INTERNATIONAL ARBITRATION 1/3LY
REGIONAL TRENDS IN ASIA-PACIFIC
NEIL What goes wrong at the moment is that the tribunal is served with boxes and boxes of documents. It’s assumed that they read them all and understand the case. The Chairman might get the nearest to doing that, but I’m not convinced that the wingmen are going to open all those boxes and read all the documents. They may just read the witness statements. So you potentially end up with an uneven consideration of the issues, with everybody rushing to get on top of the case just before, during and after the hearing. It struck me that, during my days at the Bar, one of the things I enjoyed most was opening cases. You stand up in front of the judge, who has no prior knowledge of the case, and you go through the documents and pull out all the important parts. I thought that we should do something similar in arbitration. I have suggested using an early opening whereby, after the first exchange of pleadings and the witness statement, you call the parties in and give each side a day to open the case - in an old fashioned way. This approach ensures that the whole tribunal is up to speed on the case. It also enables the tribunal to have a meaningful dialogue with the parties, three to six months before the main hearing. As it stands, if you raise something at the first day of a hearing, not much can be done about it.
BETH So in many ways an early opening would be the equivalent of an early identification of issues? NEIL Yes! It provides the opportunity to assess which points should be dropped and which points should be pursued. The parties are going to be in the same room for two days, so they may well come to some accord about throwing away some points. And what it really does is inform the rest of the case preparation. If necessary, it’s a vehicle from which you can deal with really difficult and contested procedural or preliminary issues which can be sorted out. It’s called a Kaplan Opening - a “KO”. I have conducted it several times now and I know many other people are also starting to do it too. In my opinion, it leads to a better and quicker award.
BETH Have you noticed any kind of trends in disputes within the Asia Pacific region that may have been a result of global events, such as the global economic crisis? NEIL What you usually find when there’s an economic down-turn is that there are more bad cases. In other words, more people are trying to buy themselves some extra time by putting forward arguments that aren’t all that good. But you know, that was a long time ago now, and I hope we’re not in for another one. But I haven’t noticed that so much recently. I have noticed an increase in activity in Australia. Sydney has promoted itself for sometime. Now Melbourne and Perth have arbitration centres and try to promote themselves as well. Australia is a safe neutral venue for Asia-Pacific disputes. The law is up-to-date, Judges are experienced in arbitration and understand their limited role under NYC and UNCITRAL rules, and there is, of course, the huge Australian legal diaspora. I would hope that given more time, publicity and a deeper knowledge of the advantage of arbitration, the larger Australian corporations may try to negotiate harder for an Australian based seat.
WHAT YOU USUALLY FIND WHEN THERE’S AN ECONOMIC DOWN-TURN IS THAT THERE ARE MORE BAD CASES.
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