LENGTHY ORAL SUBMISSIONS – EPISODE 2

Be a good listener

Written by Graham Perry

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

5 July 2021

ARBITRATION  #128

You, the Chair, are being tested. Does the Tribunal need to listen to claimants’ 43-page opening statement at the start of Day 1?
 
You caucus with the two wingers. What is their view? They have to go first so that if there is a difference of opinion between them, you will have the casting vote. Some chairs give their opinion first. Wrong. You must hold back + be in a position to give the casting vote + not pass that burden/responsibility to a winger by jumping in first.
 
You offer the wingers some guidance. You refer to S 33 and the need to be fair + impartial and to avoid unnecessary delay or expense. You also summarise – briefly + neutrally – the submissions + the evidence. You set the scene – you then ask the question – What To Do About The 43 Pages?
 
As it happens the wingers are divided. Perhaps the presence of the Observer in the hearing room has played on the mind of the winger wanting to allow the 43 pages in but that is a great topic for another day. For the present, you talk it through and the Tribunal concludes – by a majority – that the 43 pages are too long + unnecessary.  So, you have a decision to give – a direction in fact.
 
But aren’t you missing something? The parties have no idea why you have asked for private time. So, first things first. Express the concerns about the 43 pages and invite the parties to comment. They may say something you have not considered. Be a good listener. And then caucus again to review your proposed action.
 
Episode 3
6 July 2012
The Tribunal’s Decision

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