INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH NEIL K APL AN CBE QC SBS 05
BE TH That could also address the conundrumaround whether to appoint one or three arbitrators in advance, as the appropriate number often depends onwhat kind of issues you’ve got. NE IL Yes, exactly. What else would I change? It’s hard to change the antics of lawyers but I must say, in recent years, I’ve seen some awfully bad cases of over- lawyering. It all becomes very destructive, very time wasting and expensive. In some cases the lawyers can be quite unpleasant to the tribunal and unpleasant to the other side. It’s not what arbitrationwas supposed to be. We get cases all the time where there are 40 or 50 lawyers on each side; and the billsmust be horrendous! BE TH Do you think that’s one of themost pressing challenges that practitioners have to address? NE IL These things shouldn’t happen. It seems tome that today somany things go onwhich irritate tribunals. If you’re unpleasant to the person that you’re trying to persuade, for example, writing rude letters to the other side, threatening the tribunal with a reservation of rights to pursue unwarranted challenges to purported due process violations and not being able to agree on the chronology of events, etc. It’s just not good advocacy. BE TH I suppose it has a lot to do with the rate at which international arbitration is developing. For example, arbitration in the Asia Pacific region is evolving at an incredible pace with new rules and new centres. NE IL Yes, and youwill know that it’s a question of training and education; explaining that litigation is not amirror image of arbitration. They are two very different practices and different skills are required for each. For many clients, arbitration is really the thirdmethod of dealing with international disputes. It’s just another limb of the litigation department. BE TH Do you think there’s enough training at that level?
NE IL It’s starting to increase – inmy day there was none at all.
For example, an arbitrator in investment arbitrationmay be thought to be pro state if he has ruled in favour of the state say two or three times in a row. However, the strong likelihood is that this is because the investor’s case has been poor and would have been dismissed by any tribunal. I really do object to this kind of speculation about what motivates people. BE TH Have you found that, in that context, there has been an increase in interviewing arbitrators as well? NE IL Not exactly, but there has been a big increase in using processes similar to a ‘beauty parade’. All that is really needed is for parties to choose an arbitrator who is able, honest and independent. I didwrite an articlemany years ago, for the Chartered Institute of Arbitrators, about an alternative systemof appointing arbitrators. It proposed that, at the time of agreeing the arbitration clause, parties should agree on a personwho is authorised by both to convene the appropriate tribunal, should a dispute arise. This thought came tome when I was sitting as arbitrator on one of your cases, Beth. Mymindwas wandering during a fascinating piece of evidence about welding or something. I looked tomy left and sawClyde Croft – a lawyer – and also onmy left wasMichael Pryles, another lawyer. If ever there was a case whenwe needed an engineer, accountant and a lawyer then this was it! So I came upwith the idea of parties empowering somebody to find out what the case was about and then to put together the dream team tribunal. We never get the dream team, though, because one party appoints a lawyer and then the other party reacts with another lawyer, and the two lawyers appoint another lawyer, and so on. BE TH Yes and they instinctively appoint an evenmore eminent lawyer. NE IL Exactly. So you end upwith lawyers deciding cases not really in their area of expertise and, therefore, finding it very difficult to resolve the case. The appointed person could also check on conflicts, availability, all sorts of things, and produce the team. As it stands, though, I’mnot aware of anyone really taking up the idea.
City University London has had aMasters course in arbitration for 25 years and there is nowa similar course in Hong Kong. King’s College London, where I went, has undergraduate and postgraduate courses in arbitration. So that’s very good. It’s the practical side of it that we need to concentrate on. Another thing – too often in arbitration – parties rely on solicitors, or attorneys, who are not necessarily trained as advocates to do the cross-examination. They don’t use barristers, and they aremissing a trick. Not every solicitor or attorney is trained to cross-examine. I have heard some very bad cross-examinations and I find themmost irritating to listen to. For example, when you ask a question and you get the answer youwant, move on to something else. But the inexperienced cross-examiners often come back to the same point, giving the witness the opportunity to wriggle out of their original answer. BE TH I imagine in those instances that they are trying to hammer the point home but instead they end upwatering it down. NE IL Yes, exactly. NEW CEN T RE S IN IN T ERN AT I ON A L A RB I T R AT I ON : WH AT MA K E S A N A RB I T R AT I ON - F R I ENDLY CEN T RE? BE TH With regards to the global development of international arbitration, we are seeing increasing competition in Asia. There’s always been the HKIAC in Hong Kong and SIAC in Singapore. What do you think centres need to do for them to stand out or attract users? NE IL First of all, centres should be located in an arbitration- friendly jurisdiction. That, inmost cases, is a given, for example the HKIAC and SIAC. However, not all centres are located in an arbitration-friendly environment.
Made with FlippingBook Online newsletter