing can also help reduce exposure, especially if there is a clause on the lawyers` fees of the winning parties. This may require some persuasion for a client who is afraid to make ALL the concessions, especially in a highly competitive emotional arbitration. But part of your job as a consultant is to give the best possible advice and describe the pros and cons, and the client can then decide if they want to go “do it all” in all the positions listed. The main reason you want to be represented by an arbitration lawyer is that it is a legal process that affects your legal rights. In addition, binding arbitration does not give you a second chance or the opportunity to appeal if you do not like the result. The arbitrator`s decision is final. These organizations offer a set of rules and procedures for conducting arbitration, and some contain different rules depending on the nature of the dispute. Two parties to the dispute may mutually opt for arbitration as an alternative forum for dispute resolution, but many contracts now include binding arbitration clauses that force the dispute to arbitration rather than litigation.
Both parties shall be deemed to have previously agreed to the arbitration and waived their right to be heard. Arbitration takes place continuously in a variety of situations, disputes between individuals (for example. B in the event of a disputed divorce) to negotiations between countries (e.g. B, contractual and border disputes). Many contracts contain arbitration clauses because arbitration is often more efficient and cost-effective than litigation. For this reason, arbitration is particularly common in the resolution of contractual disputes. For example, arbitration is often used to resolve disputes regarding brokerage commissions, insurance coverage, brokerage and brokerage contracts, labor negotiations, software service contracts, shipping contracts, and other contracts for goods and services. You can hire your lawyer to protect yourself throughout the arbitration or call on your lawyer for defined tasks. Some cases may also be settled amicably after the opening of the arbitration. [4] Arbitration lawyers support these friendly negotiations, prepare non-disclosure agreements if necessary, and draft and negotiate settlement agreements. They can also assist in more formal mediation if the parties intend to find a solution to their dispute and agree to the assistance of a third party for this purpose. Our experienced lawyers can represent you in arbitration proceedings in the hope of avoiding time, cost and publicity of disputes.
What about advance disclosure by third parties before the hearing? The short answer is that, unlike the “court, there is no “right” to such a discovery. This is an important factor in accepting arbitration. If there is a dispute arising out of the contract and your customer will be the one who will need a discovery by a third party to apply, that discovery cannot be made. This article is not long enough to go through all the case law (federal courts differ on the applicability of subpoenas from third-party arbitrators before the hearing) and articles (Google only) on the subject. It is also important to know that, unlike judges, arbitrators do not have the power to apply a subpoena from a third party before the hearing. The recourse for this party is to “go to court” to try to enforce the subpoena. Best advice: Ask the adjudicator to issue subpoenas from third parties well in advance, well in advance of the hearing date. Since these third parties may simply ignore the subpoena, you may receive a continuation of a hearing due to your own problems with the discovery by a third party.
Key learning points: (a) knowing what your arbitration clause and rules allow for pre-hearing disclosure; (b) Have a discovery plan in place prior to the first planning conference; (c) try, as far as possible, to reach an agreement with the lawyer; and (d) use the arbitrator to administer the process for the benefit of your client. If you don`t do any of this, your chances of success at an audience will be seriously affected. We regularly represent private companies, investors, state-owned enterprises and states before arbitration tribunals around the world, helping to resolve disputes that span borders, corporate structures, jurisdictions, cultures, political systems and contracts. We have extensive experience in representing clients in international commercial arbitration, investment treaty arbitration, multi-jurisdictional litigation and international law matters. It is in your best interest to hire an experienced arbitration lawyer to represent you at an arbitration hearing. You do not have to have a lawyer at the hearing. A lawyer at the hearing is an advantage. The decision to hire a lawyer includes the following: In international arbitration, it is customary to use the services of experts to speak on technical, quantum and other issues, as well as to use witnesses[6] to substantiate the facts of a case. Specifically, in other words, in an arbitration agreement, the parties agree not to sue. In addition, they agree that the arbitrator`s decision will be final and waive their right to appeal the decision if they do not like it.
Flexibility. The rules of procedure in arbitration proceedings are quite flexible – evidentiary issues and witness lists can be approved in a short phone call. However, court cases cannot be adjusted, which means that their resolution takes much longer. In addition, arbitration can be planned around the obligations of the parties, while the courts offer very little flexibility in terms of planning. .