The Importance of the choice of Arbitrators and Counsel in international Arbitration: Techniques, Obligations and Procedural Strategies – Aya Helouani

The Importance of the choice of Arbitrators and Counsel in international Arbitration: Techniques, Obligations and Procedural Strategies

 

L’importance du choix des arbitres et des conseils dans l’arbitrage international : Techniques, Obligations et Stratégies Procédurales

By : Aya Helouani : Master’s student in International Business Law at the International University of Casablanca

ABSTRACT :

The choice of arbitrators and counsel is essential in arbitration. Arbitrators must be competent and impartial, capable of guaranteeing fair and efficient proceedings. They may be appointed by the parties or by an institution, but must disclose any conflict of interest.

In the other hand counsel, who is responsible for defending the interests of the parties, must be familiar with arbitration law and understand the sector concerned.

Proper selection of arbitrators and counsel ensures that the parties’ rights are protected and that their arguments are effectively defended.

Keywords : Choice of counsel, roles of arbitrators, impartiality, independence, international chamber of commerce  (ICC)

RESUME :

Le choix des arbitres et du conseil est essentiel en arbitrage. Les arbitres doivent être compétents et impartiaux, capables de garantir une procédure juste et efficace. Ils peuvent être désignés par les parties ou par une institution, mais doivent divulguer tout conflit d’intérêt.

Dautre part le conseil, chargé de défendre les intérêts des parties, doit maîtriser le droit de l’arbitrage et comprendre le secteur concerné.

Une bonne sélection des arbitres et du conseil assure la protection des droits des parties et une défense efficace de leurs arguments.

Mots-clés : Choix du conseil, rôle des arbitres, impartialité, indépendance, chambre de commerce internationale  (CCI)

Introduction :

When drafting the arbitration clause, it is imperative to consider the composition of the arbitral tribunal and possibly to decide whether to appoint a sole arbitrator or three arbitrators, or at least to determine how they are to be appointed. Although not mandatory, this formal requirement is essential to the validity of the clause. In general, a sole arbitrator is chosen for simpler and/or less significant disputes. The difficulty, however, lies in the fact that it is difficult to foresee the nature and extent of future disputes at the drafting stage. This is why, in practice, particularly in institutional standard clauses, it is common to find a reference to a tribunal “made up of one or three members”, the number of which will ultimately be determined (by the center or supporting judge) once the dispute has arisen, depending on the amount and complexity of the dispute[1].

However, although the parties are free to define the criteria for the selection of their arbitrator, they must respect two essential qualities: independence and impartiality. These qualities are claimed by every democratic state, but their definition remains complex[2].

The various legal systems do not offer precise definitions of these notions, but their general characteristics can be identified. Despite their vagueness and the possibility of confusion between them[3], these notions are distinguished on several points, and need to be described in order to be better understood (I)  .

In the other hand , it is common practice for parties to international commercial arbitration to be represented by one or more representatives, who may be barristers or solicitors, where permitted. Often, the seat of arbitration is in a country where none of the parties’ representatives is registered. This raises questions about the ethical rules applicable to the parties’ representatives, the competent authority in the event of a breach, and whether arbitral tribunals have the legitimate power to sanction the parties’ representatives (II )

1. The importance of choosing the right judges :

Arbitration has become one of the main mechanisms for resolving disputes, particularly in international trade[4] “the arbitrator has become the exclusive, even natural, judge of international trade”[5]. In other words, as Maître Marc Henry has pointed out, “the arbitrator is elevated, for the duration of a dispute, to the rank of judge”[6] “The independence of the Arbitrator at the Heart of Fairness and Utility”. The key question at the start of every arbitration is: which arbitrator to choose?

There’s a saying that goes: “as good as the arbitrator, so good is the arbitration”. The choice of arbitrator and the qualities required of him or her are crucial to the outcome of the dispute, and it is on the arbitrator that the parties’ attention and hopes are focus[7].

We shall first examine the techniques for appointing an arbitrator (a), followed by the arbitrator’s obligations (b).

1. As for designation techniques :

This section focuses on three issues: the number of arbitrators, appointment by the parties and appointment by arbitral institutions. We will treat the number of arbitrators (1-a), appointment by the parties (2-a) and appointment by the arbitral institutions ( 3-a).

1-a) Number of arbitrators :

A certain tradition – often referred to as European – often proposes a three-arbitrator arbitration, with two co-arbitrators appointed by the parties and an arbitrator acting as chairman of the arbitral tribunal, generally proposed by the arbitrators, subject to the intervention of an arbitration center or supporting judge. Another approach – sometimes said to be of American origin – favours a single-arbitrator arbitration, due to an almost objective distrust of party-appointed arbitrators, and aims to avoid the “partisan arbitrator”, whom the obligation to disclose aims, on the contrary, to banish, under the responsibility of the parties and the arbitrators’ ethics.

Indeed , sole arbitrators  tend to resolve disputes more efficiently, although this is not always the case. Three arbitrators must discuss each decision with each other, coordinate their agendas, and consult with each other throughout the arbitration process, particularly when drafting procedural orders and the final award. Sole arbitrators, on the other hand, can easily streamline the process on their own and concentrate solely on drafting the decision without having to consult the other members. Statistics also confirm that sole arbitrators generally deliver their awards in less time than a three-member tribunal, even if the difference is not that important [8].

The nomination of a sole arbitrator can have certain disadvantages, however. In some cases, a three-member tribunal is considered a safer option, particularly in complex cases where the amount in dispute is significant[9].

