Chapter One - COUNSEL RISKING AN ADVERSE DECISION BY THE ARBITRAL TRIBUNAL - Counsel as Client’s First Enemy in Arbitration?
1 PDF Download
Originally from: Counsel as Client's First Enemy in Arbitration?
CHAPTER ONE—COUNSEL RISKING AN
ADVERSE DECISION BY THE ARBITRAL
In this Chapter I will discuss certain counsel’s behaviors
which can be considered as disloyal, dishonest or incompetent. I
will start, however, mentioning an approach, occasionally adopted
by counsel as part of their advocacy tactics and which, though not
squarely falling into these three categories, is equally dangerous
for counsel to take: the “all-or-nothing” approach (Section I).
Then, I will discuss other behaviors by counsel that are simply
disloyal or dishonest towards the arbitrators (Section II), or
incompetent or unprofessional in general terms (Section III).
I. THE “ALL-OR-NOTHING” APPROACH
Parties’ counsel occasionally tend to adopt an “all-or-nothing”
approach in their prayers for relief with respect to the
entitlement to their claims (A), to the arguments put forward to
defend themselves against claimant’s claims (B), or to the amount
of damages claimed (C).
Probably they act in this way because they think that to put it
to the arbitrators, even in an alternative or subordinate way, that
they may not be entitled to all of the claims they put forward, or
that their only defense arguments may fail or that the amounts
claimed as damages might possibly be adjusted downwards should
the arbitrators find reasons to do so, equates to showing a sign of
weakness of their arguments in the eyes of the opponent or the
As a consequence, they fail to develop in their submissions
alternative or subordinate positions, adequately documenting and
justifying them, which could offer the arbitrators a road map for
accepting such alternative or subordinate positions should they find
that the arguments and documents provided warrant a decision
resulting in rejecting the entitlement to some—but not all—of the
claims put forward, or in rejecting the only defense arguments put
forward by the respondent, or in accepting only part of the amounts
claimed as damages.