DEALING WITH GUERILLA TACTICS IN INTERNATIONAL ARBITRATION .
Dealing withGuerilla Tacticsin InternationalArbitration: whichtools for Counseland Arbitrators?Professor Fabian Ajogwu, SANPrincipal Partner
Dealing with Guerilla Tacticsin International Arbitration:which tools for Counsel andArbitrators?Professor Fabian Ajogwu, SAN*Principal PartnerIt is a privilege to be invited to speak at theKIAC International Arbitration Centre’s 2014Conference on the theme ‘Emerging Issuesin International Arbitration: What a NewArbitral Seat Can Anticipate,’. I would liketo share with you my thoughts on a subject,whose importance in recent times, has beenbrought to the front burner as it rightfullyshould. It is the subject of unconventional anddisruptive behavior in international arbitrationpopularly referred to as ‘guerrilla tactics’.IntroductionWith globalization and advances in commerceand technology, the need for legal systems toadapt to mechanisms for enhancing alternativedispute resolution (ADR) methods continuesto grow. The rising popularity of ADR canbe explained by the increasing number ofcases being handled by the traditional courtsand the attendant delays, the perception thatADR imposes lower costs than litigation, apreference for confidentiality and the desireof some parties to have greater control overthe selection of the individuals who will settletheir dispute on the basis of competence,experience and absence of bias1 In dealingwith guerrilla tactics in InternationalArbitration, it is paramount to first andforemost understand the consequence of thephrase “international arbitration” in relationto the subject of discourse, especially as termsin common use often elude definition.2 It issometimes said that every arbitration is anational arbitration in the sense that it mustbe held at a given place and is accordingly,subject to the national law of that place. Whilstthis may be an interesting topic for debate, inpractice, it is customary to distinguish betweenarbitrations which are purely “domestic” andthose which are “international”.International arbitration is a process used byparties from different states to determine their1 FI, Ajogwu, Commercial Arbitration in Nigeria: Law & Practice, 2nd edition P 3.2 Discussed at the Kigali International Arbitration Conference (KIAC) 2014 International Arbitration Conferencewith the theme ‘Emerging Issues in International Arbitration: What a New Arbitral Seat Can Anticipate, by FIAjogwu and Günther J. Horvath.*Professor Fabian Ajogwu, SAN is of the law firm Kenna Partners, and is the Author of ‘Commercial Arbitration in Nigeria: Law & Practice’, 2nd Edition, Centre for Commercial Law Development, 2013, Lagos. ISBN:97897891995702w w w.kennapar tners.com
“.Adverse conduct by parties/attorneys/lawyers in the course of arbitration proceedingsmay otherwise be regarded as bad behavior.”disputes before an impartial tribunal appointedby a commonly agreed method.3 Internationalarbitration therefore, would simply suggestthat parties to the arbitration are in differentstates or countries. Under the UNCITRALModel Law, arbitration is international if: a) the parties to an arbitration agreement have,at the time of the conclusion of that agreement,their places of business in different States; orWhat Constitutes Guerrilla Tactics inInternational Arbitration?b) one of the following places is situatedoutside the State in which the parties havetheir places of business:(i) the place of arbitration if determined in, orpursuant to, the arbitration agreement;(ii) any place where a substantial part of theobligation of the commercial relationship isto be performed or the place with which thesubject-matter of the dispute is most closelyconnected; orc) the parties have expressly agreed that thesubject-matter of the arbitration agreementrelates to more than one country.”4Experience has confirmed the long-standingadvantages of arbitration as compared todispute resolution before domestic courts,some of which are: 3456Neutrality of the dispute resolution forum;Legal and/or technical/commercial/cultural expertise of the arbitrators; Flexibility and confidentiality of theproceedings;Finality of the award; andWorldwide (International) enforceabilityof the award under the New YorkConvention.Parties to international business transactionsare often driven by a desire to preserve theirbusiness relationship and prefer the friendlyatmosphere of arbitral proceedings.5 However,subscribers to international arbitrationincreasingly complain about the length andcost and more recently, the tactics adopted bylawyers in the course of arbitral proceedings.These complaints reveal that arbitrationhas fallen victim of its own success.6 It hasnow become glaring that the lee-ways andadvantages synonymous with arbitration alsogive room for disadvantages and proceduresthat are too notorious to be considered merelyas bad behaviour.Adverse conduct by parties/attorneys/lawyersin the course of arbitration proceedingsmay otherwise be regarded as bad behavior.However, the term guerrilla tactic is oftenused to describe those actions which areperceived as more hostile practices displayedby parties in arbitration in an attempt to gaina better advantage over the opposing party.Clayton Utz, A guide to International Arbitration p. 2Art. 1.(3).Klaus Peter Berger, Private Dispute Resolution in International Business. P 308Rivkin, Arb. Int’l (2008), 375, 377.w w w.kennapar tners.com3