Firstly, having three arbitrators in theory reduces the risk of making bad decisions and decreases errors and mistakes. Arbitrators are human and not infallible. The more complex a case, the greater the risk of error. Having six pairs of eyes instead of two, and a thorough examination of the award, ideally by all three members, naturally reduces the risk of errors. Considering that there is normally no possibility of appeal, this is even more important in international arbitration than in litigation. Reducing errors is also important to avoid problems of enforcement and/or annulment at post-arbitration stages[10].

Secondly, three arbitrators naturally engage in discussions, offer different perspectives, and assist each other in their understanding of complex issues, which can be beneficial for more complex disputes. There is also an advantage in appointing three members with diverse legal and cultural backgrounds and/or experience in specific industries and sectors. It can also be useful to have tribunal members who speak a specific language and have specialized knowledge of a certain legal system[11].

2-a) Appointment by the parties :

While the parties are generally free to appoint their own arbitrators, difficulties may arise in the appointment process, and either state courts or arbitration centers may be called upon to intervene. The parties’ freedom to appoint their own arbitrators is enshrined in state law, treaty law and arbitration rules. However, the parties’ freedom of choice is not unlimited; it is limited either by national law or by arbitration practice[12].

In fact, the appointment of arbitrators by the parties is the normal mode of appointment, whether it be the expression of the parties’ will at the time when the dispute arises, with one party then being led to appoint an arbitrator, or by means of arbitration rules, subject to appointment by the supporting judge or an arbitration institution, under various conditions and not only as a rescue solution[13]. However, it is possible because of the agreement of the parties, in so far as it is the agreement of the parties that forms the basis of the arbitrators’ mission and the jurisdictional power they are then granted , If, for example, the arbitration agreement provides for the appointment of an arbitrator by each of the parties, it does not follow that each of these arbitrators is actually appointed as a result of the unilateral expression of will by one party; the appointment is in fact only effective as a result of the acceptance of this arbitrator by the other parties, most often when the constitution of the arbitral tribunal is finalized, whatever the technique used[14]. It may also involve the prior selection of potential arbitrators from a list agreed between the parties in the arbitration agreement[15]. In practice, whether the arbitration is institutional or ad hoc, the arbitrators are appointed by the parties in the vast majority of cases.

It is important to note that once an arbitrator is appointed, he or she leaves behind his or her original profession, retaining only his or her expertise, know-how and knowledge, as well as the skills needed to serve the arbitral tribunal. However, the status of arbitrator entails its own conditions, obligations and requirement[16].

From another point of view, time is of the essence, and it is possible for a party to overestimate an argument or line of reasoning, or even contradict itself, without realizing it, in submissions drafted several weeks or months apart. The practice of appointing a shadow arbitrator[17], or even a “shadow arbitral tribunal” by a party, made up of experienced arbitrators, can help to place this party in a situation close to reality. This implies presenting these writings – those of the party appointing him and those of his opponent – and possibly presenting them orally to test their effectiveness, coherence or intelligibility.

3-a) Appointment by the arbitral institutions :

An arbitration institution, whose rules are incorporated by reference into the arbitration agreement, is responsible for implementing these rules, particularly as regards the appointment of arbitrators. This institution thus assists the parties in implementing the arbitration clause, in a similar way to the supporting judge in ad hoc arbitration, although the latter may also be called upon in the event of the arbitration institution’s failure to act. The involvement of an arbitration institution therefore does not fundamentally alter the role of the parties in appointing arbitrators. The institution, through its rules, simply provides assistance when the parties have provided for a method of appointment in the arbitration agreement, but are faced with a blockage or difficulty.

It is common for arbitration centers to have “lists of arbitrators”, which are often substantial and made up of arbitrators selected according to criteria of competence defined by the institution itself[18]. This makes it possible to provide competent arbitrators for parties unfamiliar with arbitration, but also to draw on this list to choose an arbitrator in place of the parties, in accordance with the terms of the arbitration rules. The aim is to guarantee respect for the arbitrator’s independence and impartiality, assuming that the institution at the heart of the arbitration mechanism is best placed to assess this consistency in addition to the parties.

For example, the ICC Rules of Arbitration (2021) stipulate in “article 13.1 ” that, “ when appointing or confirming an arbitrator, the court shall take into account the nationality, place of residence and any connection with the countries of the parties and of the other arbitrators ”. Furthermore, “ article 1.5” specifies that “the sole arbitrator or the president of the arbitral tribunal must be of a different nationality from that of the parties, except in special circumstances or where the parties are opposed ”. This “principle of neutrality”[19] is intended to ensure that the sole arbitrator or president is not of the same nationality as the parties, although this criterion may be debated, particularly when knowledge of a party’s national law, chosen as the applicable law, is important for resolving the dispute[20].

1. The arbitrator’s obligations :

It is common to distinguish between the two concepts[21]. Independence is conceived as “ a legal or factual situation that can be objectively assessed ‘, whereas impartiality ’ is a disposition of the mind, a psychological state that is subjective by nature ”[22]. Lack of independence and lack of impartiality should therefore not be assessed in the same way, or at the same time. On the other hand, the penalties for these two situations are identical. Thus, Article 12-2 of the UNCITRAL Model Law provides that an arbitrator may be challenged “ if circumstances exist which give rise to justifiable doubts as to his impartiality or independence ”.

In reality, the two concepts, although intellectually distinguishable, are treated in the same way by positive law[23].

We will first discuss the obligation of independence (1-b) and then the obligation of impartiality (2-b).

