Taming the Guerrilla in International Commercial Arbitration

ISBN-13: 9789811900778 / Angielski / Miękka / 2023

Navin G. Ahuja

Opis

The book explores the definition and nature of guerrilla tactics in international commercial arbitration. It analyses various such tactics deployed (pre-Covid and during Covid times) and portrays them in a way that enables one to visualise how, and possibly why, they might be deployed. Attempts to codify ethical standards and rules regulating the behaviour of legal representatives in international arbitration are examined. The book covers a range of culture clashes, addresses several elephants in the room, and looks at factors inherent in the arbitral process that create opportunities and increase temptations to misbehave. It considers the remedies and sanctions available in international arbitration and compares them to those available to the courts in civil litigation. In addition to recommendations for future research, the book offers solutions to curb the problem in line with party autonomy and with a critical analysis. “This manuscript is an essential solutions-based text that not only addresses a comprehensive range of modern-day guerrilla tactics in international commercial arbitration but also offers thoughtful methods to deal with the shenanigans that parties may bring to the arbitral process.” - Chiann Bao, Independent Arbitrator, Arbitration Chambers and Vice President of the International Chamber of Commerce, Court of Arbitration “Dr. Ahuja’s book is a thoughtful and highly practical contribution to the study of procedures in international commercial arbitration. It is replete with scholarly analysis, careful treatment of authority, pragmatic insights and policy discussions. Any practitioner or student of international arbitration would benefit from this volume.”                - Gary Born, Author, International Commercial Arbitration (3d ed. 2021)  “A highly readable and informative book which identifies and analyses the numerous guerrilla tactics parties may attempt to deploy in international commercial arbitration, the factors which may encourage such behaviour, and practical mechanisms to keep the proceedings on track. Both erudite and practical, this book is a must-read for parties, counsel and arbitrators alike.”                - Prof. Benjamin Hughes, Independent Arbitrator, The Arbitration Chambers “Guerrilla tactics are a pertinent problem in arbitration. Dr. Ahuja’s well written book not only describes the various tactics in a succinct way but provides extremely useful guidance on how to tackle them. It will be a primary source of reference for every practitioner faced with such tactics.”                - Prof. Dr. Stefan Kröll, Chairman of the Board of Directors of the German Arbitration Institute (DIS) “Taming the Guerrilla in International Commercial Arbitration offers a refreshingly candid and balanced discussion of ‘sharp practices’ in international arbitration. The book collects a wealth of information on guerrilla tactics previously only available in separate survey reports, articles, and guidelines on the topic. It additionally includes a chapter addressing tactics deployed in virtual or remote arbitrations due to the Covid-19 pandemic. The comprehensive research and analysis presented in this book make it a valuable resource to counsel, parties, arbitrators, academics, and those who deliver practical arbitration training. A must-read for those who want to better understand the practices that may lead some to disfavor arbitration and ways the arbitration community can respond to guerrilla tactics to improve the arbitration process for all participants.”                - Dana MacGrath, Independent Arbitrator, MacGrath Arbitration “From an unreasoned fiat of a wise man who left both sides equally unhappy but resolved the disputes effectively, arbitration has evolved into a full-scale trial before a party chosen tribunal. Its informality and expedition puts in peril the fundamental right of the recalcitrant to delay proceedings. Dr. Ahuja has assiduously articulated the measures, aptly christened Guerrilla Tactics, used to disrupt and derail arbitrations. An indispensable read for the practitioner and an insightful treatise for the policy maker.”                - Harish Salve SA QC, Blackstone Chambers “This book shines a spotlight on arbitration’s dark arts - guerrilla tactics. Dr Ahuja illuminates this shadowy world with excellent (and much needed) scholarship that is practice-based and useful for all stakeholders in arbitration. His examination of the root causes of this problem, recommendations on how to control it, comparisons with litigation practice and suggestions for future research marvellously combine to make this a work that is required to be consulted by all serious counsel, arbitrators, institutions and academics in the field of arbitration.”                - Romesh Weeramantry, Head, International Dispute Resolution, Centre for International Law, National University of Singapore

