Originally from World Arbitration And Mediation Review (WAMR)

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20th Annual ITA Workshop

Confronting Ethical Issues in International Arbitration
June 18, 2009

ACT II

ACT II – THE ARBITRATION: ETHICAL ISSUES IN
PRESENTING THE CASE
INTRODUCTION TO ACT II, SCENE II
James Castello

JAMES CASTELLO: The research that has been done by Buyer’s
legal team and, we can assume, some corresponding legal
research from Seller’s team, have resulted in dueling requests for
the production of specific documents submitted to the tribunal by
Buyer and Seller. That is the background for our next scene. You
will see that the earlier discussion with Martin Hunter about a
likely chair of the tribunal was a very successful foreshadowing of
events, and we do indeed have his good friend, Charles Brower, as
the chairman. But we have ended up with other arbitrators on
either side of him, Lucy Reed and Ahmed El-Kosheri.
ACT II – SCENE II – HEARING ON DOCUMENT DISCLOSURE REQUESTS
CHARLES BROWER: We all ready? Good morning and welcome to
this hearing on document production requests, always an exciting
exercise, that have been submitted by each of the parties to these
proceedings. I am Judge Charles Brower. Sharing this tribunal on
my right is Professor El-Kosheri, who was appointed by the Seller.
And on my left is Ms. Lucy Reed, who was appointed by the Buyer.
We have before us today Seller’s request that Buyer turn over an
internal memorandum drafted by an in-house counsel discussing
Buyer’s decision to cancel the sales agreement with Seller and
instead to purchase aircraft from Rival. We also have before us the
request of Seller made by the Buyer to turn over an internal
memorandum allegedly drafted by a former in-house counsel for
Seller, dated September 6, 2008. It is alleged to concern the legality
of a consulting agreement between Seller and someone described
by the Buyer as a former business partner of Buyerland’s Minister
of Transportation. The tribunal will hear first from counsel for
Seller, Dominique Brown-Berset, and then from counsel for Buyer