1-b) The obligation of independence :

Content of the concept in French law ; the debate focuses on situations where it is necessary to determine that the arbitrator lacks independence. In French law, case law initially referred to the grounds for challenge specifically provided for state judges by “ article 341 ” of the Code of Civil Procedure (CPC). However, the Cour de cassation changed its position with a ruling by the First Civil Chamber on April 28, 1998[24], stipulating that “ article 41 ‘ CPC ’does not necessarily exhaust the requirement of impartiality required of any jurisdiction ”. This means that the arbitrator could be deemed dependent on one of the parties for reasons not covered by this article[25].

The broadening of the grounds for challenging[26] an arbitrator can only be welcomed. Unlike magistrates, arbitrators can lose their independence in specific situations that magistrates are not confronted with: business relationships, consultancy assignments with one of the parties or the party’s lawyer; the development of commercial relationships between the arbitrator and one of the parties or that party’s lawyer, due to the accumulation of remuneration received for regular arbitration or consultancy assignments; links between one of the parties and the firm where the arbitrator works, regardless of the arbitrator’s function (partner, associate, of counsel). There are numerous situations in which an arbitrator may not be independent, and these have evolved over time in response to the abuses observed in arbitration practice[27].

Moreover, the assessment of the arbitrator’s independence is distinct from that of the state judge. “ Article 341” of the French Code of Civil Procedure provides for the judge to be disqualified in the event of a personal interest in the dispute, a claim or debt owed to one of the parties, family or advisory ties, or subordination. Initially, case law applied these criteria for disqualification to the arbitrator, but in a significant decision in 1999, it extended this assessment more broadly, independently of that applicable to the state judge[28].

Links of interest, which take several forms: we develop two links

Existence of a relationship of subordination between the arbitrator and one of the parties; the first is the existence of an employment contract between one of the parties and the arbitrator. This contract may exist at the time of the arbitration or be concurrent with the award. Thus, is not independent the arbitrator paid by a party as usual counsel[29] , or by a company dependent on the group to which one of the parties belonged , or as an accountant of one of the parties[30] , or as the accountant of one of the parties[31] or the accountant who is hired by a party on the day following the award[32].

The existence of common interests between the arbitrator and one of the parties is a classic case that calls into question the independence of the arbitrator, especially when those interests are related to the case in dispute. For example, this may occur where the arbitrator presided over a company involved as an intermediary in the disputed sale[33], or where the arbitrator was the legal director of a company belonging to the same group as one of the parties. However, the independence of the arbitrator may also be called into question even if these common interests are not related to the case at issue. In the Jean Lyon case, one of the parties was a debtor of a company in which one of the arbitrators was employed. The Court of Appeal[34] held that this fact “was objectively liable to induce the arbitrator to adopt a position consistent with the interests of the subsidiary which employed him.

2-b) The obligation of impartiality :

The impartiality of the arbitrator is a question of character: in a “pure” conception that is not that adopted by the law of arbitration, an impartial arbitrator is one who resists the temptations of partiality. It is based solely on the quality of the arguments presented by the parties, without concern for past or future interests, or sympathies or antipathies towards a party or its counsel. Similarly, an impartial arbitrator is one who, regardless of his personal feelings towards the parties, remains neutral towards the dispute itself. However, bias may manifest itself in the conduct of the arbitrator or in his words to the parties, creating a sense of unease or suspicion in one or both parties. In addition to its close connection with the requirement of independence, impartiality can be confused with neutrality and objectivity. In any event, the “lack of impartiality” must be based on precise and verifiable facts capable of giving rise to a reasonable doubt as to that impartiality[35].

Taking into account the arbitrator’s conduct during the proceedings, can the arbitrator’s bias be inferred from his conduct during the proceedings? The problem arises when the arbitrator, without violating the rights of the defense, displays hostile behavior towards one of the parties. Can this conduct justify the challenge of the arbitrator or even the invalidity of the award? In Industrial Import[36] , the arbitrator’s impartiality had been called into question because of his “open hostility towards one of the parties.” This allegation was supported by facts not disputed by the French judge, who however decided “that they were not such as to legitimately cast doubt on the independence of the arbitrator since they were explained only by the delaying attitude of the complainant.” The judgment does not reject a priori the hypothesis of an objection on this ground, but the assessment of the arbitrator’s partiality is conceived restrictively[37].

Acceptance of “non-neutral” arbitrators: In the United States, some arbitration rules allow arbitrators chosen unilaterally by the parties not to be neutral. The “non-neutral” arbitrator then escapes any challenge procedure[38].He can meet the party who appointed him and be “predisposed” in his favor, while remaining honest, loyal and in good faith. The practice of non-neutral arbitrators has been accepted by United States courts on the basis of the will of the parties. This conception of arbitration, in which the president of the arbitral tribunal is the sole independent arbitrator, no longer corresponds to the current image of the arbitrator given by the instruments of the law of international arbitration. Moreover, the AAA[39], in its regulation of 1 April 1997, no longer tolerates the practice of the non-neutral arbitrator in international arbitrations[40].

1. The importance of choosing counsel :

According to Matthieu de Boissésson, the choice of counsel in arbitration proceedings is important for several reasons:

Expertise and specialization: A board specializing in arbitration has a thorough knowledge of the rules and practices specific to this field. This expertise can make a difference in defending the interests of your client and finding effective solutions.

Strategy and representation: The board is responsible for developing a defense strategy adapted to the specificities of arbitration. Its choice may influence the manner in which the dispute is presented and defended before the arbitral tribunal, which may have a direct impact on the outcome of the dispute.

