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Arbitration Creates New Customs

posted 3 years ago

Free of hard and fast rules and relying on the best sources, international arbitration has created a unique culture. Some customs pertain to the very form of conducting a hearing. Hearings are held in arbitration courts or conference rooms at chambers of commerce, law firms or hotels. Arbitrators sit at the head of a conference table; the claimant and its legal representatives sit to their right, while the respondent to their left. Sometimes, it is the other way around. When the accepted Terms of Reference or the Provisional Timetable form suggests placing the names of the parties and their legal representatives in a column on the first page of these documents, the claimant is typically mentioned in the left-hand column, and the respondent in the right-hand one (X versus Y). It may be easier like this for the arbitral tribunal to check attendance and identify of the persons present in the room, especially in a multi-party arbitration.

Arbitrators are known for their distinctively different conduct. It is not the robe, wig, chain, or court hammer which makes us honor and respect arbitrators. Unlike in courts of law, all hearing participants remain seated, even when they address the Arbitral Tribunal. However, that does not rule out a sense of respect, courtesy or good manners. In some countries arbitrators are addressed as Your Lordship, Your Honor, Distinguished Arbitral Tribunal, Distinguished Arbitrator. While addressing the legal representatives of the opposing party, one uses terms, such as My learned colleague or My distinguished colleague. These terms sometimes sound strange to the ear of a lawyer educated in communist Central Europe, even though everyone realizes that they do not imply any irony or sarcasm.

Any malicious remarks addressed to the opposing party in arbitration, let alone the arbitrators, are considered inappropriate. Exchanges of arguments between legal representatives tend to be milder than in court proceedings. In arbitration, lawyers fight with foils, rather than swords. A sense of humor, good manners and a positive attitude toward all co-participants are always welcome.

The atmosphere at a hearing should be at least somewhat reminiscent of that of the negotiations during which the parties once concluded their agreement. The atmosphere in question should be different from that in the courtroom. Joint meals during breaks are welcome, on condition that the persons involved do not discuss the case. Taking time-off for consultations is considered quite normal. It is acceptable for the legal representatives of the parties to communicate with absent management board members or with other lawyers for the purpose of discussing respective positions and settlement proposals.  The lawyers from civil law jurisdiction should not underestimate the importance of the witnesses’ testimonies and can pay a much more attention than they usually do in the court proceedings to the preparations to the hearing. 

There is a unique type of etiquette in place between arbitrators in international arbitration. An arbitrator residing in the seat of arbitration should find out if the other co-arbitrators need help with booking accommodations, secretarial assistance or transportation. He should offer such help. As a rule, such an arbitrator invites the other co-arbitrators to the first meal, usually dinner preceding the first hearing. Another unwritten rule is that the chairman of the arbitral tribunal invites the co-arbitrators after the arbitration is over. As a matter of courtesy, one should have a brief meeting with the president of the arbitration institution administering a given arbitration or with the managing partner of the law firm where the hearing is held.

Arbitration is associated with unique terminology. Such terms as rejoinder, rebutter, surrebutter or duplique, triplique, quadruplique, while referring to the sequence in which submissions are made, remain unknown in some legal systems. Such phrases as baseball arbitration, bifurcation, cross-file, chess clock system, flip-flop arbitration, wild cat arbitration etc. have enriched legal terminology, and the phenomena so named have enriched the customs adopted in arbitration. Some arbitrators became famous after introducing their own customs or practices, e.g.: the Böckstiegel method, the Goldman formula, the Redfern schedule, the Scott schedule or the Tomlein order.

Long discussion is recently held about how improve the efficiency of Polish court proceedings, especially about preparation of the main hearing. Dear judges (Your Lordship): Learn from arbitrators.


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