What does international arbitration lingo mean?
Over the years, international arbitration practice has become increasingly specialized. The international arbitration bar is a world unto itself, with its own jargon. What are some key arbitration terms one should know?
The power of an arbitral tribunal to decide a case according to equitable principles rather than law. Under the laws of most jurisdictions, a tribunal may decide a case as amiable compositeur only if parties have agreed to it.
In U.S. arbitration, “arbitrable” refers to the jurisdiction of the arbitral tribunal, i.e. whether a dispute must be decided by the tribunal or by the courts. Outside the U.S., a dispute’s “arbitrability” is about whether mandatory laws render a dispute incapable of resolution by arbitration. For example, in many foreign jurisdictions, employment and consumer disputes are non-arbitrable.
An administrative secretary (or tribunal secretary) is a person – often a junior lawyer – hired to provide administrative support to the arbitral tribunal. The scope of the services provided by the secretary varies. Some secretaries do purely logistical tasks, such as facilitating tribunal communications and preparing hearing papers. Others function more like U.S. judicial law clerks, researching points of law or producing first drafts of orders or awards.
Reluctance by arbitrators to act decisively on procedural matters for fear their arbitral awards might be challenged on due process grounds (specifically that a party has not had the chance to present its case fully). Some arbitrators tend to make overly cautious case management decisions (e.g., granting repeated extensions, accepting belated introduction of new evidence, or acceding to last-minute rescheduling requests). Arbitration users may be concerned by the cost consequences of these tendencies.
The concurrent presentation of expert evidence at the hearing under the control of the tribunal. When “hot-tubbing,” the tribunal simultaneously solicits evidence from both sides’ experts to probe areas of agreement and disagreement. A less fanciful term for this practice is witness conferencing.
The doctrine that an arbitral tribunal has the power to decide questions relating to its own jurisdiction. This includes the power to decide objections to the existence or validity of the arbitration agreement. The doctrine is recognized by the laws of most jurisdictions.
In international arbitration, different rules can govern merits and procedure. The lex arbitri is the set of rules governing an arbitration’s procedure. Lex arbitri usually include any rules agreed by the parties (including any applicable institutional rules), and the law of the seat of the arbitration.
But beware: Some practitioners use the term lex arbitri to mean lex loci arbitri. That is a narrower concept. It refers to the law of the seat of the arbitration only. It does not include any procedural rules the parties agreed.
In most international arbitrations, parties make written submissions in the form of “memorials.” These are exchanged after the constitution of the tribunal, setting out a party’s claims and defenses in full. They are accompanied by all documentary evidence, witness statements, expert reports, and legal authorities for claims and defenses.
International arbitral tribunals often organize requests for production of documents (i.e., discovery) using a document called a “Redfern Schedule.” Named for its inventor, arbitrator Alan Redfern, the schedule often contains five columns: (i) identification of requested documents; (ii) reasons for each request; (iii) objections by the other party; (iv) a reply; and (v) the Tribunal’s decision on each request.
The practice of certain arbitral institutions, like the International Chamber of Commerce (ICC), to review draft awards before they are finalized and issued to the parties. Its purpose is to weed out any errors that could complicate compliance with, or enforceability of, the award. Under its rules, the ICC may impose modifications to the form of the draft award. It may also suggest certain modifications to the award’s substance.
Splitting the baby
A reference to the biblical Judgment of Solomon, this expression describes an arbitrator, attempting to please all parties equally, splitting things down the middle. Arbitrators perceived as being overly indecisive are sometimes described colloquially as “baby-splitters.”
Terms of reference (“TOR”)
At the beginning of some arbitrations, the arbitral tribunal and the parties sign a document called Terms of Reference. These terms, prepared by the tribunal with input from the parties, provides a roadmap for the arbitration. ICC rules require the TOR to contain the identities of the parties, their claims, and the relief they seek. The TOR typically contain a list of issues for the tribunal to decide. They further contain confirmation of the seat of the arbitration and the particulars of any applicable procedural rules.
Where an arbitral tribunal originally composed of three members continues to hear a case with only two members after one was removed, resigned, or passed away.
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