Arbitration has attracted criticism that the process has become too long and costly to make it worthwhile, but there are steps that a good arbitrator will take to minimise costs and delays.
Some critics of arbitration point to a measure of concern in the marketplace about the increased length and cost of the arbitration process, which has arguably led some parties to question the value of international arbitration as an effective means of dispute resolution.
Mallesons recognises the benefits of arbitrating certain types of disputes but moreover, that the value proposition for clients pursuing this avenue can be greatly enhanced by taking proactive steps to streamline the process to deliver the best possible outcome, and minimise delay and cost.
Each arbitration proceeding is different, however, there are typically common areas where careful planning and a thorough working knowledge of the arbitral process can yield significant improvements in efficiency.
Some of these measures include:
ensuring that smaller, less complicated disputes are referred to only one arbitrator, not three
encouraging early settlement of the dispute, for example, by requesting the arbitrator(s) to provide preliminary views on any or all of the key issues in the dispute
requesting that the tribunal convene an early procedural conference to establish procedures and timelines
encouraging the joinder of parties and disputes where appropriate
avoiding the duplicity of multiple witnesses testifying about the same facts
encouraging experts to meet to identify common views and streamline points of contention before the hearing
considering whether a ‘fast track’ schedule or ‘chess clock’ process may be appropriate
at the hearing, using videoconferencing for witnesses not local to the venue whose testimony is not expected to be lengthy, and
requesting, and if possible obtaining a commitment, that the arbitrator(s) will issue any award within a reasonable time of a hearing.
The list above is by no means exhaustive, however, it does illustrate that with proactive preparation and attention to detail, several strategies can be adopted to maximise the benefits of arbitral proceedings.
Mallesons’ success in London Court of International Arbitration (LCIA) arbitrations
In utilising these techniques and demonstrating best practice, Mallesons has won two awards for more than US$30 million in LCIA arbitrations heard concurrently in London in March.
The arbitrations, brought by Mallesons’ Australian clients against a Swiss company, were conducted by a Tribunal composed of Peter Leaver QC, Professor Bernard Hanotiau and Dr Julian Lew QC. The Mallesons team consisted of partners Peter Megens (who acted as the lead advocate at the hearing) and Max Bonnell and senior associates Beth Cubitt and Jason Clapham.
Mallesons International Commercial Arbitration Team