Can witnesses in the course of an arbitral hearing be requested to testify on issues for which they were initially not offered by a party? At the outset, this appears to be a remote question but it has become a rather frequent practical problem which can have a significant impact on the outcome of an arbitration. Here is a typical scenario, illustrated by an example: in a large post M&A dispute, the buyer = Claimant…
Anchoring is a psychological phenomenon wherein a person is influenced by certain reference points he or she is…
Most major international arbitration rules require that an award rendered by a tribunal include the reasons upon which…
Nowadays high value M&A transactions and project structures can be very complex, in particular involving a number of parties based in different jurisdictions who between them enter into a variety of related contracts. To save time and money, parties can seek to resolve all the issues in dispute in the same set of legal proceedings, rather than in many different, but related, proceedings. This has traditionally been done relatively easily in court proceedings. However it…
In Miminco, LLC v. Democratic Republic of the Congo, No. 14-01987 (D.D.C. Feb. 9, 2015), a U.S. district court…
A Discussion of the Yukos Case Can the unsuccessful party challenge an arbitral award on the basis that…
In large arbitration cases, skilled counsels fill hundreds of pages with factual and legal arguments in order to persuade the arbitral tribunal. Only if counsel and client are completely convinced that their submission is “the best brief possible under the given circumstances” if not “the best brief ever”, it will ultimately be filed. But will the submission truly convince the arbitral tribunal? A German proverb says “The bait is for the fish to like, not…
Parties who want to opt for institutional arbitration (instead of ad-hoc arbitration) can choose amongst a long list…
The International Council for Commercial Arbitration (“ICCA”) has recently published a so-called “Drafting Sourcebook for Logistical Matters in…
Witness evidence in international arbitration is generally prepared by witness statements these days. A witness statement is a written account of the testimony that a witness wishes to deposit in an arbitration. In the majority international arbitration cases, an oral examination then follows the typical common law pattern of direct examination – cross-examination – re-examination. If the oral testimony is prepared by written witness statements, it has also become almost standard practice that the written…