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How to defend arbitration proceedings: Part 4

The initial response, defense, discovery preparation, witnesses, expert evidence and the early case hearing

Having an international arbitration claim land on your desk is one of the most challenging scenarios in-house counsel can face. It is vitally important to the business for in-house counsel to come to grips with the claim quickly and effectively coordinate the strategy and response on behalf of the company.

This series of brief guides will review some of the most pertinent points to consider when coordinating the defense to an international arbitration claim.

Part four deals with the preparation following the actual claim up to and including the early case hearing. Click here to read parts one, two and three.


The initial response

The initial response to the claim is usually brief. The applicable arbitration rules could require certain information to be included in the initial response, such as a brief summary of the facts, the details of any counterclaim and nomination of an arbitrator. Compliance with the applicable rules should therefore be checked before the initial response is sent. 

Defense

As with litigation, it is commonplace in arbitration for the claimant to submit a statement of claim outlining the facts on which he relies and the remedy he is seeking. The defendant will then be provided with an opportunity to reply to this statement, either within a timeframe agreed between the parties, or within a set time-period according to the applicable arbitration rules (the UNCITRAL Model Law, for example, allows 30 days for such responses). External counsel will typically draft the respective statements of claim and defense for both parties.

It is important to note that under the rules of a number of arbitration institutions, any objection to the tribunal’s jurisdiction must be raised at the very latest by the submission of the statement of defense, otherwise the defendant will be deemed to have accepted the tribunal’s competence and waived the right to object to its jurisdiction.

Consequently, if the early case assessment has highlighted that a jurisdictional challenge to the tribunal should be raised, external counsel must include this argument within the statement of defense.

Discovery

Establishing what documents will be discovered and what documents are likely to be requested require careful thought. The location of the arbitration and the applicable local practice in relation to disclosure will play an important role here.

As mentioned in part two of this guide (link), employees must be made aware that documents relating to the dispute should be preserved. 

Though the extent to which legal privilege will apply to documents depends upon the applicable law, it is still worth marking documents as ”privileged” if counsel considers that they could be privileged. This is because while labeling documents will not in and of itself guarantee protection, it will at the very least help to organize those documents which counsel deems to be important and prevent potentially privileged documents from being accidentally disclosed.

Digital documents often carry metadata, a digital footprint that can reveal certain deleted information, such as previous amendments and tracked changes. The recovery of metadata, however, is expensive and therefore a cost-benefit analysis should be considered before requesting metadata as part of discovery. Furthermore, the company’s exposure to metadata should also be taken into account before making the request. Consideration should be given as to whether an IT specialist should be hired to assist with the electronic disclosure.

Witnesses

It is likely that those employees most involved in the dispute will be required to provide witness statements, which will be time-consuming. Their availability therefore needs to be considered, not only in terms of business travel or annual leave, but also if they are due to leave the company. In the former situation, annual leave may have to be rescheduled where possible, while for departing employees, both confidentiality and cooperation clauses should be inserted into their severance agreement, ensuring their assistance in current and future disputes.

Expert evidence

Expert evidence can be very important to the outcome of an arbitration and therefore appointing the right expert is key to bolstering any defense.

When appointing an expert, consider the same things you do when appointing an arbitrator (see part three (link)). A candidate’s expertise within their field and past experience of writing reports for proceedings will be key indicators of their suitability. It is also vitally important that an expert witness provides his genuine and independent view of the matter in dispute to the tribunal. Cost and whether the expert can meet the necessary time frames are also important factors.

The expert’s availability also is a fundamental factor that should not be overlooked. There are few things more self-defeating to a party’s case than an unreliable or overcommitted expert, who cannot deliver an accurate report on time.

Personal recommendation either from colleagues or external counsel is always a good starting place for finding an expert. Failing that, there are directories that provide listings of experts in certain fields. These include:

Preparing for the early case hearing

Things to consider with external counsel prior to the hearing include:

Time frames. A timetable should be requested to suit the strategy, either by keeping it short to place the claimant under pressure, or long to stall proceedings.

Timetabling issues. Consider whether it is appropriate for the tribunal to split issues such as jurisdiction, liability and/or quantum.

Extent of discovery. The extent of discovery will be subject to the agreement of the parties and the applicable laws of the jurisdiction. It is unlikely that arbitrators will permit fishing expeditions for documents and evidence. 

Experts. So that an appropriate timetable can be decided, it will be necessary to outline the number of experts required for the dispute and how long the expert will take to compile his report. Note that the tribunal may also have views on the number of experts needed.  

Third parties. As mentioned earlier, if there are any third parties that should be joined to the proceedings, this should be raised.

Any further procedural matters should also be raised at this hearing.

Checklist

  • Time frames
  • Split quantum and liability?
  • Extent of discovery
  • Experts—request if they are needed
  • Third parties?
  • Other procedural issues—security?

Contributing Author

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Andy Moody

Andy Moody is a senior associate at Eversheds LLP, specializing in international arbitration, international litigation and international law.

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