Spis treści

Chapter 1: A Bird’s-Eye View.................................................................................................. x

1.1    Introduction. x

1.2    Literature review.. x

1.3    Research Objectives. x

1.4    Research frontiers. x

1.5    Research methodology. x

1.6    Research scope. x

1.7    Structure. x

 

Chapter 2: The Nature of Guerilla Tactics in International Arbitration. x

2.1 Introduction. x

2.2 Understanding the basic framework of arbitration. x

2.3 International commercial arbitration. x

2.4 The various directions of the growth of international arbitration.................................... x

1. Evidence of increase in choice of arbitration generally. x

2. Increase in the amount in dispute in arbitration cases and attracting high value cases .... x

3. Increase in the number combined with growth and spread of arbitral institutions. x

4. Refinement of arbitral legislation and institutional rules. x

5. Increase in the number of States to the New York Convention.................................... x

2.5 How is international arbitration different from litigation and why would parties choose the former over the latter?. x

1. Enforcement x

2. Neutral venue. x

3. Confidentiality. x

4. Qualities and expertise of judges versus arbitrators. x

5. Number of arbitrators. x

6. Finality. x

7. Costs. x

8. Flexibility. x

9. Consistency / precedents. x

10. Availability of expedited procedure and express summary or early determination procedure  x

11. Interim / emergency relief. x

2.6 Origin and development of guerilla tactics. x

2.7 Understanding the notion of ‘guerilla tactics’ in international arbitration. x

2.8 Analysis of the different surveys in which users witnessed and conveyed dissatisfaction of the arbitral process due to the use of guerilla tactics. x

1. In 2010........................................................................................................................... x

a. Sussman and Ebere survey ............................................................................................ x

b. QMUL 2010 survey ...................................................................................................... x

2. In 2015........................................................................................................................... x

3. In 2018........................................................................................................................... x

2.9 Past attempts to codify ethical standards and rules for legal representatives.................. x

2.10 Conclusion. x

 

Chapter 3: The Various Forms of Guerilla Tactics and Their Impact on the Arbitral Process... ... x

3.1 Introduction. x

3.2 Frivolously challenging an arbitrator x

3.3 Non-participation. x

3.4 Failing to comply with the arbitral tribunal’s orders. x

3.5 Witness coaching. x

3.6 Disrupting cross-examination. x

3.7 Ex parte communications. x

3.8 Abuse of document production. x

3.9 Anti-arbitration injunctions and Italian torpedoes. x

3.10 Unethical party-appointed expert witnesses. x

3.11 Creating a conflict of interest. x

3.12 Multiplicity of arbitration proceedings. x

3.13 An arbitrator resigning. x

3.14 An arbitrator taking an aggressive and hostile approach towards one of the parties. x

3.15 An arbitrator disclosing confidential information relating to the tribunal’s deliberations. x

3.16 Conclusion. x

 

Chapter 4: Possible Factors that Might Enable Participants to Deploy Guerilla Tactics. x

4.1 Introduction. x

4.2 Due process concerns. x

4.3 Conflict between the different legal and cultural backgrounds and legitimate expectations  x

4.4 The notion of party-appointed arbitrators. x

4.5 The advent of new entrants. x

4.6 Consequences of non-lawyers acting as legal representatives. x

4.7 Inadequate regulation of party-appointed expert witnesses. x

4.8 Perception of inadequate sanctions. x

4.9 Inconsistent court intervention rules. x

4.10 Operating behind closed doors. x

4.11 Use of tribunal secretaries. x

4.12 Engagement of third party funders. x

4.13 The mentality of arbitrators that more work amounts to more money and less capacity. x

4.14 The absence of precedents. x

4.15 No (or limited) right of appeal x

4.16 Conclusion. x

 