Compliance with procedural rules: The choice of experienced counsel ensures better compliance with the rules of arbitral procedure, which is essential to ensure a fair conduct of the proceedings and to avoid any risk of nullity or irregularity.

The selection of counsel in arbitration proceedings is crucial to ensure effective, strategic and procedural representation. A competent and specialized counsel can play a decisive role in the outcome of the dispute and in the protection of his client’s interests[41].

We will treat in a first part  the role of the council in controlling time and costs (a) and in a second part  the representation of the parties by the council (b).

1. The role of counsel in controlling time and costs of proceedings :

The role of counsel in controlling the time and costs of the arbitration proceedings is essential to ensure efficient and economical management of the dispute. The board can contribute to this crucial aspect of the procedure by managing the schedule, optimizing resources, negotiating fees, controlling expenses.

We will first establish an analysis grid of the question (1-a) , to then study the different solutions proposed (2-b) .

1-a ) An analysis grid of the question :

As perfectly  described by Michael O’Reilly, “The subject of fees is hardly prestigious… While this is the last thing to deal with in an arbitration, it is usually the first thing the client thinks about. in an arbitration, it’s usually the first thing the client thinks about. “

1°Indeed the issue of costs in international arbitration is a crucial aspect addressed in the report of the investigation into the costs of international arbitration of the CIArb in 2011:

a-Allocation of Costs: According to the report, the parties must decide how much they are willing to invest in the arbitration procedure, based on the amount of the claim.

The data show that the parties spent on average:

74% of the costs for external lawyers’ fees, including litigators’ fees.

The remaining 26%  was divided into other categories such as expert fees, external expenses, witness fees and management fees[42].

b-Distribution of Costs by Category:

Legal external costs were distributed as follows:

19% for preparation/start of arbitration

25% for the exchange of documents

5% for discovery

14% for facts and expert witnesses

37% for the hearing (before, during and after)[43].

c-Common costs:

In addition to the parties’ costs, other common costs were also incurred, mainly:

60% of costs for arbitration fees

The remaining 40% was divided between the production of transcripts, the rental of the courtroom, certain arbitral expenses and other miscellaneous amounts[44].

d-Differences between Plaintiffs and Defendants:

Survey data showed that, on average, claimants spent around £1,580,000 while defendants spent on average £1,413,000, a difference of around 12%[45].

Defendants spent more than plaintiffs on experts, with a notable difference of nearly 55%[46].

2 ° -Comparity of duration and cost between arbitral institutions:

International arbitration as a method of dispute resolution cross-border continues to grow in popularity. By choosing the rules of arbitral institutions to be included in an agreement arbitration (if applicable), the parties will often take into account the the likely duration and cost of any arbitration. It is for this reason that the various arbitration institutions regularly publish the average duration and costs of arbitrations that they administer. We have summarized here the statistics provided by some of the most commonly chosen institutions.

a- Arbitration Rules of the Chamber of Commerce (ICC Rules) :

Indeed, 946 arbitrators were registered with the ICC in 2020, the majority of which were conducted under the ICC Rules of Procedure 2021.Thus, 53.5% of these arbitrations took place in Northern and Western Europe.

As for duration: ICC’s 2020 statistics on dispute settlement show that the median duration of arbitrations leading to a final award in 2020 is 22 months.

As for Cost: The average cost of arbitration under the ICC Rules is $170,799

Finally, the ICC’s administrative costs and arbitrators’ fees are fixed ad valorem (“according to value”) and the ICC Rules contain scales for these in relation to the value in dispute[47].

b-Arbitration Rules of the Singapore International Arbitration Centre (the SIAC Rules) :

The most recent study on the costs and duration of SIAC was prepared in October 2016[48]and based on arbitration under the SIAC 2013 Arbitration Rules. The number of ACIS cases has increased significantly since then, from 343 in 2016 to 1,080 in 2020. Thus, the SIAC 2016 arbitration rules have been introduced since the last study, but none of the changes made to the new 2016 rules have had an impact on the cost or probable duration of an arbitration.

As for duration: The median duration of a final scholarship from the date of entry into force was 11.7 months.

As for the cost: Like the ICC, SIAC applies fixed costs, invoicing on the basis of the amount in dispute and the number of arbitrators. With respect to the average cost of a SIAC arbitration, SIAC indicated in its October 2016 cost and duration study that it was US $29,567[49].

d– Rules of the London Court of International Arbitration (the LCIA Rules) :

The LCIA’s[50] 2020 Annual Report reveals that its continued popularity in the energy and resources, transportation and commodities, and banking and finance sectors – 68% of LCIA arbitrations in 2020 came from these sectors. The most recent study on the costs and duration of LCIA arbitrations was published in 2017.

As for duration: The average duration for a final decision was 16 months from registration.

As for Costs: The average cost was US $97,000.

e-Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Rules)

The SCC introduced new rules in 2017[51] that aimed to emphasize the efficiency and speed of SCC arbitrations. General statistics prepared by CCN in 2020 provide an overview of duration, but updated cost details were not provided.

As for duration: 40% of the final awards were made within 6 months from the date on which the case was referred to the arbitrator or tribunal, while 42% of the final awards were rendered within 6 months from the date the case was referred to the arbitrator or tribunal.

As for Cost: The average cost of arbitration under the SCC Rules is not shown[52].

