LENGTHY ORAL SUBMISSIONS – EPISODE 1

You are chairing a three person Tribunal. The wingers – both female but nothing turns on the issue – are party appointed + they have appointed you as chair.

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

3 July 2021

ARBITRATION #270

You are chairing a three-person Tribunal. The wingers – both female but nothing turns on the issue – are party-appointed + they have appointed you as chair. All is progressing. Claim submissions have been served, Reply submissions too, in response to Defence submissions. Trade representatives have been appointed. There are two expert witnesses on issues of quality and an interpreter for one witness giving zoom evidence from Warsaw. The parties, unusually, requested that the evidence be transcribed and that is all in place with the transcript delivered nightly online by email by 20.00 hrs. Claimants’ request for an observer is agreed. A common bundle has been prepared + delivered in good time for the Tribunal to read + note.

The Tribunal meets at 09.00 for a pre-hearing discussion. Certain points in the evidence are mentioned but nothing untoward. Everything is ready for the off at 09.30.

You make the introductions; no last-minute applications relate evidence or witnesses. Nothing, in fact, to derail a well pre-prepared hearing. The claimant’s trade rep is directed to present the claimant’s case. He distributes a document entitled Opening Submissions. They total 43 pages. Ouch!!

The body language from the wingers indicates consternation at 43 pages. Nothing is actually said but you sense that the Tribunal needs to discuss + you quite neutrally inform the parties that the Tribunal require a short break. The room empties and the discussion commences. Your discussion confirms that the submissions have been read + cross-referred with the documents. The claimant’s reply makes clear the points of difference with the respondent’s defence. “Do we need 43 pages of opening submissions?” You all ask.

How to handle it? – first with the wingers + second with the trade reps. What is the Tribunal view? Is there just one collective view or a dissenting view? Does it matter that an observer is present – a senior director of claimants? And of course everything you say as Chair is recorded in the transcript of proceedings.

Episode 2
4 July 2021
Your Next Step.

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