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Counsel as Client’s First Enemy in Arbitration?

Counsel as Client’s First Enemy in Arbitration?

作者： Ugo Draetta
出版商： Juris Publishing
ISBN: 9781937518462
出版时间 June 2014
规格： Paperback , 138 pages
适应领域： International ? 免责申明：
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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.
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

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
Ugo Draetta is Professor of International Law at the Catholic University of Milan, Italy. He received his PhD in International Law (1968) and graduated from the Academy of American and International Law, at the International and Comparative Law Center, University of Texas at Dallas (1976). In 2005 he taught courses at The Hague Academy of International Law.

During his professional experience he has held the position of Vice-President and Senior Counsel—International, of General Electric Co., USA (1987-1999). He is a member of the Board of Directors of major Italian companies.

From 2000 he started his independent arbitration practice. He has been involved in about 60 arbitration proceedings (ICC, UNCITRAL, Milan, Vienna, Dubai and Madrid international arbitration chambers, ad hocarbitrations) as President, sole arbitrator or co-arbitrator. His areas of expertise include international law; lex mercatoria; EU law; antitrust law; conflicts of laws and procedure; intellectual property law; construction

contracts; agreements for the sale of goods; merger and acquisition agreements; shareholders’ and joint venture agreements; R&D agreements; distribution agreements; State contracts; investment projects.

Ugo Draetta is member of the ICC Institute of World Business Law, the Club of Arbitrators of the Milan Arbitration Chamber, the Scientific Committee of the Italian Arbitration Association (AIA), is listed as Arbitrator with the Vienna International Arbitration Center (VIAC) and the Dubai International Arbitration Center (DIAC), is honorary member and member of the General Council of AIGI (Italian Association of Company Counsels) and member of the ICC Working Group on In-House Counsel.

He is co-founder and co-editor of the review “Diritto del Commercio Internazionale” as well as member of the Board of editors of the Revue de droit des affaires internationales/ International Business Law Journal, published by Sweet & Maxwell and Corporate Counsel Advisory Editor of the European International Arbitration Review, published by JurisNet.

He is author of many publications in the fields of arbitration, international law, industrial law, international trade law, EU law, including the book Behind the Scenes in International Arbitration, JurisNet, Huntington, New York, 2011.
"Ugo Draetta has an immense advantage over all other actors in arbitration: he has played every role. This makes it possible for him to know what happens on stage as well as behind the scenes. To see before even entering the theater; this is the essence of the difficult relationship between a lawyer and his client. Ugo Draetta has become a master in presenting these challenging relations with clarity, psychological insight and finesse."
--Professor Pierre Tercier, Arbitrator, former Chairman of the International Court of Arbitration of the ICC

"With his dual experience of arbitrator and in-house lawyer, Ugo Draetta provides to counsel in arbitration a guide of all the errors to avoid. Instead of a desiccated code of conduct, the reader enjoys a colorful and lively series of anecdotes with a tremendous educative power comparable to that of the medieval stories. Clients should require evidence that counsel have read this book before hiring them"
--Yves Derains, Derains & Gharavi, Paris, Former Secretary General of the ICC Court of Arbitration, Chairman of the ICC Institute of World Business Law

"The new book by Ugo Draetta exudes the wisdom he has accumulated in his experience as an arbitrator. His lesson of moderation, prudence and honesty should be reflected upon by all counsel concerned with efficiency"
--Pierre Mayer, Partner, Dechert, Paris, Emeritus Professor of the University of Paris 1, President of the Arbitration Academy

"Any person contemplating to be a party to or otherwise participate in arbitration was waiting for this book. How was it possible to entrust the resolution of a dispute to a professional (or interact as an arbitrator, or opposing attorney, with that professional) without having sufficient insight in the role, the benefits and, even more importantly, the potential damage an outside counsel can bring to a case and its resolution? Prof. Draetta's book is the first to address the issue of outside counsel as the possible worst enemy of his client and is compulsory reading: the thorough description of the pathology, the counsel carefully to avoid, leads to reflections on the remedy, namely counsel who shall be efficient and adequate for a given arbitration. Better still, Draetta remains true to himself: drawing from his considerable experience, he uses inductive reasoning and starts off from anecdotes, often funny, to base his comments and buttress the remedies he suggests. The result is a book whose irony and humor seize the reader from the first page and whose teachings will hardly release him before the very last phrase ('I will feel having accomplished my task'). Yes, Professor Draetta, you have."
--Laurent Lévy, Partner and Arbitrator, Levy Kaufmann-Kohler, Geneva; Vice President, ICC Court of Arbitration

"If it is true that most counsel do an excellent job in defending their clients, it is also correct that they may also damage their client's case by their aggressive or uncooperative attitude or by inundating the tribunal with unnecessary submissions, documents or witness statements. Arbitrators are aware of that but it is the first time that one of them decides to write a book on the topic and describes in detail all the conducts of counsel that may negatively affect their case: a very courageous and useful initiative. Let us hope that the message will be heard."
--Bernard Hanotiau, Partner and Arbitrator, Hanotiau & van den Berg, Brussels; Member of the ICCA Council

"There are many ways in which arbitrations may be disrupted by the parties and/or their attorneys. Abuse of rights to request document production, a strategy often employed in ways not in the best interest of the client, is one of the maneuvers accounted in the book. It provides useful guidance and advice to parties in this connection."
--Professor J. Martin Hunter, Barrister Essex Court Chambers, Chartered Arbitrator

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