Chapter One - COUNSEL RISKING AN ADVERSE DECISION BY THE ARBITRAL TRIBUNAL - Counsel as Client’s First Enemy in Arbitration?

Author(s): 

Ugo Draetta

Page Count: 

50 pages

Media Description: 

1 PDF Download

Published: 

June, 2014

Jurisdictions: 

International

Practice Areas: 

Parties,

Responsibility of Parties,

Advocacy

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Description: 

Originally from: Counsel as Client's First Enemy in Arbitration?

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CHAPTER ONE—COUNSEL RISKING AN

ADVERSE DECISION BY THE ARBITRAL

TRIBUNAL

 

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

arbitrators.

 

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.