Originally from The Dark Side of Arbitration

Like other players in international arbitration, parties’ counsel should obviously behave in such a way as to preserve the efficiency, the dignity and the integrity of the arbitral process. When they do not, I assume they have passed over to the “dark side” of arbitration, in the sense I discuss in this book.

In Part Two I will describe in detail counsel behavior which does not conform to this standard, and which can be considered disloyal, dishonest or incompetent. Instead of helping their client win the case, as counsel are supposed to do, they end up damaging it. In fact, the inappropriateness of such behavior may risk an adverse decision from the arbitral tribunal.

In other situations, counsel behavior may cause inefficiencies in the arbitration, generating additional time and a higher cost of the proceedings. This may lead to an adverse allocation by the arbitral tribunal of the costs of the arbitration.

I will discuss also some obstructive and dilatory tactics occasionally adopted by counsel, which verge on dishonesty but which, in addition, unduly increase both the time and cost of the arbitration proceedings. In this context, as well as in the context of other dilatory tactics by counsel discussed here, we must always remember that, as has been rightly observed, “justice delayed is justice denied.”