International Arbitration in practice

International Arbitration in practice
Greg Fullelove (Osborne Clarke LLP)
25 April 2022, University of West London
osborneclarke.com
1
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

osborneclarke.com
Part one
Expedited proceedings: the need for speed?
2
osborneclarke.com
3
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.
osborneclarke.com
4
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
osborneclarke.com
5
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
osborneclarke.com
6
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)
osborneclarke.com
Part two
The powers of the tribunal / the court – some key points
7
osborneclarke.com
8
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).

osborneclarke.com
9
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
osborneclarke.com
10
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
osborneclarke.com
Part three
Heading for the hearing: key stages
11
osborneclarke.com
12
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
osborneclarke.com
13
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.
osborneclarke.com
14
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
osborneclarke.com
Part four
International arbitration in a pandemic: any change?
15
osborneclarke.com
16
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
osborneclarke.com
17
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?
osborneclarke.com
Part five
International arbitration: common tricky issues
18
osborneclarke.com
19
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

osborneclarke.com
20
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.

osborneclarke.com
21
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?
osborneclarke.com
22
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]