Controlling Time and Costs in Arbitration - Chapter 6

Author(s):

Christopher Newmark

Page Count:

16 pages

Media Description:

PDF from "The Leading Arbitrators' Guide to International Arbitration - 2nd Edition"

Published:

March, 2008

Jurisdictions:

International

Practice Areas:

Arbitrators and Arbitral Tribunals,

Author Detail:

Christopher Newmark is a Partner at Spenser Underhill Newmark LLP in London. Before forming the firm in February 2007, he was a Partner at the London office Baker & McKenzie, where he was the Chair of the firm’s European Dispute Resolution Group. He has received LCIA, ICC and CEDR appointments as arbitrator. He was appointed Vice-Chairman of the ICC Commission on Arbitration in January 2008 and was Co-Chair of the recent ICC Commission task force on reducing time and cost in complex commercial arbitrations. He sits on the board of directors of the International Institute for Conflict Prevention and Management (CPR) and is a Senior Visiting Lecturer at the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London.

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Description:

Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

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I. INTRODUCTION

During 2007, the ICC Commission on Arbitration published a report entitled “Techniques for Controlling Time and Costs in Arbitration”. I was a co-chairman of the ICC Commission task force that produced the report and I have therefore had cause to reflect at some length on the topic of efficiency in the conduct of arbitration proceedings. I say efficiency, because that is what controlling time and cost is really about.

Although achieving results quickly and at minimum cost is a fairly universal objective for any modern business, it is wrong to assume that efficiency in arbitration proceedings is what parties want most. Since the ICC report was published, a number of arbitrators have taken to handing it to counsel for the parties at the outset of the proceedings to help them in their discussions regarding the appropriate choice of procedures for the case. The reaction of one such counsel to being handed the report was to the effect that saving time and cost was of little interest to his clients: “When clients instruct me on a new case, they do not tell me to conclude the case quickly and cheaply. They tell me to win the case”.

This is a fair reaction and no doubt reflects the priorities of most parties who are faced with a dispute which has important ramifications for their business. But it was not our intention when drafting the report to make suggestions for the conduct of arbitral proceedings which, if followed, were likely to prejudice either party’s prospects of achieving a successful outcome in the case. On the contrary, the suggestions in the report are intended to help parties, counsel and arbitrators to find ways of managing arbitral proceedings efficiently, without prejudicing any party’s right to have a fair opportunity to present its case and respond to that of its opponent.

The ICC report is available on the ICC Court of Arbitration website for those that are interested to read it and I do not propose to use this chapter to rehash its contents. Many of the recommendations in the report are practical, straightforward and uncontroversial and do not warrant extensive debate. There are also some matters, which although addressed in the report, were not developed in detail there and it is a selection of those that I will flesh out further here.