In this round of Arbitration Tips-N-Tools (TNT), Professor Amy Schmitz asks some of the leading arbitration practitioners about filing arbitration claims, especially in a digital world and faced with the complexities of the Covid-19 pandemic.
Round 1: What are your 3 top tips and/or tools with respect to filing an arbitration claim – especially in the digital era and complexities of Covid?
A) Theo Cheng –
- If possible, the tribunal should strive to send the parties or their counsel in advance at least a list of items on which they should meet-and-confer before the preliminary hearing and/or a tentative agenda. Doing so encourages the parties to work together – which will inure to all participants’ desire to have an efficient and cost-effective process – and help make the preliminary hearing go smoother because the parties will have at least considered the issues that the tribunal wishes to discuss with them in coming up with an appropriate scheduling order.
- One option a tribunal might consider is whether to affirmatively ask to hold the preliminary hearing via a video teleconferencing platform. The cost to do so is negligible, and holding a preliminary hearing where all participants can see and hear each other can help facilitate all participants working together more collaboratively to ensure that the proceeding will be efficient and cost-effective. Additionally, particularly in panel contexts, advocates will gain a better understanding and appreciation for how the tribunal interacts with each other.
- As part of the preliminary hearing, the tribunal should confirm with the parties that they (a) have no objections to the manner in which the tribunal was constituted; (b) are in agreement regarding the applicable procedural rules, procedural arbitration statute, and the law governing the claims and counterclaims; and (c) have properly named all the parties in this proceeding, and that they are currently aware of no other necessary parties that need to be joined. These introductory matters serve to ensure that all participants are in agreement as to the proper legal framework and the jurisdiction and authority of the tribunal, thereby either minimizing potential disputes and ambiguities later in the proceeding or fleshing out early in the proceeding any jurisdictional, arbitrability, or other foundational issues that need to be handled.
B) Daniel Urbas –
- Be clear about the issues raised and the remedies/conclusions sought in the arbitration.
- Consult the rules before filing in order to identify any particular formats or contents which must be in the notice (ie no consolidated notices for 2+ arbitrations, each requires its own notice).
- Include names of opposing counsel and key representatives so that arbitrators can conduct a more accurate conflicts search before the appointment and not during the arbitration.
C) George Friedman –
- Use headers: I don’t have ESP so it helps if you give me a hint on where you are going with your demand for arbitration.
- Be succinct: In the age of COVID, you don’t want to bore the arbitrators. Keep your paragraphs focused and brief.
- Use links: PDF with links is the way to go.
D) DeAndra Roaché –
- Parties to decide whether they want to have an evidentiary hearing or if the dispute lends itself to a “Documents- Only/Desk Arbitration” proceeding. If an evidentiary hearing is preferred, consider the format, i.e. in-person, telephonic, or videoconference.
- Consider an e-platform that is able to accommodate participants having lesser technical capabilities and know-how.
- Make time to set up dry-runs or practice sessions to ensure all participants are comfortable with the technology.
- The arbitrator(s) should possess a sufficient level of competence with whatever platform is proposed for use, so as to facilitate the proceedings without delay or disruption.
- Know the applicable arbitration rules that govern the proceeding
Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week……