The International Chamber of Commerce  (ICC) has published a guide on Effective  Management of Arbitration: A Guide for  In-House Counsel and Other Party  Representatives (‘the Guide’). 

The guide was issued on 6 June 2014 and  may be accessed here. Having regard to  the complexity and value of the dispute,  the guide aims to provide in-house counsel  and other party representatives with a  practical toolkit for making decisions on  how to conduct arbitration in a time and  cost-effective manner (Article 22(1) of the  ICC Rules of Arbitration). 

This client alert seeks to outline some of  the salient points of the guide below:- 

Settlement considerations 

A great deal of time and cost can be saved  when a negotiated settlement is reached  between the parties. 

In deciding whether or not to settle, parties  may consider the following:- 

 Preservation of relationships –  settlement may support the  preservation of an on-going  relationship than litigation; 

 Difficulties of enforcement – a  settlement for a lower amount may  be appropriate when enforcement  is uncertain; 

 Reasons not to settle – example,  settlement may be interpreted as an  admission of liability; 

 Importance of confidentiality – ICC  arbitration proceedings are not  confidential unless agreed upon by  the parties. A settlement may then  be preferable compared to  arbitration. 

If parties have decided to explore  settlement, various methods are available  to them under the ICC Mediation Rules  and these include mediation, neutral  evaluation, mini trial or a combination of  methods. 

Even where settlement is not feasible, the  arbitration can be managed in such a way  so as to facilitate the settlement throughout  the proceedings. 

Some of the several case management  techniques that can be used include  bifurcation, early consideration of  controlling issues and engagement of the  arbitral tribunal.    Case management conference 

The case management conference provides  the mechanism for determining the  manner in which the arbitration will be  conducted. 

During the course of the arbitration,  decisions made at the case management conference can be modified either by  agreement of all of the parties or by a  decision of the arbitral tribunal. 

The arbitral tribunal is required to convene  an early case management conference to  consult the parties on the conduct of the  arbitration (Article 24(1) of the ICC Rules  of Arbitration). 

The arbitral tribunal and the parties are  also required to make every effort to  conduct the arbitration in an expeditious  and cost-effective manner, having regard  to the complexity and value of the dispute  (Article 22(1) of the ICC Rules of  Arbitration). 

Thereafter, the arbitral tribunal may adopt  procedural measures for the conduct of the  arbitration provided that they are not  contrary to any agreement of the parties  (Article 22(2) of the ICC Rules of  Arbitration).    Request for arbitration 

As it would be prudent for the claimant to  make all of its claims prior to the signing of  the Terms of Reference, an early  assessment of the nature, strengths and  weaknesses of its case must be considered  by a claimant before filing a Request  (Article 4 of the ICC Rules of Arbitration). 

The claimant must also decide whether to  file a shorter or longer Request depending  on the circumstances of the case and  strategic considerations. 

The guide lists out questions that are to be  asked when deciding to file a Request and  these include:- 

 What is the desired result of filing  the Request? 

 Are there any valid reasons for not  conducting an early case  assessment? 

 Are there any real cost savings in  filing a shorter Request? Would  they be outweighed by the benefits  of filing a longer Request? 

 Are there any other strategic or  legal considerations that may affect  the timing of the filing of the  Request and consequently whether  it should be shorter or longer?    Answer and counterclaims 

Once a claimant has filed a Request, the  respondent is required to file an Answer  with the Secretariat (Article 5 of the ICC  Rules of Arbitration). 

The Answer must contain the information  required by Article 5(1) of the Rules and it  may also contain a counterclaim pursuant  to Article 5(5) of the Rules. 

The question is, how detailed or extensive  should the Answer and any counterclaim  be? 

Some of the questions that may be asked  by the respondent before filing the Answer  include:- 

 Are there any real cost savings or  any other advantages in filing a  shorter Answer? Would they be  outweighed by the benefits of filing  a longer Answer? 

 Is there sufficient time to conduct  an early assessment of the defence  and file the Answer within the 30  days specified in the Rules, or is it  necessary to request an extension of time for filing the Answer pursuant  to Article 5(2)? 

 Are there any serious counterclaims  that can and should be raised in the  arbitration? Should they comply  with only the minimum  requirements set out in the Rules or  be more detailed and accompanies  by evidentiary exhibits? 

The guide also provides that consideration  should be given to whether filing a shorter  or longer Answer might facilitate  settlement discussions.    Multiparty Arbitration 

When parties agree, an arbitration having  more than two parties may occur under the  ICC Rules of Arbitration. 

Although a single multiparty arbitration  could result in more comprehensive  proceedings, avoids the risk of conflicting  decisions in separate arbitrations, it could  also increase the length and cost of the  arbitration. 

Question is when is it beneficial to choose a  multiparty arbitration? 

According to the guide, consideration  should be given as to whether a single  multiparty arbitration as opposed to two  or more separate arbitrations would save  time and money. 

Consideration should also be given as to  whether the time and cost benefits  outweigh any of the potential  disadvantages if a single multiparty  arbitration is opted and whether it would  be beneficial to the contractual role of each  party and the specific interests flowing  from that role. 

Early determination of issues 

In arbitration, there may be threshold  issues or discrete issues to be decided  upon. 

The issue is in what circumstances would  it be beneficial to break out certain issues  for early determination by the arbitral  tribunal in a partial award? 

The guide lists out some questions to ask  in considering the issue above:- 

 Does the case contain any threshold  or discrete issues that could be  determined in a separate award? 

 Would the early determination of  those issues by the arbitral tribunal  be beneficial? 

 Would early determination (a)  potentially resolve the entire  dispute, (b) facilitate settlement or  (c) simplify the rest of the  arbitration?    Rounds of written submissions 

The length and cost of arbitration may  increase with each round of written  submissions. 

It is therefore important to determine  whether, in a particular case, the benefits  of an additional round are worth the extra  time and cost. 

Parties may consider asking the following  questions in deciding on how many  rounds of written submissions are  appropriate:- 

 Does the case justify the extra time  and cost caused by additional  written submissions?

  Are additional rounds of  submissions genuinely useful or  necessary for a party to make its  case to the arbitral tribunal, and if  so, why? 

 What is the estimated cost of such  additional rounds? 

 Is the benefit worth the cost, and if  so, why? 

Further, parties may agree or the arbitral  tribunal may make an order that the  following considerations are also to be  taken into account:- 

 Limiting the number of pages of  written submissions. 

 Limiting the scope of such  submissions. 

 Having the arbitral tribunal  indicate issues to focus on. 

 Whether any subsequent rounds of  submissions should be  simultaneous or sequential.

   Whether post hearing briefs are  genuinely useful or necessary.    Document production 

 The extent to which one party may  demand another party produce documents  is referred to as document production. 

 As document production can involve  substantial time and cost, the guide lists  out the following considerations that could  be taken into account by the parties:- 

 Whether it is appropriate to deal  with document production in the  arbitration clause. 

 Whether parties could agree to a  limited document production in  accordance with the IBA Rules or  by agreeing to broad document  production or “discovery”. 

 Whether document production  should occur once or more than  once and whether it should occur  prior to or after written  submissions. 

 Whether it is appropriate to limit  documents transmitted to the  arbitral tribunal to a manageable  quantity. 

If the parties agree or the tribunal  orders the production of electronic  documents, special considerations may  be needed.