3 ° -Globally in the context of international arbitration, there is a significant relationship between the costs incurred and the duration of the procedure.

a-Impact of the Arbitration Period on Costs:

Although the duration of the arbitration may influence certain common costs such as the production of transcripts and the rental of the courtroom, it does not appear to be a determining factor for arbitration fees.

The common costs of arbitration in Europe were higher than in the United Kingdom, indicating that the place of arbitration may also play a role in the variation of costs[53].

a-Reduction of Time and Costs:

With the average duration of an arbitration being between 17 and 20 months as mentioned above, it is essential to consider how to reduce both the time and costs associated with international arbitration.

By identifying the factors that contribute to the prolongation of the procedure and putting in place measures to speed up the process, it is possible to reduce the overall costs of arbitration and improve its efficiency.

2-a) The different solutions proposed :

a-The role of arbitrators in reducing costs and duration:

The ICC’s 2015 report “Decisions on Costs in International Arbitration” examined the issue, highlighting emerging trends in cost allocation in international commercial arbitration, as well as expectations for cost allocation. However, there are few documents on this subject, and it is not clear which are the predominant approaches and practices[54].

With regard to the role of the arbitral tribunal, the arbitration rules had evolved considerably recently to clarify its discretion in the management of proceedings. The debate on the acceptance of the procedures agreed by the parties, to which the authors have always replied in the negative, is now closed. The revised rules, adopted by most institutions, grant the tribunal the final power to conduct the arbitration on its own terms, with an explicit duty of care, limitation of unnecessary expenses and delays, and use of technology for greater efficiency. This includes the decision on the stage of the arbitration where the issues will be decided, the possibility of waiving a hearing, exercising powers of advance determination, setting appropriate time limits, and making any other order deemed appropriate in the circumstances of the arbitration. For example, “Article 22” of the ICC Rules underlines the commitment of the arbitral tribunal and the parties to conduct the arbitration proceedings expeditiously and efficiently, taking into account the complexity and stakes of the dispute. In order to ensure effective management of the proceedings, the arbitral tribunal shall be authorized, after consultation with the parties, to take such procedural measures as it considers appropriate and which do not contradict any agreement between the parties.

b-Where the parties, their lawyers and the arbitral tribunal jointly undertake to manage the proceedings efficiently, arbitration may be expeditious and economical. However, in the absence of such a commitment, the opposite can happen: the flexibility of arbitration can lead to increased delays and costs. This is why the main institutions such as ICDR, ICC, LCIA and HKIAC require in their regulations that the parties do their utmost to avoid delays and unnecessary expenses in the arbitration process.

1. Representation of the parties by counsel :

Indeed, in almost all cultures, the ethical rules governing the legal profession impose similar principles even during international arbitration advice, thus creating a problem. Although lawyers are often seen as custodians of the arbitral institution, they can sometimes compromise the process by using delaying tactics, turning arbitration into a full-blown war.

We will discuss first the problem of fraudulent schemes in international arbitral proceedings (1-b) and secondly the various existing solutions in this area (2-b).

1-b) The problem of fraudulent manoeuvres :

As mentioned above, all lawyers must act with honesty, propriety, sincerity, loyalty, dignity and good faith[55]. It is also essential that they commit to improving institutions and laws.

However, sometimes minimum ethical standards are not respected in conflicting disputes, such as arbitration. The unethical conduct of the representatives of the parties[56] in international arbitration is generally referred to as “guerrilla tactics.”[57]

Indeed, there is no specific or universal definition of the term “guerrilla tactics”[58]. According to Michael Hwang, it describes players whose goal is “to exploit the rules of procedure to their advantage, seeking to delay the hearing and (if given the opportunity) derail the arbitration so that it becomes aborted or ineffective”[59].

Guerrilla tactics can manifest themselves in different forms. The most common guerrilla tactic is when the parties try to escape the jurisdiction of an arbitral tribunal. They can do this by issuing anti-prosecution injunctions, which are intended to block arbitration by refusing to comply with the provisions of an arbitration agreement. In this case, the parties may rely on the judiciary to avoid arbitration. Second, a party reluctant to arbitrate may impede the constitution of the tribunal by raising unreasonable[60] and frivolous objections to the arbitrators, such as the situation described by José Carlos de Magalhães[61] or the parties will request the confinement of one of the arbitrators for the simple fact that he wrote an article in a collective work in which the opposing party’s lawyer participated, or if both are teachers in the same school, or if they are members of the editorial board of a magazine or participate in the same scientific or professional entity[62]. Such objections can significantly delay the proceedings if they force an arbitrator to recuse himself and, even if rejected, their resolution often takes a long time[63].

2-b) The various existing solutions in this area :

Strategy 1: the enigma of the proof of authority

A number of jurisdictions, including Qatar and the United Arab Emirates, require that representatives of the parties to an arbitration be legally entitled not only to conclude an arbitration agreement, but also to exercise their functions as representatives during the arbitral proceedings. Most arbitration rules, including those of the ICC and LCIA, allow the court and/or arbitration institution to order a party to produce “proof of authority” such as a power of attorney (“POA”)[64].

However, this power is discretionary and is sometimes not exercised; it is therefore not uncommon for arbitral proceedings to be concluded without the representatives of the parties having produced their proof of authority on the record[65].

Strategy 2: the cocktail of the provision for costs and jurisdictional objections

Most arbitration rules require the parties, both plaintiff (s) and defendant (s), to make a provision for the estimated final costs of an arbitration in order for the proceedings to take place. It is therefore not uncommon for defendants (or claimants facing a counterclaim) to withhold payment of their share of the provision for costs and require the claimant (or counterclaim) to make an alternative payment if they wish the dispute to continue[66].

