Do you prefer to use a Tribunal Secretary?
In most cases, a Tribunal Secretary will add value to the Parties and the Arbitrators. Their services usually reduce the overall cost of the proceedings and aids the tribunal in task-management. In determining whether a Tribunal Secretary would be beneficial in a particular case, I will consider a variety of factors including the complexity and nature of the case, the scope of the pleadings, and the extent of the anticipated evidence.
I will never appoint a Tribunal Secretary without the prior consent and approval of the Parties. Finally, I would insist that the Tribunal Secretary observe the same level of impartiality and independence as the Arbitrators.
How much does your case management approach vary, case to case?
Although I approach cases from the perspective that the proceedings “belong to the Parties”, I am well aware of the case management differences between the civil law and common law traditions. In my experience, an Arbitrator must be flexible and select the procedures and techniques from these different legal traditions in a manner that is best suited to the circumstances of each case.
What is your approach to proposing settlement mid case?
Parties select arbitration primarily to resolve their disputes efficiently and cost-effectively. Mediation can be an integral part of the arbitration process. If the Parties desire, I will facilitate their interest in reaching an early resolution of the dispute. However, I will always avoid any conduct that may question my independence and impartiality, or which may be contrary to the Parties' agreement.
What is your approach to identifying potentially dispositive issues early?
I favor addressing dispositive issues early in a case and, as may be appropriate, throughout the proceedings. Parties should not have to engage in extensive and costly proceedings on issues that are narrow and readily resolvable. If the Parties wish to present dispositive motions, I will schedule a briefing period on dispositive motions that provides the Parties with ample opportunity to submit their respective arguments.
How often do you use the IBA rules of evidence? Will you do it against one side's wishes?
I will typically apply the IBA rules. If appropriate, I may also apply these rules against the wishes of a particular party.
Do you encourage the use of skeleton arguments?
Yes, I encourage the submission of skeleton arguments to assist the tribunal in focusing on the main facts and issues. In a complex case, skeleton arguments may benefit the tribunal by outlining the arguments and relevant evidence.
Do you encourage the use of discovery?
I prefer limited and focused discovery that follows a Redfern Schedule. Unless the controlling Arbitration agreement compels me to do so, I will rarely-if ever, allow the Parties to pursue “American Style” discovery.
As a co-arbitrator – will you ever consult with the party who appointed you on the selection of the Tribunal Chair?
With full disclosure, I prefer to consult with the party that appointed me regarding the selection of the Chair and may suggest potential chairs if requested by the party.
As co-arbitrator – are you in favor of the Parties interviewing the candidates that you have identified for Chair of the Tribunal?
Yes, I encourage the Parties to interview the potential Chairs that I may have identified. This is consistent with the Parties' obligation to maintain an active role in all stages of the proceeding, especially in the appointment process.
What is your approach to counsel misconduct? Do you prefer to deal with it then and there or to wait until the end of the case?
I prefer to address and resolve this sensitive issue immediately when it allegedly occurs.
What is your usual approach to costs?
I will consider the allocation of costs in any final award based on the merits of the claims and defenses presented. This assumes the Parties' agreement or applicable rules do not provide for an alternative measure or standard for the allocation of costs.
Would you describe your procedural style as closer to common or civil law?
Although I am trained in the common law tradition, many of my international commercial arbitration matters have either been “seated” in a non-US city or have involved the laws of a country other than the USA. As a result of my experience in these matters, and especially in Investor-State disputes, my “procedural style” is a mix between the common law Socratic approach and the civil law “inquisitorial” approach to case management. I do clearly prefer, however, to “front load’ the evidence in the civil tradition and minimize the use of “rebuttal” pleadings and evidence. In the end, my “style” is case dependent and will always be driven by the overarching need for efficiency and due process.
Do you have any particular areas of industry knowledge?
Construction, financial services, technology, and international supply chain disputes.