Author: G.C. Aguilar

Mind mapping is a good technique when you want to have a snapshot of the controversies you are in front of, to know the parties and the relevant facts of the case, it is your compass in the great mass of information that you will have to navigate.

A mind map will help as well in avoiding getting lost within the woods!

We prepared a mind map for the upcoming UP-ICC Moot 2020, in this case you will see the information in Spanish, since the case and everything is in Spanish, we will try our best to have an example in English.

I hope is for the benefit of the community and specially the arbitrators for the next oral virtual rounds!

Let’s say that you were appointed as an arbitrator, having a natural excitement is really great, time for a quick celebration is ok, however, there is a rush of excitement and also you must act promptly and diligently, if the parties are all set, and also the Arbitral Tribunal is determined, you need to have a preparatory conference for the Arbitration which will lead to the Procedural Order number one, also known as the “PO1”.

As I said, having previous experience to arbitrations is not that important, what is fundamental is that you are a good lawyer, and, you already know what you need to be a good lawyer.

Having previous experience in arbitrations, could be an optimal situation for acting as an arbitrator, however, if you are appointed and you don’t have previous experience, you can find that there are out there tons of tools, guidelines and courses, so you can equip yourself with ‘arbitration tools’.

Keep in mind to always remain, neutral, impartial and give the parties the possibility to present their case. The guidelines that you can find as a first stop will be the UNCITRAL Notes on Organizing Arbitral Proceedings, they can help you in setting the preparatory conference to your arbitration in which you can deal with the following matters:

1. Determine the arbitration rules
2. Language of the proceedings
3. Place of the arbitration or the arbitral seat
4. Administrative services for the arbitral tribunal
5. Deposits in respect of the costs of the proceedings
6. Confidentiality of the arbitration as well as a possible confidential agreement between the parties, and between the arbitral tribunal and the parties
7. How to send communications between parties and the arbitral tribunal
8. The means for sending documents
9. Exchange of written submissions
10. Procedural aspects on how to provide with written submissions and evidence
11. Defining the points at issue, what needs to be settled first and then second, etc. Possible bifurcation of the proceedings
12. If there are possible settlement negotiations and the effect on the schedule of the proceedings
13. Documentary evidence
14. Other evidence
15. Witnesses
16. Expert witness
17. Hearings
18. Multi-party arbitration
19. Requirements on filing or delivering the award
20. Schedule of the arbitration

After reviewing all the matters with your co-arbitrators and the parties to the dispute, being agreed and signed by all the parties involved. You can conclude that such “PO1” is the blueprint for your arbitration.

After the agreed terms under the PO1, then the race has started, with that if appointed as an arbitrator, your responsibility will be to issue an enforceable award on time, thus, your award writing tasks starts from such a moment.

The Moot season for the Vis family has started.

With that it starts a tradition.

The tradition to read, to print the problem, to highlight, to put ideas into possible drafts, to practice your advocacy skills, to be once and for all the lawyer you want to become.

Indulge yourself into the vis problem, have fun and enjoy!

Let’s say that one day, some client of yours arrives with a possible arbitration claim, you already did your request of arbitration, however, there was the point in time that you have to appoint an arbitrator, and the question that arrives then is, where do I find an arbitrator?

One possibility is that in your city there is an actual law bar or a lawyer’s bar association, request them with a recommendation of a practitioner involved in arbitration, if not, also ask the dean of the faculty of the university or universities in your city, so they can give you a recommendation for a possible arbitrator, the chambers of commerce can give you a hint of possible arbitrators, and of course the institutions for arbitration they will give you proposals for handling your dispute.

 Ok, then you find your possible candidates, or let’s make it more interesting, you were contacted in order to be the arbitrator, exciting news!, but there is one little problem, you don’t have previous experience as an arbitrator in actual real cases, you were only arbitrator in Moot court and tribunals, now this is the real deal.