Strategy 3: the trick of the witness who disappears

Indeed, witness statements are often at the heart of a party’s case in arbitration. This is particularly the case when the witness in question has been one of the main protagonists in the dispute, and even more so when the opposing party tries to tarnish the character of that witness and fears that his testimony at the hearing will be particularly prejudicial[67]. On the other hand, unscrupulous counterparties are known to employ various means to dissuade witnesses from testifying in arbitration. But even when written testimony has been submitted, not everything is certain: if this witness is invited to appear at the hearing (which the opposing party will not fail to ask if he has an asset up his sleeve) and he does not do so without good reason, the IBA rules provide that his written testimony will not be taken into account.

Conclusion :

This article examined the strategic aspects of the selection of arbitrators and counsel. And it has been demonstrated once again that these decisions are decisive for the conduct and outcome of the arbitration. However, the choice of arbitrators as well as that of the parties guarantees good strategic management that can ensure a credible and effective resolution of disputes. In other words, we have tried to demonstrate when taking into account the strategic and cultural dimensions in their choices, the parties can navigate more effectively in the process of international commercial arbitration and this by optimizing the desired purpose namely the smooth running of the arbitral procedure.

To further improve the framework for international arbitration, it is crucial to promote greater awareness of cultural differences and procedural strategies. Arbitral institutions, arbitrators and boards must continue to develop intercultural competencies and adopt practices that promote transparency and fairness.

Bibliography :

AHDAB Jalal, MAINGUY Daniel, « Droit de l’arbitrage : Théorie et pratique »,LexisNexis, Paris, 2021.

BELLET Pierre , “Des arbitres neutres et non-neutres”, in Etudes de droit international en l’honneur de Pierre Lalive, Helbing & Lichtenhahn, 1993 .

CLAY Thomas, « Qui sont les arbitres internationaux : approche sociologique » in Les arbitres internationaux Colloque du 4 février 2005, Paris, Société de Législation Comparée, 2005.

FOUCHARD Philippe, GAILLAIRD Emmanuel, et GOLDMAN Berthold, « Traité de l’arbitrage commercial international», Litec, 1996.

LOQUIN Éric, « L’arbitrage du commerce international », Joly, Paris, 2015.

Journal and newspaper articles :

Boisséson Matthoeu , « Le Conseil dans l’arbitrage » ,Conférence de l’Association Francaise d’Arbitrage , Paris , 20 septembre 2016

Henry Marc, « L’indépendance de l’arbitre au cœur du juste et de l’utile », Les cahiers de l’arbitrage, n°4, p.873,  01/10/2013.

Panagiotis M.Protopsaltis, Review of « GuerrillaTactics in International Arbitration », 31 J. Int. Arb, 6, 2014.

Zennaki Dalila,« DE L’IMPORTANCE DU CHOIX DE L’ARBITRE », Algerian Scientistique Journal Platform ,VOL.25 , n°1, 2020.

Webography :

Aceris Law LLC ,Arbitrage international « Informations sur l’arbitrage international » https://www.international-arbitration-attorney.com/fr/the-choice-between-one-and-three-arbitrators/   ( consulted on 5/11/2024).

Boustany Philippe (Boustany Law Offices) and M.Farchakh (Hadef & Partners) « Guerrilla Tactics 101 :How to torpedo an arbitration » , https://arbitrationblog.kluwerarbitration.com/2023/06/13/guerrilla-tactics-101-how-to-torpedo-an-arbitration/   , (consulted on 6/11/2024).

Kirby Shawn et Cottrell Andrew « Comparing the duration and cost of international arbitration » https://www.wr.no/en/news/comparing-the-duration-and-cost-of-international-arbitration  ,(consulates on 6/11/2024).

Magalhães Jose Carlos, A ética na arbitragem, Revista  Direito ao Ponto, 12 July 2013, available online at http://direitoaoponto.com.br/a-etica-na-arbitragem   , (consulted on 6/11/2024).

Risse Joerg, « The shadow arbitrator : mere luxury or real need? » https://www.globalarbitrationnews.com/2015/08/11/the-shadow-arbitrator-mere-luxury-or-real-need-20150811/  , (consulted on 5/11/2024) .

Salomon Claudia, Ramesh Shreya, « A Primer on International Arbitration Costs », Latham & Watkins, Bloomberg Law, http://www.lw.com/thoughtLeadership/byline-primer-international-arbitration-costs , ( consulted on 6/11/2024) .

Soft Law Instrument  :

-ICC Arbitration Rules 2021.

-LCIA Arbitration Rules 2020 .

-HKIAC Arbitration Rules  2018.

-CIETAC Arbitration Rules 2015.

– CIArb Arbitration Rules 2015.

-SIAC Arbitration Rules 2016.

Reports :

Chartered Institute of Arbitrators (CIArb) Survey, « Costs of International Arbitration »,2010.

Annual Casework Report 2020 , https://www.lcia.org/News/lcia-news-annual-caseworkreport-2020-and-changes-to-the-lcia-c

CIArb Costs of International Arbitration Survey 2011, p.6, https://www.international arbitration-attorney.com/wp-content/uploads/2017/01/CIArb-Cost-of-InternationalArbitration-Survey.pdf

ICC Commission Report « Decision on costs in international arbitration » », https://iccwbo.org/wp-content/uploads/sites/3/2015/12/Decisions-onCosts-in-International-Arbitration.pdf

SCC Rules ,  https://sccarbitrationinstitute.se/sites/default/files/202211/arbitrationrules_eng_2020.pdf

Jurisprudence :

USA :

Cf. Cass. 2° civ.31 janv . 2002 .

