The effort to cut arbitration costs has led to the promulgation of a new tech-assisted model that David Rivkin refers to as the Town Elder Arbitration Rules, which are meant as an informal supplement to the UNCITRAL Arbitration Rules. The TEA Rules are named after a 2008 paper by Mr. Rivkin.
The key element appears to be the development of “a decision tree listing the issues to be determined and the sequence in which these issues will be decided. The tribunal should organize the decision tree so that the most critical issues would be determined first.”
The procedure appears to incorporate what appears to be more of a civil law feature, ie, increased involvement by the arbitrators in the identification, development, and presentation of evidence. For example, the TEA Rules “provide the means to determine each of these issues in the decision tree. The tribunal and the parties will establish the procedure for each step one at a time, with a focus on only the procedure necessary for that particular step. Some steps may not require written submissions; others may not require witnesses, experts, or document production. If any document discovery is required, Mr. Rivkin proposed that it be a much more iterative process, with substantially more tribunal involvement, in order to ensure that the search process is more focused and cost-effective. Following a hearing on that issue, the tribunal must issue its decision within a month. That decision will then determine which step in the process shall be undertaken.
Eventually, the case will be decided by a final award in a step that determines an issue that, alone or in conjunction with prior decisions, is dispositive of the case, a settlement by the parties facilitated by the guidance that the tribunal has provided in its step decisions, or a final award dealing with all issues raised. Mr. Rivkin argued that if the decision tree is well designed, most cases will be resolved without the need to determine every issue that was initially presented.”
The Town Elder Rules are found here.
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