International Arbitration in practice
Greg Fullelove (Osborne Clarke LLP)
25 April 2022, University of West London
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The Arbitral Process: Overview
Commencement:
Request and
Response
Appointment of the
Tribunal:
How? Common
arguments?
Interim relief?
Enforcement: the
‘heartbeat’ of the case
Procedural hearing:
Early engagement /
Procedural Order No.1
Security for costs?
Could the Respondent
derail the case?
Statements of case:
‘Memorial style’ or
pleadings and witness
evidence separately?
Document
production:
The ‘Redfern
Schedule’
Written evidence:
Witness evidence of
fact / expert evidence
The hearing:
Where? How? How
long?
Post-hearing briefs The Award
Enforcement /
Challenges to the
Award
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Part one
Expedited proceedings: the need for speed?
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Expedited Proceedings Under the ICC Rules
Application
• From 1 March 2017 – but new rules came into force on 1 January 2021
• Applies automatically to any dispute up to USD2 million – this is increasing to USD3 million under the
new 2021 rules (parties can opt out)
The Procedure:
• Sole arbitrator (appointed by ICC Court but parties may nominate), regardless of arbitration agreement
• CMC within 15 days of the arbitrator receiving the file.
• Parties may not raise new claims without the arbitrator’s authorisation
• No Terms of Reference
• Broad discretion of arbitrator on procedure (e.g. restricted disclosure and evidence, dispense with oral
hearing)
• Awards must be rendered within six months of the CMC.
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• London Court of International Arbitration (LCIA) case.
• The Request for Arbitration was filed on 8 June.
• The three member tribunal was constituted on 15 June.
• A witness hearing was held on 6 July following the exchange of submissions and evidence.
• A reasoned award was rendered on 21 July.
• Fast paced, strongly contested, high value, and multi-jurisdictional.
• Key feature: both parties required resolution.
True stories
Chapter One: The expedited arbitration
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• Began negotiating arbitration agreement – 28 June (Day 1)
• Information gathering by OC commences – 30 June – and continues until the day of the
hearing…(Day 3)
• Arbitration agreement signed – 5 July (Day 8)
• Claimant’s first submission (two witness statements) – 6 July (Day 9)
• Sole arbitrator appointed – 13 July (candidates proposed by LCIA, parties each vetoed one) (Day 16)
• Respondent’s Defence (plus two witness statements) – 14 July (Day 17)
• Telephone CMC – 18 July (Day 18)
• Claimant’s Reply (two witness statements) – midday 19 July (Day 22)
• Respondent’s Response (three witness statements) – 20 July (Day 23)
True stories
Chapter Two: The compromis
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• Hearing – Friday 22 July (4 hours) (Day 25)
• Costs submissions – Wednesday 27 July (Day 25)
• Replies to costs submissions – 12.30 Friday 29 July (Day 32)
• Award available – 13:05 3 August (8 working days from hearing) (Day 37)
True stories
Chapter Two (continued)
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Part two
The powers of the tribunal / the court – some key points
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Powers of Arbitrators
• Source: arbitration agreement, institutional rules (if applicable) and procedural law of the seat.
• Wide powers over procedure of the claim
• Limited powers of enforcement. Tribunal cannot enforce its own orders (but can make costs orders,
draw adverse inferences or refuse to admit evidence)
• Only the courts can enforce orders.
• For example, in England see section 41(5) AA 96 (mandatory): tribunal can make a peremptory order if
a party fails to comply with an order. This will usually be in the form of an unless order.
• Section 42 court can make an order requiring a party to comply with a peremptory order (where seat is
in England). A breach of that order will be a contempt of court (fine/prison).
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Interim relief? Powers of the Arbitral Tribunal
and the Courts
• Types of interim or conservatory relief
• Purposes for which it may be available
• Do you need to freeze assets?
• From the courts or the Tribunal?
• Availability of an emergency arbitrator?
• A potentially decisive, or even determinative, factor in a dispute
• Enforcement as the ‘heartbeat’ of the case
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Security for costs?
• Available only from the Tribunal (not the courts)
• Where the claimant is unlikely to be able to satisfy a costs order against it
➢ Especially where assets are located out of the jurisdiction
• Consider timing of application
➢ Requirement to disclose financial information or provide security can apply significant pressure
• Relevant factors
➢ Claimant’s financial strength
➢ Foreign residence/nationality?
➢ Respondent’s counterclaims
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Part three
Heading for the hearing: key stages
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Statements of case and supporting evidence
• Typically two rounds of statements of case:
➢ Claimant’s statement of claim
➢ Respondent’s statement of defence (and any counterclaim)
➢ Claimant’s reply (and any defence to counterclaim)
➢ Respondent’s rejoinder (and any reply to defence to counterclaim)
• Precise form is not specified in statute or arbitration rules
➢ cf. Court pleadings vs ‘memorial approach’
• Importance of enumerating all heads of claim
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Document production – Redfern Schedule

