Originally from Behind the Scenes in International Arbitration

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CHAPTER TWO -- COUNSEL FOR THE PARTIES

I. THE VARIOUS WAYS IN WHICH COUNSEL CAN IRRITATE ARBITRATORS

A. Unnecessarily aggressive attitudes

There are many ways in which counsel for the parties can unnecessarily irritate the arbitrators.1

For one thing, reading the memorials filed by the respective parties’ counsel, one is often struck by the gratuitous aggressiveness of the tone. The opposing party’s arguments are, for example, presented as “desperate attempts” that are “destined to fail miserably”, while their own arguments, by contrast, are “proven beyond doubt”, if only the opponent did not “absurdly persist” in challenging them, and so on in the same vein. Bad faith or even fraud by the other party are invoked on the slightest pretext, often for no better reason than that the opponent holds a different view. Only rarely are such accusations backed by substantiating evidence of bad faith or fraud such as would satisfy the requirements of the applicable law. More than likely, these attitudes are borrowed from the everyday practice in the domestic courts of various countries, but they hardly ever have the effect of impressing arbitrators, who, on the contrary, tend to draw very different conclusions from such excesses than the ones intended, and also to remember them when the time comes to decide which party should bear the costs of the arbitration. In fact, an allegation of bad faith or fraud that is rejected is the equivalent of a claim that is dismissed for the purposes of determining a party’s degree of success in the arbitral award and, therefore, the allocation between the parties of the costs and fees of the arbitration.