Effectiveness and the Arbitrator's Initiative - Chapter 3 - The Arbitrator's Initiative: When, Why and How Should It Be Used? - ASA Special Series No. 45
There is unanimity that proper case management is material for the effectiveness of the arbitration process. There seems to be a similar consensus on the fact that over the years a growing number of international arbitrations have fallen short of the parties’ expectations in this respect.
Examples of such shortcomings are abundant. According, to Constantine Partasides, for example, parties often discover late in the process that they have wasted considerable time and cost developing evidence and arguments on matters that will not affect the Tribunal’s decision and/or have failed to properly address certain points that are important to the Tribunal’s decision. He cites Yves Derains, who declared “I am sometimes shocked when I write an award that although we heard 25 witnesses, I am only referring to two, and I think, ‘why did we spend time hearing them, why did the parties bear the costs of preparing them …?’”
Remedies too appear to be ample. Two of them are particularly worth mentioning. The first one comes from Neil Kaplan, who has advocated for the introduction of an earlier hearing, the Kaplan Opening, where opening arguments would be made and initial exchanges would take place between the tribunal and the parties’ counsel and experts. It is intended to allow everyone to have a better understanding of the material points and arguments in dispute so that the ultimate evidentiary hearing can be more effective. The second was suggested by Constantine Partasides. He proposed that a systematic case review conference be held not (or not only) prior to the evidentiary hearing but (also) after the first round of substantive submissions that follows the constitution of the Tribunal, namely before the Reply and Rejoinder. It is intended to streamline all the subsequent phases of the arbitration.
There is indisputably a growing problem of ineffectiveness, which no doubt needs to be resolved in the interest of the system and its users. Yet, the two solutions proposed are not appropriate. They are certainly good and may be warranted on a case by case basis, at the appropriate time called for by the specific circumstances of each case, but not as systematic sequence to be implemented, let alone at a scientific moment set in advance, in the arbitration process.