Request	Reason for request & rebuttal to objection	Objection	Tribunal’s decision
REQUEST 1 All documents relating to the steps taken to establish and appoint members to the ABC Association.	Relevance to pleading Relevant to paragraph 10 of the Request for Arbitration. Reason for request This category of document is relevant to the claimant’s claim for breach of the respondent’s obligation to create favourable conditions for investment and to accord the claimant fair and equitable treatment. Rebuttal to respondent’s objection 1. The request relates to all documents within a specific and clearly identified category of documents which are material and relevant. 2. The respondent must establish the application of this exemption to particular documents.	1. The request is unduly burdensome as it relates to “all” documents “relating to” the subject matter of the request and no time limit is specified. 2. The respondent also objects insofar as the request calls for documents reflecting government deliberations which are subject to public interest immunity.	Although the documents requested are relevant, their production is unduly burdensome insofar as the request relates to “all” documents “relating to” the subject matter of the request. The respondent should produce to the claimant documents relating to the appointment of members to the ABC Association between 1 June 2008 and 31 December 2008. If the claimant does not consider the documents supplied sufficient, the claimant will have an opportunity to file a request for additional specific documents on the second round of requests for document production

*Source: Practical Law Company ‘Specimen Redfern Schedule and drafting note‘ © 2015 Thompson Reuters.
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The hearing
• Typically < one week
• Administrative arrangements for the hearing
• Representation of the Parties
• Hearings are private
• Typical order of proceedings:
➢ Opening statements
➢ Examination of witnesses (direct, cross and re-direct)
➢ Closing submissions
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Part four
International arbitration in a pandemic: any change?
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Impact of COVID-19 on international arbitration
• The pandemic had increased the move towards remote hearings. Remote hearings were regularly
used pre-pandemic too, given the international nature of arbitration
• Various institutions have published guidance for remote hearings, including the ICC and Seoul
Protocol for Video Conferencing
• When nominating arbitrators, take into account their likely familiarity with remote technology
• Consider confidentiality and privacy
• Platform choice – some institutions offer their own online platforms
• Electronic bundles
• Not just hearings that are challenging: logistics of fully remote filings, witness coordination, evidencetaking, client-care, etc.
• Need for technical support during hearing time
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Remote hearings during the pandemic
• Already existed pre-pandemic. However now the ‘norm’.
• Witnesses: practice runs and ensuring no coaching/interference during testimony
• No need for the hearings to take place in arbitral seat so no impact if arbitrators joining remotely
• Although remote hearings can be more efficient and cheaper than in-person hearings, and a less
stressful experience for witnesses, there are downsides too e.g., harder to “read” the arbitrators and
witnesses
• On the other hand, there is a chance to note reaction of a witness’s evidence on the other side and
their lawyers
• Harder for arbitrators to interrupt and ask questions?
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Part five
International arbitration: common tricky issues
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The problem of the ‘non-responder’ / ‘nonparticipant’
• What happens when a party does not participate?
• Or participates then drops out?
• Can the Arbitral Tribunal continue?
• Who pays?
• How should you approach a hearing with only one party present?
• The importance of giving both sides an opportunity to present their cases.
➢ CIArb Guidelines for Party Non-Participation
➢ http://www.ciarb.org/docs/default-source/ciarbdocuments/guidance-and-ethics/practiceguidelines-protocols-and-rules/international-arbitration-guidelines-
2015/2011partynonparticipation.pdf?sfvrsn=28
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Guerrilla Tactics
Relevant factors
• Limited powers of tribunals;
• Greater influence of parties over procedure (e.g. deadlines); and
• Limited rules regulating conduct of counsel
Examples
• Delay generally and frustrating an orderly and fair hearing;
• Witness tampering;
• Satellite court applications / injunctions designed to delay or obstruct; and
• Frivolous challenges of arbitrators – a number of recent decisions – usually
unsuccessfully.
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LCIA Schedule regarding ethical issues
The guidelines include:
• not unfairly obstructing the arbitration / award. E.g. repeated unfounded jurisdiction or arbitrator
appointment challenges
• not making any false statement to the tribunal or LCIA Court.
• not procuring, preparing or relying on any false evidence.
• not concealing any document that the tribunal has ordered be produced.
• not initiating any ex parte contact with an arbitrator without prior written disclosure.
Parties must ensure their counsel have agreed to comply with these guidelines.
Remedies for breaches:
• Written reprimand,
• written caution,
• “any other measure” (could include the exclusion of counsel from a case).
Do the guidelines turn a tribunal into a type of disciplinary body?
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Biography

Greg is the Head of the International Arbitration Group at Osborne Clarke. He has acted in international disputes across the world, including acting as counsel in hearings in the US, Luxembourg, France, Germany and the UK. He has particular experience of energy and financial services disputes. As well as oil and gas disputes, Greg has acted on renewables disputes including in relation to solar and hydroelectric power projects. Greg was recently recognised as a Global Leader by the respected directory Who’s Who Legal, which has said that his “ability to come up with quick solutions for complex problems is extremely impressive”. He was praised as “superb under pressure” and “very well liked and respected by both his clients and colleagues“. Greg has acted as counsel and advocate in both international commercial and bilateral investment treaty arbitrations. He has conducted both ad hoc and institutional arbitrations to final award, including under the LCIA, ICC, ICSID and UNCITRAL rules. He has also sat as arbitrator. Before joining Osborne Clarke as a Partner in 2012, Greg practised from 2000 to 2012 at Freshfields Bruckhaus Deringer LLP, where he was a member of the International Arbitration Group and qualified as a solicitor advocate. Together with Julian D.M. Lew QC and others, Greg is an editor of the practitioner text on arbitration law and practice, Arbitration in England (2013).

Greg Fullelove
Partner
T+44 20 7105 7564
[email protected]