Chapter Nineteen: International Arbitration (Conduct of Proceedings) - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor in Chief James M. Gaitis is a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar, who, since 1990, has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
A Fellow of the College of Commercial Arbitrators (2004–present) and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators (2003–present), Mr. Gaitis is a frequently invited speaker and lecturer, has testified in district court proceedings as an expert on arbitrator disclosures and ethics, and is the author of numerous articles relating to arbitration law, several of which have been cited repeatedly to the United States Supreme Court, various federal district courts and federal courts of appeal, and various other courts, such as the Supreme Courts of Texas and Puerto Rico. In 2006, 2010, and 2013, he respectively served first as an Editor and then repeatedly as Editor in Chief of the first, second, and third editions of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration. He also is the Editor of, and a contributing author to, The Leading Practitioners’ Guide to International Oil & Gas Arbitration (Juris 2015) and serves on the Board of Editors of the Journal of World Energy Law & Business (OUP/AIPN). He is a graduate of the University of Notre Dame (BA 1976) and the University of Iowa College of Law (JD 1978), where he served as a Note & Comment Editor on The Iowa Law Review.
Gerald Aksen, New York, New York
Axel Baum, Paris, France
Robert B. Davidson, New York, New York
Sally Harpole, San Francisco, California
Richard H. Kreindler, Frankfort, Germany
Urs M. Laeuchli, San Francisco, California
Lawrence W. Newman, New York, New York
Philip D. O’Neill, New York, New York
Elliot E. Polebaum, Washington, DC
Lucy F. Reed, New York, New York
I. PRELIMINARY MEETINGS/CASE MANAGEMENT CONFERENCES
International arbitrators should arrange a preliminary meeting or case management conference with counsel for the purpose of organizing the arbitration proceedings.
In international arbitrations, a preliminary meeting or case management conference between the arbitrators and counsel for the parties, by whatever means makes commercial sense, is particularly desirable to identify and resolve the often divergent procedural expectations of parties from different cultures and legal systems. Indeed, the efficiencies to be realized by such a meeting or conference are well recognized. For example, the ICC Rules require that such a conference be convened when the tribunal is “drawing up the Terms of Reference or as soon as possible thereafter.” ICC Rules, Art. 24.1. See also ICC Rules, App. IV (setting forth “case management techniques” to be considered at the case management conference and throughout the proceeding). For the sake of convenience, the use of the phrase preliminary meeting in this chapter is meant to encompass the term case management conference.
A preliminary meeting may facilitate agreement or at least understanding of key procedural steps, such as possible bifurcation of issues, document production, the use of experts, the overall sequence of pleadings and taking of evidence (e.g., burden of proof), and other matters with which the parties either may not be familiar or like minded. Such a meeting, oftentimes in person, also may allow the parties and arbitrators to establish personal contact, identify key issues, and agree on procedures and a timetable (to be incorporated in a procedural order) and sometimes may provide an opportunity for the parties to consider mediation or other means of settlement. In other words, a preliminary meeting affords the tribunal an opportunity to implement procedural measures designed to ensure the types of cost efficiencies that arbitral institutions and arbitrators are both expected to achieve. Guidelines for accomplishing that objective, such as those found in Appendix IV to the ICC Rules, the JAMS Efficiency Guidelines for the Prehearing Phase of International Arbitrations, the UNCITRAL Notes on Organizing Arbitral Proceedings (2016), and elsewhere, now proliferate and should be exploited by international arbitrators, preferably as early as the initial preliminary meeting.