Here a few examples of the procedural steps on which I am happy to help behind the scenes or as a co-counsel of record :
DRAFTING THE REQUEST FOR ARBITRATION
Preparing a request for arbitration is very different from a writ of summons before national courts and many strategic options must be considered at this early stage. Notably, the early identification of all the relevant parties to the proceedings is crucial, as one may not join a new party, or join itself, to ongoing arbitral proceedings, as it can be done in French or other court proceedings. No new party may be joined to the proceedings after the constitution of the arbitral tribunal, except with all parties and the arbitral tribunal’s consent.
Whether you are looking for in depth strategic advice or a simple review of your draft communications and procedural documents, I can help you set the process on the right path, and help you anticipate the various strategic decisions and opportunities to be considered/created. These include, in particular, how to achieve the constitution of an arbitral tribunal well-suited for the matter, and most likely to understand and side with your client’s position.
ARBITRAL TRIBUNAL CONSTITUTION
It is well-know that arbitration is only as good as the arbitrators. A good arbitral tribunal, well suited to the dispute, is the only guarantee of a smooth and efficient arbitration, resulting in a well-reasoned, enforceable arbitral award. In order to obtain the constitution of an arbitral tribunal well-suited for the dispute, it is necessary to have good knowledge of the pool of arbitrators, and the workings of any arbitral institution involved in the process. Having served of secretary to numerous arbitral tribunals and worked at an arbitral institution, I have had the privileged of seeing up close the performance of a very large number of arbitrators in hearings, deliberations and award-drafting. This enables me to provide the best advice in respect of the constitution of arbitral tribunals (who to appoint as co-arbitrator, how to influence the appointment of a certain profile as chair, etc.). I can also advise on how to maximise the chances of obtaining a suitable appointment from an arbitral institution (or any third party in charge of making the appointment).
TERMS OF REFERENCE NEGOTIATION
Terms of reference are a contract between the parties to the proceedings and the arbitrator(s), which many arbitration rules require to be established at the outset of the arbitration. Terms of reference summarise the parameters of the case, the arbitrators’ mandate, and are signed by the parties and the arbitrator(s). In practice, even if the applicable rules of arbitration do not require their establishment, most arbitral tribunals will invite the parties to enter into an equivalent document. It is important to understand the long term implications of the terms proposed by the arbitrators to avoid an inadvertent waiver of certain rights or limitation of procedural options, or conversely, opening the flood gates to procedural complications. Terms of reference are also an opportunity to gain certain rights, and anticipate issues which may arise later in the arbitration, etc. Finally, certain terms are “market practice”, and some are not. Only an experienced practitioner is able to advise on whether or not the terms under discussion are appropriate for the case. I have extensive experience in drafting and negotiating terms of reference with opposing counsel and arbitrators and can provide one-off assistance in that respect.