If you are contacted in order to be appointed as an arbitrator, then there is the issue of whether or not have an interview with the possible “clients”, since what you want to remain is actual neutral and impartial, and not to commit any type of actions that will diminish not only your neutrality nor your impartiality but also the appearance of your neutrality and impartiality.

My suggestion is that you lay down or come up with some rules so you can actually establish proper ways to be contacted and proper ways to have your meeting, some like to be contacted just over the phone, no more than 30 minutes, others just an email will serve and others like to have a face-to-face meeting, as well, go for a no more than 30 minutes long conversation.

What to ask?, will be fairly simple, to know the name of the parties and if they are a holding, then to know the names of the subsidiaries to the holding, the name of the counsel representing the parties on both sides of the table if possible, and finally the rules of arbitration. To know the names of the parties and their counsel will help you in avoiding conflicts of interest, and also to know the arbitral rules will help you in preparing yourself to the rules agreed by the parties.

What to discuss?, in this case there are couple of things to discuss, one is your previous experience on arbitrations, either as an arbitrator or co-arbitrator, as well as your experience on the relevant knowledge of the substantive law, if you already know the parties, you need to know if it is an international sales problem or a joint venture problem in a certain industry like pharmaceutical, construction, automotive, etc. Also, you can discuss your time availability for the arbitration at hand.

What you should avoid discussing? Avoid getting into the details of the case, that is, if it is a sales contract, avoid actually reviewing the sales contract between the parties, or getting into details on how the actual dispute took place. Just, don’t do it, this is because the possible counsel or the parties will have an impression that you are their arbitrator and can go with you directly any time they want in order to discuss more things once you become “their” arbitrator.

After the appointment as an arbitrator and the constitution of the arbitral tribunal, you should avoid above all the so called inter-partes communications, whenever they could happen, include the arbitral tribunal and the other parties in the mix.

As you discovered with the answer and the request for arbitration, there will be the need for you to appoint an arbitrator, if it is a sole arbitrator you will need to agree with your counter party on this issue, and if you don’t agree, then it will be up to the judge by the request of one of the parties under an ad hoc arbitration, and if it is institutional arbitration this will be a task by the arbitral institution.

However, if it is a three member panel, then you are free to appoint your arbitrator, with this, you will need to make a conscious choice, you will perform what is called in the industry as a beauty contest, meaning that you will have interviews with possible arbitrators in order to be appointed to the dispute at hand.

But, what to expect and what to look for?

First, for my point of view make sure that your arbitrator actually speaks the language of the arbitration, as well as the possible second language of the contracts and documentation created, since it is of crucial importance that your arbitrator and the arbitral tribunal as a whole understands you.

Second, availability of time, and I cannot stress this enough, have an arbitrator that actually will devote her time to your dispute, that she will do her outmost diligent use of time in order to understand the dispute as well as to read the case files, you need this, and this is why you are appointing your arbitrator, also, make sure that your arbitrator will agree on exclusive confidentiality and not resort to junior lawyers for the reading the memorials, the evidence and drafting of the orders and the award.

Also, it is relevant that your arbitrator has previous experience in arbitration, whether as an actual arbitrator, secretary to the tribunal, part of the arbitral institutions, or if not, as a lawyer representing clients in arbitrations, with a good knowledge of the subject matter.

My personal ranking of what to look for an arbitrator is first the language, time availability, knowledge of the subject matter, and least, previous experience in arbitrations.

Why I rank in the last part the previous experience as an arbitrator, well, because even if international arbitration may appear as an intricate dispute resolution mechanism, it is a process that reflects what is commonly practice in any judicial arena where two parties have a legal dispute, and if you have a great lawyer with great knowledge of the law, then you are in a good standing on what to expect from your arbitrator.

Previously we saw the steps that you will take under a commercial arbitration. Having a roadmap can give you a perspective of what lies ahead so you can plan accordingly, and preparation in Arbitration is a key component, planning ahead will do wonders.