Chapter 5: Mechanisms to Control Guerilla Tactics. x

5.1 Introduction. x

5.2 How has the civil litigation system in Hong Kong encountered the use of the guerilla tactics  x

1. Remedies available to the courts. x

a. Dismissal for failure to comply. x

b. Strict time frame. x

c. Claim or counterclaim struck out by the Court for failure to appear at a case-management conference or any pretrial review.. x

d. Striking out or amending pleadings. x

e. Requiring parties to disclose documents for the Court to conduct the case management summons  x

f. Court has full control regarding expert evidence. x

g. Proceed on an ex parte basis or dismiss the claim for failure to appear at trial x

h. Power to decide whether or not to adjourn the trial x

i. Contempt of Court x

j. Summary judgment x

k. Disposal of case on point of law.. x

l. Costs sanctions for misconduct or neglect x

m. Pay a sum of money into Court x

n. Interim relief. x

2. Remedies against the legal representatives, i.e. solicitors and barristers. x

3. Remedies against judges. x

5.3 How is the use of guerilla tactics in international arbitration tackled presently?. x

1. Remedies available to the arbitral tribunal x

a. Impose a fine. x

b. Costs. x

c. Drawing adverse inferences. x

d. Refusal to admit submissions or evidence. x

e. Dismissing the claim or rendering a default award. x

f.  Proceed on an ex parte basis if a party does not participate in the arbitration. x

g. Interim measures. x

h. Emergency arbitrator x

i. Expedited summary or and early determination procedure. x

2. Remedies against the legal representatives. x

3. Remedies against the arbitrators. x

a. Challenge to remove and replace the arbitrator x

b. Challenge the arbitral award. x

c. Legal action against the arbitrator x

5.4 Can the solutions in court litigation assist international arbitration in curbing guerilla tactics?  x

1. How courts presently assist the arbitral process in combating guerilla tactics. x

a. Hong Kong. x

b. England. x

c. Australia. x

2. Can the solutions available in court litigation be transposed to international arbitration? What can international arbitration learn from court litigation?. x

a. Why are the remedies in international arbitration fragmented?. x

b. Why imprisonment and imposing strict time frames not available in international arbitration?  x

c. Why aren’t sanctions or remedies automatically imposed in international arbitration?. x

5.5 Conclusion. x

 

Chapter 6: Recommendations. x

6.1 Introduction. x

6.2 Recommendation no. 1: arbitral institutions to provide informed model arbitration clauses  x

6.3 Recommendation no. 2: new set of ethical guidelines for legal representatives. x

6.4 Recommendation no. 3: label provisions as mandatory or non-mandatory. x

6.5 Conclusion. x

 

Chapter 7: Conclusion. x

7.1 Introduction. x

7.2 Summary of the main points. x

7.3 Suggestions for areas for future research 

O autorze

Dr. Navin G. Ahuja is an Editorial Board Member of the International Arbitration Law Review, an accredited Tribunal Secretary at the Hong Kong International Arbitration Centre (HKIAC), and an accredited General Mediator. Navin is a member of several arbitration-related committees. His notable achievements include his contributions to several publications on the United Nations Convention on Contracts for the International Sale of Goods (CISG) and Alternative Dispute Resolution. He earned his Doctor of Juridical Science (JSD) degree in International Arbitration in 2021 at the City University of Hong Kong. While pursuing his doctorate, he was appointed a Visiting Fellow and subsequently a Senior Research Associate at the University, where he also delivered several lectures. He completed his Master of Laws in Arbitration and Dispute Resolution in 2014 during which he participated in the Willem C. Vis International Commercial Arbitration Moot (“Vis Moot”) and received a moot scholarship. Since then, Navin has judged various international arbitration, international investment arbitration, international mediation, and general mooting competitions. He has also been co-coaching City University of Hong Kong’s mooting team for the Vis Moot who have secured several awards over the years, including amongst other things, best memorandum in Hong Kong, Honourable Mentions for written memoranda and Honourable Mentions for individual oralists in Hong Kong and Vienna.  In 2021, his team ranked fourth out of 147 teams in Hong Kong. Last but not the least, Navin became a part-time stay-at-home dad when he became a father of twin daughters in the year 2015.