INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH LUIS MARTINEZ 03
IN CONVERS AT ION WI TH LUI S MART INEZ V I CE PRES IDENT OF THE INTERNAT IONAL CENTRE FOR DI SPUTE RESOLUT ION Brian Dunning, Partner at Clyde & Co, discusses the International Centre for Dispute Resolution’s (ICDR) new rules with its Vice President, Luis Martínez
CH A NGE S T O T HE I CDR RUL E S : WH AT A ND WH Y ?
didn’t give a party full opportunity to present its case, even though application of these guidelines has never resulted in a vacatur. In fact, there are two reported cases—one in New York and one in New Jersey—where courts rejected vacatur attempts in cases where arbitrators relied on our guidelines to limit discovery. As well as our desire to incorporate our discovery guidelines in the Rules, we were also keen to look at user feedback about the Rules over the last five or six years. Common complaints were timing and cost, so we wanted to address those things. We also wanted to promotemoremediation. And, of course, we wanted to try to introduce the expedited international procedures whichwe are very excited about. We felt that they should automatically be in place in cases of USD 250 thousand or less but we also wanted to design them in away that parties could easily apply them, by agreement, in larger cases. For cases of USD 100 thousand or less the presumption is that the award will bemade on the documents alone. BRI AN That is good news, indeed. As you surely know, there is a serious need for a place to resolve disputes in that range without having to enduremassive discovery or spend a fortune on attorneys. My own experience is that the courts are ill-equipped to handle those kinds of cases because the breadth and cost of discovery is often the same for small cases as it is for large cases, and it still takes a lot of time to get those cases resolved. LUI S And, on that score, the expedited rules establish an accelerated time frame. We’ve retained the well-known ICDR/ AAA strike and rankmethod for selection of arbitrators (where the ICDR provides a list of names, each party strikes out some names and ranks the remainder in order of preference), but it’s a shortened list with accelerated time frames for turn-around.
BRI AN Changes to the Centre’s rules are currently big news in the arbitrationworld. Whywere the rules amended?Was it in response to specific feedback fromparties and the arbitration community? Or were the changes just part of filling gaps and observing best practices in the field? LUI S Really, all of those points came into play. The American Arbitration Association (AAA) has a long-established tradition of consulting advisory groups which help us to craft rules that target the needs of particular industries. We also rely heavily on the feedback we get fromour users. The last significant amendments weremade in 2006, whenwe became the first arbitration institution to introduce access to an emergency arbitrator, which has been very successful. Then in 2008, we concluded guidelines on the exchange of information in response to the perception that arbitrationwas becoming overly Americanized, particularly in relation to discovery. Our guidelines dealt with the issue inways similar to the IBA rules of evidence, although the IBA rules are only guidelines and we have asked arbitrators to treat our guidelines as if they weremandatory. We did this to avoid fishing expeditions, to ensure that document requests were narrowly tailored, and to encourage arbitrators to consider the economy of a given case. The guidelines dealt successfullywith electronic discovery and privileges; and didn’t even contain the word “discovery.” But, having said that, we knew that at some point we would have to include these concepts in the rules themselves because we were getting pushback fromour arbitrators. No arbitrator wants to have an award vacated because he
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