Arbitration: Practice ‘On The Fly’

In this week’s interview, Chris Ross, an associate of the Chartered Institute of Arbitrators (CIArb), tells us about unexpected challenges faced by professionals in the international arena.

‘The arbitration venue in this South East Asian capital city was not what we imagined: a room above an office on a busy road, cars and motorbikes whizzing past, windows open because of the heat; not the typical setting.’

Chris Ross, an associate of the Chartered Institute of Arbitrators, went on to describe something more unsettling.

Arbitration is a private dispute resolution mechanism. Parties appoint a panel of arbitrators who hear the dispute, make a ruling and issue an ‘award’. It’s confidential, unlike court judgments. International traders are increasingly using arbitration as parties in different countries are often unhappy for their dispute to be heard in either country’s court, preferring a neutral jurisdiction. In this case, though, the contract specified the other side’s country.

‘At the start, proceedings followed the expected format. Occasionally you would hear the other side converse between themselves in their local language instead of the agreed English, and then mutter comments towards the panel. Then you would hear comments between the panel, sometimes directed back towards the other side.’

Chris was in a quandary. ‘The duty to your client requires an understanding of what’s being said, making objections if required. But you must stay onside with the tribunal. If they take against you, it may affect the ruling. Often flexibility of interpretation allows the tribunal to decide who they want to win. We were in a tricky position.’

During a break, Chris decided ‘on the fly’ to bring in a local translator. ‘In theory there’s a rule book and everyone knows how it should be done in practice. Developing jurisdictions don’t have the history; unexpected things occur. You must be ready to react to unpredictable situations.’

In this case, ‘We didn’t have to interject or make any complaint. Having the interpreter eased our concerns.’

Edited by Professor Andy Friedman, CEO of PARN

First appeared in Newsweek, edn. 8 May 2015

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