FRANCE :

TGI Paris, ord. réf. 15 janv. 1988 : Rev. arb. 1988, p. 316, note J. Robert

 CA Paris, 9 avr. 1992 : Rev. arb. 1996, p. 483.

 CA Paris, 29 févr. 1999 : RTD com. 1999, p. 971, obs. E. Loquin.

 CA Paris, 2 Juin 1992 : Rev. arb. 1996, p. 411

 CA Paris, 4 déc. 1979 : Rev. arb. 1981, p. 146, note J. Rubellin-Devichi : 7 févr. 20 Rev. arb. 2008, p. 501, note J.-B. Racine.

TGI Paris, réf. 29 oct. 1996, inédit, cité par Th. Clay, n° 329, note 6.

[1] J. El Ahdab, D. Mainguy, « Droit de l’arbitrage : théorie et pratique »LexisNexis ,2021 , P 373

[2]   T. CLAY, « Qui sont les arbitres internationaux : approche sociologique »  Les arbitres internationaux Colloque du 4 février 2005, Paris, Société de Législation Comparée, 2005, pp.231,et suiv

[3] T. CLAY, « Qui sont les arbitres internationaux : approche sociologique » , OP.CIT , pp. 245 et suiv

[4] Arbitration clauses are present in the majority of international commercial contracts.

[5] L’arbitrage international est-il encore véritablement un mode alternatif de règlement

des différends ?, RTD com , n°2, p 228.

[6] M. Henry, « L’indépendance de l’Arbitre au Cœur du Juste et de l’Utile », Rev. Cah. Arb, n°4, 2013, p.873.

[7]   D . Zennaki « DE L’IMPORTANCE DU CHOIX DE L’ARBITRE »VOL.25 , n°1 ,ASJP , p . 389, https://www.asjp.cerist.dz/en/article/94252 ,  consulted [online] on 6/11/2024

[8] Aceris Law LLC ,Arbitrage international « Informations sur l’arbitrage international »  https://www.international-arbitration-attorney.com/fr/the-choice-between-one-and-three arbitrators/#:~:text=Le%20choix%20de%20qui%20si%C3%A9gera,arbitrage%20et%20son%20co%C3%BBt%20global , consulted [online] on 5/11/2024

[9] Ibid.

[10] Aceris Law LLC ,Arbitrage international « Informations sur l’arbitrage international » , OP.CIT.

[11] Ibid.

[12]    D . Zennaki ,« DE L’IMPORTANCE DU CHOIX DE L’ARBITRE »VOL.25 , n°1 ,ASJP , OP.cit p . 391

[13] J. El Ahdab, D. Mainguy, « Droit de l’Arbitrage Théorie et Pratique »,OP.CIT, p. 516

[14]  J. El Ahdab, D. Mainguy, « Droit de l’Arbitrage Théorie et Pratique »,op.cit.  p. 516

[15] Cf. Cass. 2° civ.31 janv . 2002 .

[16] See. J. El Ahdab, “L’éthique dans l’arbitrage”, Fédération des Centres d’Arbitrage, published on may 2014, http://www.fca-arbitrage.com/publications/ethique-dans-la-conduite-et-la-gestion-de-l-arbitrage/  , consulted [online] on 5/11/2024.

[17] Cf. J. Risse, The shadow arbitrator : mere luxury or real need? https://www.globalarbitrationnews.com/2015/08/11/the-shadow-arbitrator-mere-luxury-or-real-need-20150811/ , p. 338. , consulted (online) on 5/11/2024

[18] This is the case, for example, with the CAS, which requires appointed arbitrators to appear on a pre-established list, see CAS Procedural Rules, art. R33. On the principle of lists of arbitrators.

[19] See .  égal. Loi-type CNUDCI (2006), art. 11.

[20] Moreover, further reasoning may lead to other difficulties. For example, certain religious communities, whether Jewish, Muslim or Christian, use arbitration to resolve disputes between members of such a religious community, in such a way that the arbitrators are supposed to be of the same religion, a requirement par-Os provided for by the institutions organizing such arbitration. The Jajv.Hashwani case in the UK raised a number of questions in this respect. The Court of Appeal held that the arbitrator was an employee of the parties.

[21] Ph. Fouchard, E. Gaillard, B. Goldman, n° 1028 ; M. De Boisséson, n° 770 ; J. Robert, B. Moreau,  n° 195.

[22] Ibid.

[23] See. M. Henry, « Les obligations d’indépendance et d’information de l’arbitre » , Revue de l’arbitrage, 1999, n° 2, p. 193.

[24]   Bull. civ., I, n° 155 ; RTD com. 1999, p. 371, obs. E. Loquin.

[25]  E. Loquin, « L’arbitrage du commerce international », Joly, Paris, 2015. ,p. 183 .

[26] Disqualification is the procedure whereby a party requests that a judge refrain from sitting on a case, on the grounds of “reasonable doubt” of bias against him or her, for reasons specifically defined by law. The grounds for disqualification of the arbitrator are similar to those laid down for the state judge; V. IBA Guidelines on Conflicts of Interest 2014, and “art. 24” of Moroccan law 95-17.

[27] E. Loquin, « L’arbitrage du commerce international », op.cit. ,p. 183

[28] Cass. 1st Civil, March 16, 1999, Qatar: “It is the responsibility of the judge overseeing the validity of the arbitral award to assess the independence and impartiality of the arbitrator by considering any circumstances likely to affect the arbitrator’s judgment and to create, in the minds of the parties, a reasonable doubt regarding these qualities, which are essential to the judicial function.”