Well, let’s get back to business. So you received the request for arbitration, and with that what you have to do first, is not to panic, and avoid an attitude of not answering, I have seen lawyers not acquainted with arbitration, that one of the first strategies given to clients is to do nothing and not answer the request for arbitration.

Believe me, it will harm the case of your client, avoid such path.

So, in order to give a proper answer, you first need to locate if the type of arbitration is institutional or ad hoc, if it is institutional go directly to the rules agreed by the parties so you can establish a time-frame for the answer. T minus 30 days is a possible time for your answer. But sometimes clients take longer to decide what to do with the request for arbitration and to find a lawyer who is keen to the dispute and to the arbitration process.

The days that you may have are not that many, so plan accordingly in your answer, with that the best advice is not to overwork an answer, as said before, you will have time for that. So if you feel that you are against the ropes, review the arbitral rules and ask for an extension, it is possible to do it and most of the times it is granted.

The attitudes that you can take on your answer are the following: neglect the actual claims directed at your client, whether you agree or not that there is an actual dispute, to accept or neglect the existence of an arbitration agreement, and to agree or not with the appointment of a sole arbitrator or to appoint your arbitrator at that stage or on a later stage, and finally to counter claim.

The structure to be implemented for your answer to the request of arbitration is the same as to the request of arbitration, you can find it here.

As you discovered with the answer and the request for arbitration, there will be the need for you to appoint an arbitrator, if it is a sole arbitrator you will need to agree with your counter party on this issue, and if you don’t agree, then it will be up to the judge by the request of one of the parties under an ad hoc arbitration, and if it is institutional arbitration this will be done by the Institution who administers the arbitration.

However, if it is a three member tribunal, then you are free to appoint your arbitrator, with this, you will need to make a conscious choice, you will perform what is called in the industry as a beauty pageant or beauty contest, meaning that you will have interviews with possible arbitrators in order to be appointed to the dispute at hand.

As we saw previously, there is an actual roadmap to be taken for commencing arbitrations, in this case what opens the door for arbitration is having an arbitration clause, without it there is no much you can do to have access to arbitration.

After there is an arbitration clause agreed, and if a dispute arises between the parties signatories to the arbitration agreement (either as in the form of a clause or as a separate contract), then the first step is to write your request of arbitration.

What you should put into such arbitration request?

Fear not, this can actually be drawn from the institutional arbitration rules or if it is ad hoc you can also get a general idea from the said arbitral institutional rules, as for example the ICC (International Chamber of Commerce) sets in their rules for arbitration the elements that should be included in such a request:

1. Name, description and address of each of the Parties  
2. The contractual relationship between the parties as well as the nature and circumstances giving rise to the dispute
3. The arbitration clause, the governing law substantive and as well procedural, the seat of arbitration and language.
4. The possible designation of an arbitrator, or to be set in conjunction with respondent.
5. Claimant’s damages
6. Statement of relief
7. Payment of the advance of arbitrator’s fees by Claimant

When drafting your request for arbitration, try to be brief, since you will have the opportunity to go at great lengths after a schedule is organize under the Procedural Order 1, which sets in motion the arbitration, which means, after the constitution of the Arbitral Tribunal.

In this phase you need to pay close attention to two elements, one, that there is an actual agreement to resolve the dispute under arbitration, in other words that an arbitration agreement exists, and second, that there is an actual contractual relationship which was affected by your counterpart’s behavior.

But, as said before, you don’t need to write a long request of arbitration, since you will have your opportunity later on.

Be brief and to the point.

Let’s say that one good day at your office, while having a good cup of coffee, which means is like your second cup since you leave house already jacked with coffee beans running through your system racing like F1 cars all over you blood stream like in Montecarlo raceway, and all of a sudden someone knocks on your door, screaming they have released the “moot problem” or, we what a new case!

Whether as it may, you find out that there is an actual dispute between two or more parties involved into a legal relationship, and there is an arbitration clause, you are representing “Horace Fastrack”…., just kidding, well not if you are involved in the Vienna Moot, but well bear with me.

