Originally from World Arbitration And Mediation Review (WAMR)

Preview Page

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 I
James E. Castello, Workshop Co-Chair

Thank you so much, Rusty, for that wonderful overview.
I always come away from these conferences regretting that I did
not go to a law school where you taught. Your observations are
refreshing and also very insightful. Good morning, everyone, and
welcome to Act II. I am going to ask, since we are running a little
behind schedule, for the faculty for the first part of Scene I to
come up on stage to the center table. And I will just give a few
remarks to introduce Act II. We have now moved a little bit ahead
in time in the arbitration. Those heady early days of wine tasting
with Martin Hunter are over, and even the joys of sipping tap
water with Henri Alvarez are a distant memory.
At this point in the arbitration, the Buyer’s in-house counsel
has hunkered down to the tough job of defending her employer,
Fly-Buy Airlines, against Seller’s arbitration claim. According to
that claim, as you will recall from the scenario, the Buyer
improperly cancelled its contract to buy 12 airplanes from Seller,
not because Seller had said that the first delivery might be
somewhat delayed, but because a rival company who lost out on
the bid came back to the Buyer with a cheaper price. So Buyer
thinks that the fact that the airplane delivery was going to be
somewhat delayed is probably enough to justify canceling its
airplane order, but Buyer’s counsel is looking for possible second
defenses. And she is particularly interested in investigating a
rumor she has heard which is that Seller’s in-house counsel has
recently left his job on unhappy terms. And why is this worth
investigating? Well, it is worth investigating in her view because
in prior years Seller had been involved in at least one public case
of bribery in a foreign contract and a couple of instances of