Ethics and Subconscious Influences - World Arbitration and Mediation Review, Vol. 9 No. 4
Luke Sobota is a founding partner of Three Crowns LLP. He teaches a course on international investment arbitration and is writing a monograph on the general principles of international law. Mr. Sobota received his law degree from the University of Chicago, after which he clerked for the late Chief Justice of the US Supreme Court.
Rachael D. Kent is a partner and vice-chair of the international arbitration group of Wilmer Cutler Pickering Hale and Dorr LLP in Washington D.C. Ms. Kent represents clients in a wide variety of commercial and investment arbitration proceedings worldwide under numerous substantive and procedural governing laws. She has recently represented parties in commercial and investment disputes in the mining, energy, aerospace, pharmaceutical, construction, insurance, defense, telecommunications, and retail sectors, among others. Ms. Kent teaches International Commercial Arbitration at the Georgetown University Law Center and the Duke University School of Law, and she frequently speaks and writes on topics related to international arbitration. Ms. Kent received her JD from the Duke University School of Law.
Claus von Wobeser, Managing Partner of Von Wobeser y Sierra in Mexico City. With experience acting in over 100 arbitrations as either counsel or arbitrator under the rules of the ICC, AAA, Inter-American Commercial Arbitration Commission, NAFTA, and ICSID. He serves as arbitrator on the ICSID Panel as designee of the Chairman of the Administrative Council. Furthermore, he is Vice Chairman of the ICC International Court of Arbitration, former Co-Chair of the Arbitration Committee of the IBA and former President of the Mexican Bar Association.
Originally From World Arbitration and Mediation Review (WAMR)
Ethics and Subconscious Influences
Introduction & Moderator
Panelists: Rachael D. Kent
Claus von Wobeser
During this session, panelists will discuss the legal and ethical implications arising from a mock scenario in which counsel inadvertently copies the tribunal president on internal correspondence regarding a privileged memorandum that addresses the merits of that party’s case. Panelists will consider the scenario in light of the heuristics and biases identified earlier today, and then discuss the practical steps that arbitrators and counsel should take in response to the issues implicated.
Luke Sobota: We are going to go over a hypothetical to explore what experts call “informational blinders,” which Professor Diamond discussed a little bit today. I am delighted to have with me Rachael Kent from WilmerHale and Claus von Wobeser from von Wobeser & Sierra. What we are going to try to do is test out some of the issues that might arise from the exposure of the arbitrators to legally inadmissible evidence.
Here is the hypothetical: The president of the tribunal of the case you have heard about today is accidently copied on an email exchange between counsel and the claimant. It is clear from the text of the email that they are discussing whether or not to produce a memorandum that the manager had written during the claimant’s operations. The memorandum itself was not attached to the email. In this email, an attorney for the claimant wrote:
If the tribunal were ever to see this memorandum, I fear our damages would be close to nil. The manager appears to acknowledge various cost cutting measures, including that the clearing of virgin rainforest were needed to expedite digging. Even with measures such as this, the manager expresses doubt as to whether they could successfully complete the project on time. Thankfully, the memorandum was sent to outside counsel to obtain legal advice. I think we can therefore assert attorney-client privilege under the common law to keep it from ever seeing the light of day.
Counsel for the claimant never noticed that the president of the tribunal had been copied on the email and therefore never raised the issue. The assertion of privilege is not challenged by the respondent and the memorandum is never produced.