What to do when you are in front of an arbitration clause and a Request of Arbitration? Well, read carefully the arbitration clause, determine the elements of the arbitration clause, and whether or not you are before a possible valid and invalid clause, also locate the seat of the arbitration proceedings, since it will be where the judges will collaborate with the Arbitral Tribunal, and also whether there is an indication of “ad hoc” or “institutional arbitration”.

Things to look for before start writing your first request for arbitration:

• The substantive law applicable to the contractual relation between the parties.
• The procedural law applicable to the actual process of arbitration that will be applicable as a back up rule whether in “ad hoc” or “institutional” settings. This law can be different from the substantive law.
• In case of institutional arbitration the rules of arbitration from such institution.

After you have done your checklist on the possible applicable laws, then you need to have a roadmap of what could occur down the road:

1. Request of arbitration
   • Directed to the arbitral institution in case of “institutional arbitration”
     • The institution will deliver the request on your behalf, but before doing that, you have to pay an advance on the administrative fees.
   • Directed to the counter-party in case of “ad-hoc”.
2. Answer the request to arbitration
   • You may answer but also establish possible counterclaims
     • Be wary because this will increase the amount in dispute increasing the costs of the arbitration.
3. If there are counterclaims, expect the answer to such counterclaims
4. Then, there is the process of the constitution of the Arbitral Tribunal
   • If there is one member both parties will agree on the appointment of the arbitrator, if there is lack of agreement, the Institution will appoint the arbitrator –in case of “institutional arbitration”–, in case of “ad hoc” will be the judge of the seat.
   • If there is a three member Arbitral Tribunal, each party will appoint their respective arbitrator, and the arbitrators appointed by each party will appoint the president of the Arbitral Tribunal
5. Then there will be a PO1 (Procedural Order Number 1)
   • In there you will agree on a schedule, how to name the evidence, and the actual disputes between the parties
   • Also there will be the advance on costs
6. Memorials
   • Claimant
   • Respondent
7. Hearing phase
   • Pre-hearing conference, to make some arrangements
   • Actual hearing
8. Post-hearing briefs
9. Award
   • Tribunal discussions
   • Rendering of the Award

Hopefully this roadmap is helpful to jumpstart yourself in arbitration, and when you are at a Moot Problem, especially in the Willem C. Vis, you will be involved in steps six and seven, the previous elements you will see them within the brief given to the teams.

And if you are someone just starting in your first arbitration case, this might be as well helpful.

Cheers.

One of the questions that now and then pops up is to understand whether or not we are happy with what we are doing. Sometimes this is also with our activity as lawyers involved in arbitration.

Arbitration as any other type of an activity that requires high amounts of energy, physical, mental and emotional can drain you out, or burn you out, you have to know yourself and know your limits.

Which means first to know when to say no, and when to say yes.

This is is really easy said than done, you are afraid that if you don’t talk in a given venue, that if you don’t write in a given review, or that if you just say no to an appointment as an arbitrator or as a lawyer, you will be doomed.

Is it possible to wake up and say to yourself:

What a wonderful week ahead representing my clients!

Drafting a memoranda!

Preparing for the hearings!

Yes it could be possible, but how to get there?

The first element and the idea I want to share with you is that be proud of the great work you will be doing, with that idea in your head, it could be possible to think that whatever happens down the road you did a work that first of all you are proud of.

Being proud of your work means, that you worked smart, with passion, with drive and with energy, with the elements that were handed to you, and with that you did all what was possible in your capacities.

So, if you are proud of your work and what you are doing, then the feeling and the mindset is positive, much of the people involved in arbitration are high achievers, prone to perfection, with that we want to control everything, even the outcome.

Learning to let go, and be proud of your work is a start. Be proud of your effort and that you did all you can do for your client.

Remember, arbitration is just a tool for dispute settlement, which means is a means to an end, don’t change the end for the means, care for yourself!