Ti date, there is lack of clear definition ofGuerrilla Tactics in International Arbitration,This accounts for why conduct identified bysome attorneys as ‘guerrilla tactics’ wouldbe defended by others as legitimate strategy,or even as part of an attorney’s obligation todiligently represent the client’s interest.7The list of what constitutes Guerrilla Tacticsin international arbitration is long andsometimes can hardly be distinguished frombad behaviour on the part of parties or counselrepresenting parties in an internationalarbitration, The following have beenidentified as Guerrilla Tactics in internationalarbitration:8 convincing an arbitrator to go home ratherthan attend deliberations;death threats;changing counsel mid-proceedings tocreate a conflict with an arbitrator;wiretapping opposing counsel’s meetingrooms;hiding damaging documents that wereordered to be disclosed;raising many challenges to a singlearbitral tribunal;physically assaulting the opposing party;raising excessive frivolous objections to’run the clock’ at an evidentiary hearing;threatening a witness to dissuade himfrom testifying; and absurdly excessive requests for documentdisclosure.The diversity of commercial disputes resultsin a complex combination of different legal,regulatory and ethical background amongstthe arbitrators and legal practitioners. Thereis no universal standard or body of rules orregulations to guide the ethics and proceduresof parties in arbitration proceedings. Thereare however, different international bodiesand institutions that have made available rulesand principles of ethics to bind the conductof parties in arbitration proceedings but theparties will have to agree to be bound bythose rules and principles in the first place. Anexample is the International Bar AssociationRules of Ethics for International Arbitrators.FACTORS RESPONSIBLE FOR THERISE IN THE USE OF GUERRILLATACTICS IN INTERNATIONALARBITRATIONFirst, there is the absence of a uniform legalframework regulating ethical conduct ofcounsel in international arbitration. Ethicalissues that are prevalent in internationalarbitration are numerous and range fromconflict of interest, incompetence, lackof candor, dishonesty, and impropercommunications with opposing parties, toimproper arrangements for remuneration forlegal representation.9 These ethical issuesoften metamorphose into ”guerrilla tactics” ininternational arbitration. For instance, where a7 Catherine A. Rogers, ‘Guerrilla Tactics in International Arbitration: Ethics, Practice, Remedies’ Legal StudiesResearch Paper No. 23-2013.8 Günther J. Horvath, Stephan Wilske, Guerrilla Tactics in International Arbitration, International Arbitration LawLibrary, 2013, ISBN 13: 9789041140029.Stephan Wilske, ‘Arbitration Guerrillas at the Gate: Preserving the Civility of Arbitral Proceedings when theGoing Gets (Extremely) Tough’, in Austrian Yearbook on International Arbitration, ed. Christian Klausegger et al.(Manz’sche Verlags-und Universitätsbuchhandlung, 2011), 315-3199 Richard M. Mosk, ‘Attorney Ethics in International Arbitration’ (2010) S Berkley Journal of International LawPublicist 32, p. 33.4w w w.kennapar tners.com
counsel who is incompetent in an internationalarbitration resorts to death threats tointimidate a fellow counsel; or where acounsel raises many challenges against asingle tribunal arising from dishonesty.Counsel representing parties in internationalarbitration usually come from differentregulatory backgrounds with respect to lawsthat govern their professional conduct. AsMosk rightly pointed out, different regimeshave a variety of rules or laws applicableto these ethical issues enumerated above. Itis also relevant to point out that the extentto which choice of legal principles cangovern professional conduct issues cannot bedetermined easily.10Secondly, erring counsel in internationalarbitration proceedings cannot be subjectedto any forum-state disciplinary system ormechanism as is the case with the judicialsystem. As there is no uniform code ofconduct that binds counsel in internationalarbitration, there is also no chance ofprosecuting or sanctioning any erring counselor counsel adopting Guerrilla tactics ininternational arbitration. For instance everystate has prescribed punishment or sanctionsfor counsel that violates the code or rules ofthe legal profession unlike in internationalarbitration. There is no oath in internationalarbitration which the violation can result inprosecution. In situations like this, counselresort to all sorts of tactics including Guerrillatactics which serve to favour their clients ortheir selfish interests.Thirdly, international arbitral tribunals havevery little or limited powers to disciplinecounsel or parties that engage in conduct thatis unacceptable and may be termed Guerrillatactics. Because counsel appearing before aninternational arbitral tribunal are not licensedor regulated by that particular tribunal, theycan afford to hide damaging evidence or treata witness unfairly and with impunity.Another issue or factor responsible for counselengaging in acts which may be described asguerrilla tactics is that arbitrators are usuallypaid by parties and appointed by the counselrepresenting parties. Therefore, this creates alikelihood of bias on the part of arbitrators,and they are more likely to indulge counselor parties that adopt guerrilla tactics. Thisraises the issue of arbitrators’ independenceand resoluteness. It has been argued that theconcept