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Vol 21 No 11 Nov/Dec 2016

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Counsel as Client’s First Enemy in Arbitration?

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ISBN13: 9781937518462
Published: July 2014
Publisher: Juris Publishing
Country of Publication: USA
Format: Hardback
Price: £55.00



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Counsel as Client’s First Enemy in Arbitration? is not meant to express any general criticism as to the way counsel behaves in international arbitrations.

This not a legal book, nor a book dealing with the “ethics” of the arbitration process. This book is about cases where counsel occasionally abuse or misuse their right to defend their clients in international arbitrations, with potential adverse effects on the latter. This is a subject on which with some notable exception, not much has been said. By contrast, literature abounds about the duty of the arbitrators and the consequences for them if they do not observe such duties.

In sum, this book is aimed at discussing, in the most pragmatic way, certain behaviors by counsel occasionally encountered in international arbitration practice that the author considers pathological, not physiological. The discussion is supported by real life anecdotes, appropriately redacted and sanitized. Given the author's years of experience and wealth of knowledge, this publication is a valuable resource to anyone that is serious about arbitration.

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Subjects:
Arbitration and Dispute Resolution
Contents:
ABOUT THE AUTHOR

INTRODUCTION
WHY THIS BOOK, AND FOR WHOM IT IS INTENDED?

CHAPTER ONE
COUNSEL RISKING AN ADVERSE DECISION BY THE ARBITRAL TRIBUNAL

I. The "All-or-Nothing" Approach
A. “All-or-nothing” approach with respect to the entitlement to multiple claims
B. “All-or-nothing” approach in the defense against claims
C. “All-or-nothing” approach with respect to the quantum of the claims

II. Disloyal or Dishonest Behavior by Counsel towards Arbitrators
A. Ex-parte communications and other impermissible attitudes towards the arbitrators
B. Providing false information to the arbitrators

III. Incompetent or Unprofessional Behavior by Counsel
A. Ignorance by counsel of substantive or procedural legal aspects
B. Inability to properly conduct cross-examinations of witnesses
C. Unprofessional behavior by counsel at the hearings
D. Lack of preparedness by counsel in written or oral advocacy
E. Unnecessarily long submissions filed
F. Excessive amounts of documents produced

CHAPTER TWO
COUNSEL CAUSING INEFFICIENCIES IN THE ARBITRATION PROCEEDINGS

I. Improper or Inefficient Handling by Counsel of the Document Production and Redfern Schedule Processes
A. Assessing the need for document production in arbitration
B. Abuses or misuses of the document production and Redfern Schedule processes

II. What Arbitrators Can Do to Secure an Efficient Document Production Process When Faced With Improper Behavior by Counsel
A. Not contemplating a document production or a Redfern Schedule process at all
B. Being aware of the pitfalls of the provisions of the IBA Rules on document production
C. Reigning in the abuse or misuse by counsel of the document production and Redfern Schedule processes

III. Obstructive or Dilatory Tactics by Counsel
A. Frivolous challenges to arbitrators’ appointments
B. Frivolous objections or requests of a procedural Nature
C. Counsel agreeing on lengthy terms for their submissions

IV. Other Improper Behaviors by Counsel
A. Accepting improper appointments as a replacement or new counsel (the Slovenia case)
B. Unnecessary aggressive attitudes in counsel’s Advocacy
C. Unsolicited submissions and “the arbitration by correspondence”
D. Submitting inflated claims
E. Inability or unwillingness to catch settlement opportunities

CHAPTER THREE
CURING COUNSEL’S IMPROPER BEHAVIORS IN INTERNATIONAL ARBITRATION
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I. The Role of Counsel’s Deontological (Ethical) Rules in International Arbitration
II. Remedies Available to Arbitrators

CONCLUSION
THE EFFECTIVE LOYAL AND HONEST COUNSEL’S ROLE