INTERNATIONAL ARBITRATION 1/3LY
REG I ON A L T RENDS IN A S I A - PA C I F I C
NE IL What goes wrong at themoment is that the tribunal is servedwith boxes and boxes of documents. It’s assumed that they read themall and understand the case. The Chairmanmight 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. Theymay just read the witness statements. So you potentially end upwith an uneven consideration of the issues, with everybody rushing to get on top of the case just before, during and after the hearing. It struckme that, duringmy days at the Bar, one of the things I enjoyedmost 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 fashionedway. This approach ensures that the whole tribunal is up to speed on the case. It also enables the tribunal to have ameaningful dialogue with the parties, three to sixmonths before themain hearing. As it stands, if you raise something at the first day of a hearing, not much can be done about it.
BE TH So inmanyways an early opening would be the equivalent of an early identification of issues? NE IL Yes! It provides the opportunity to assess which points should be dropped andwhich points should be pursued. The parties are going to be in the same room for two days, so theymaywell come to some accord about throwing away some points. Andwhat it really does is inform the rest of the case preparation. If necessary, it’s a vehicle fromwhich 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 nowand I knowmany other people are also starting to do it too. Inmy opinion, it leads to a better and quicker award.
BE TH 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? NE IL What you usually findwhen there’s an economic down-turn is that there aremore 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. NowMelbourne 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 givenmore time, publicity and a deeper knowledge of the advantage of arbitration, the larger Australian corporationsmay try to negotiate harder for an Australian based seat.
WHAT YOU USUALLY F IND WHEN THERE ’ S AN ECONOMI C DOWN-TURN I S THAT THERE ARE MORE BAD C A SES .
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