Arbitration is often touted as a quicker, more cost-effective alternative to resolving commercial disputes through litigation, and there's no reason it shouldn't be. But, just as litigation can be unpredictable and lead to unforeseen cost and delay, arbitration can be more costly and complex than anticipated. This is particularly true where counsel and arbitrators approach arbitration as though it was the same as litigation, leading to litigation-style discovery, lengthy hearings and long waits for decisions. So, how can you avoid having your arbitration take on the undesirable characteristics of litigation? Here are some practical tips.
1. Draft a good arbitration agreement.
- If an arbitration agreement is poorly drafted, the parties may waste time debating how to interpret it. They may even end up in court, asking a judge to decide whether the agreement applies to the dispute at all. (See Craig Chiasson's article on International Arbitration Best Practices in the winter 2012 edition of Dispute Resolution for a discussion of what an arbitration agreement should include.)
- You can't do much about a poorly drafted arbitration agreement once you're involved in the arbitration. The time to address it is when the relevant contract is being drafted. Get involved in that process!
- Be cautious about multi-step or tiered dispute resolution provisions, which can be used to delay arbitration.
- Although it may seem counterintuitive, avoid specifying unrealistic deadlines in the arbitration agreement. Obstructive counsel could take the position that the arbitrator has lost jurisdiction, or that the arbitration clause is no longer effective, once those time limits have expired. (And they won't likely be met anyway.)
2. Choose and use procedural rules (and specify them in the arbitration agreement).
- One of the attractions of arbitration is that parties can choose their own procedural rules for their dispute, and can even agree to modify those rules to best fit the dispute. This can avoid some of the rigidity, delay and burden of conducting cases under litigation procedures. Do not lose this opportunity!
- For arbitrations in B.C., if no arbitration rules are specified in the arbitration agreement the rules of the B.C. International Commercial Arbitration Centre apply by default.
- Most arbitration rules, including the BCICAC's rules, encourage efficiency and are intended to prevent delay tactics. Be aware of the applicable rules (especially the ones that can help you) and hold the arbitrator and the other parties to them. This could mean asking for a hearing with the arbitrator, by telephone or in person, and applying for a procedural order that the other party comply with the rules.
3. Choose counsel and an arbitrator experienced in commercial arbitration.
- Experienced arbitration counsel will be aware of the common pitfalls and able to save you expense and delay by helping you steer clear of them. Counsel and arbitrators unfamiliar with arbitration may conduct the arbitration as though it were a traditional lawsuit, and so lose the benefits of arbitration's flexible procedures.
4. Keep your case succinct and focus on your best points.
- While it can be tempting to load up your arbitration pleadings with all possible claims and defences, this is an inefficient, litigation, approach. Focusing on the claims and defences that actually have the best chance of success will be more beneficial overall. It will also reduce the numbers of documents, witness statements and expert opinions needed to establish or defend your case.
5. Have a procedural meeting with the arbitrator early on.
- Even if the procedural rules you have adopted don't require one, ask for a meeting with the arbitrator early on, and apply for a procedural order, setting out timeframes and clear procedures that will be followed from the document production stage through to the hearing.
- Hold the other parties to the procedural order.
- Cases often grow to meet the time allowed for them. Barring exceptional circumstances, strive to meet the timeframes initially set out.
6. Be wary of litigation-style document disclosure.
- A key difference between litigation and arbitration is that in arbitration you do not have to disclose to the other side all your documents relevant to the issues in dispute.
- Most arbitral rules only require that parties disclose the documents they actually want to rely on, and those that are responsive to specific requests made by the other parties.
- Conducting document disclosure in a focused way can reduce the significant costs and delays caused by litigation-style document dumps and "fishing expedition" document requests.
- When confronted with counsel and parties that favor a litigation-style approach to documents, apply to the arbitrator for an interim award reining in document disclosure.
- Adopt a set of guidelines, such as the International Bar Association's Rules on the Taking of Evidence in International Arbitration, which limits document disclosure and requires clear reasons for requesting additional categories of documents.
7. Eliminate evidentiary redundancies.
- Avoid unnecessary rounds of pleadings and other materials. Best arbitration practices usually involve minimal pleadings, and submitting all written witness statements, documents and expert opinions in one complete package.
- Obtaining the evidence of expert witnesses can be expensive and time consuming. Consider the possibilities for reducing the number of experts (and whether they're needed at all). Ask opposing counsel about retaining experts jointly or having the arbitrator appoint them. Or propose that the experts (or other witnesses) be cross examined in groups, to reduce hearing time and easily highlight conflicts in the evidence.
- Consider whether cross examination of witnesses is really necessary. It may be that cross examination is unnecessary and refraining will actually benefit your case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.