[29] TGI Paris, ord. réf. 15 janv. 1988 : Rev. arb. 1988, p. 316, note J. Robert

[30]   CA Paris, 9 avr. 1992 : Rev. arb. 1996, p. 483.

[31]   CA Paris, 29 févr. 1999 : RTD com. 1999, p. 971, obs. E. Loquin.

[32] CA Paris, 2 Juin 1992 : Rev. arb. 1996, p. 411

[33]   CA Paris, 4 déc. 1979 : Rev. arb. 1981, p. 146, note J. Rubellin-Devichi : 7 févr. 20 Rev. arb. 2008, p. 501, note J.-B. Racine.

[34] CA Rouen, 28 oct. 1998 : Rev. arb. 1999, p. 374.

[35] Even if certain prejudices or biases, such as nationality, the social, cultural or legal environment of the arbitrator, may affect his impartiality, there must still be a “reasonable doubt”.

[36] TGI Paris, réf. 29 oct. 1996, inédit, cité par Th. Clay, n° 329, note 6.

[37]  E. Loquin, « L’arbitrage du commerce international », op.cit. ,p. 190

[38]   P. Bellet, « Des arbitres neutres et non neutres », “, in Etudes de droit international en l’honneur de Pierre Lalive, Helbing & Lichtenhahn, 1993 . , p. 399.

[39] American Arbitration Association, https://www.adr.org/ consulted [online] on 6/11/2024

[40]    E. Loquin, « L’arbitrage du commerce international »,op.cit. p. 190.

[41]   M de Boisséson , « Le Conseil dans l’arbitrage » ,Conference de lAssosiaction Francaise dArbitrage , Paris , 20 septembre 2016 , consulted  [online] on 6/11/2024 http://www.afa-arbitrage.com/afa/uploads/2016/10/2016_AFA_Conference_Le_Conseil_dans_l-arbitrage_Matthieu_de_Boisseson.pdf , consulted [online] on 6/11/2024

[42] Chartered Institute of Arbitrators (CIArb), « Costs of International Arbitration », 2010 p.18

[43] Ibid.,p .19

[44] Ibid .

[45] Ibid.,p.21

[46] Ibid.

[47] See . C. T. Salomon, Sh. Ramesh, « A Primer on International Arbitration Costs », Latham & Watkins, Bloomberg Law,www.lw.com/thoughtLeadership/byline-primer-international-arbitration-costs , consulted [online] on 6/11/2024

[48]   CIArb Costs of International Arbitration Survey 2011, p.6, https://www.international-arbitration-attorney.com/wp-content/uploads/2017/01/CIArb-Cost-of-International-Arbitration-Survey.pdf , consulted [online] on 6/11/2024

[49]  See. C. T. Salomon, Sh. Ramesh, « A Primer on International Arbitration Costs », Latham & Watkins, Bloomberg Law,www.lw.com/thoughtLeadership/byline-primer-international-arbitration-costs , consulted [online ] on 6/11/2024

[50] Annual Casework Report 2020, https://www.lcia.org/News/lcia-news-annual-casework-report-2020-and-changes-to-the-lcia-c , consulted [online] on 6/11/2024

[51] See. SCC Rules, https://sccarbitrationinstitute.se/sites/default/files/2022-11/arbitrationrules_eng_2020.pdf , consulted [online] on 6/11/2024

[52] S. Kirby et A. Cottrell  « Comparing the duration and cost of international arbitration » https://www.wr.no/en/news/comparing-the-duration-and-cost-of-international-arbitration , consulted [online] on 6/11/2024

[53] Chartered Institute of Arbitrators (CIArb), « Costs of International Arbitration », CIArb Survey, op .cit  p.10

[54] CCI, « Decisions on Costs in International Arbitration », Rapport, 2015, https://iccwbo.org/content/uploads/sites/3/2015/12/Decisions-on-Costs-in-International-Arbitration.pdf.

[55] P. M. Protopsaltis, Review of « GuerrillaTactics in International Arbitration », 31 J. Int. Arb, 6, 2014, p. 42

[56] In practice, parties to an arbitration are often represented by lawyers

[57] Ibid.

[58] Ibid.

[59]   M.Hwang SC in his seminal paper ‘Why is there still resistance to arbitration in Asia?’, in Gerald Aksen et. al.(eds), Global Reflections on International Law, Commerce and Dispute Resolution – Liber Amicorum in honour of Robert Briner (ICC Publication 2005)

[60]   P. M. Protopsaltis, Review of « GuerrillaTactics in International Arbitration », op.cit, p. 43

[61] J. C . de Magalhães, A ética na arbitragem, Revista  Direito ao Ponto, 12 July 2013, available online at http:// direitoaoponto.com.br/a-etica-na-arbitragem

[62] Ibid.

[63]   P. M. Protopsaltis, Review of « GuerrillaTactics in International Arbitration », op.cit, p. 43

[64]   P. Boustany (Boustany Law Offices) and M.Farchakh (Hadef & Partners) « Guerrilla Tactics 101: How to Torpedo an Arbitration » /June 13, 2023 /1 Comment https://arbitrationblog.kluwerarbitration.com/2023/06/13/guerrilla-tactics-101-how-to-torpedo-an-arbitration/ consulted [online] on 6/11/2024

[65] Ibid.

[66] Ibid.

[67] Ibid.