of the “impartiality of party-appointedarbitrators” is mere pretence.11Tackling Guerrilla Tactics in InternationalArbitrationConsequently, where parties from twodifferent countries decide to settle theirdispute by arbitration, there is bound to bea clash of ethics. A common example is thepractice of Ex parte communication whichis common in some countries like China andeven Nigeria but may be abhorred in otherjurisdictions. The act of an arbitrator actingas a mediator and speaking to one party inthe absence of another will be a ground tochallenge the impartiality and independenceof an arbitrator.The principles of arbitration are the sameas those for natural justice - Audi alterampartem which means that both parties shouldbe heard and Nemo iudex in causa sua whichmeans no man should be a judge in his own10 Richard Mosk & Tom Ginsburg, ‘Evidentiary Privileges in International Arbitration’ (2001) 50 International andComparative Law Quaterly 345.11 See Mosk, (n 13) at p. 36.w w w.kennapar tners.com5
case. The principles in administrative law,are to ensure that the decisions of tribunalsand governmental agencies are reached in aproper manner ensuring that all the partiesare heard fairly and the decision is reachedfairly too. Article 18 UNICITRAL ModelLaw safeguards the parties’ basic proceduralright of equal treatment and their right to beheard as the essential principles of arbitraldue process. These basic procedural rightsconstitute the ‘magna carta’ of any arbitration.‘Unfortunately, the cardinal principles ofnatural justice and fair play that govern theresolution of disputes through arbitration, givethe unscrupulous party and his wily lawyersa lot of scope. They will put the claimant toproof of each and every fact that has to beproved. They will find particulars and furtherand better discovery, the further the betterdiscovery wears down the claimant’s patience,eats into his pocket, and delays the dreadfulhour of having to part with money. Attemptsto fix an early date for hearing will be metwith gloomy forecasts of its duration, andpleas for sympathy on behalf of counsel withno dates free until late next year’.12The above quote gives a general but succinctdescription of the guerrilla tactics beingused to delay and frustrate the claimant inan arbitration proceeding. The attempt willgenerally be to wear the claimant out untilhe has no will to push the case any further.Of course there is usually a lot of moneyhanging as the subject matter in arbitrationdisputes so a complete back down will just bewishful thinking. The fact that the adversarialsystem of litigation where the aim to hear bothparties and decide fairly is also the downfallof arbitration. Arbitration tribunals however,do not have the judicial powers to dismisspoorly arbitrated proceedings for lack ofdiligent prosecution or award cost for delayslike in litigation. As arbitration is based oncontract, some of these powers of the judgesin litigation which are taken for granted are anecessity.In arbitration, the concept of the independenceand partiality of the arbitrators are familiarand concept principles that are strictlyapplied. In fact, the rules guiding arbitrationproceedings in most if not all countriesprovide that parties can challenge thearbitrators seating in a tribunal where itis suspected or there is justifiable doubtthat there may be conflict of interest orimpartiality. It is also generally accepted thatlack of independence and impartiality by anarbitrator is a ground to challenge an award.It is unfortunate that these issues of cost anddelay which were a few of the advantagesof arbitration over litigation have becomepart and parcel of the cons of arbitration.The users of international arbitration aremostly corporate parties and, ‘like speed, areimpatient with delay, and abhor unnecessarycosts’. The solution to the problems caused bythe informal nature and practice historically(loosely used) associated with arbitration, isnow the “the ‘judicialization’ of arbitration”.This simply means that arbitration will haveto be submerged into the judicial system andunder the control and protection of judges forit to survive the attacks by practitioners ofguerrilla tactics.SUGGESTIONS &RECOMMENDATIONSThe International Chamber of Commerce(ICC) Commission on Arbitration and ADRsubmitted a Report titled Techniques forControlling Time and Costs in Arbitration12 Thomas, Arbitration (1991), 9, 116w w w.kennapar tners.com
“.It should be noted that in some jurisdictions,it is common practice to prepare a witness.”to assist the Parties and the Tribunal inArbitration Proceedings. The Reports suggestthat:1. Fast-track procedures should be includedto shorten the time spent arbitrating.Article 38(1) of the ICC Rules enables theparties to shorten the time limits providedfor in the Rules. It is however difficultto draft this fast track clause because itis impossible to determine how long itwill take to settle a dispute. The Reportalso advises against setting time limitsfor rendering the final award because itcan create jurisdictional and enforcementproblems if it turns out that the time limitset is unrealistic or not clearly defined.2. A more detailed arbitration agreementsetting out specific details of thearbitration procedure should be createdafter the dispute has arisen. This isbecause ‘the effects of a loose draftingapproach are not felt at the draftingstage’. Rather it is when the disputehas arisen from an inelegant draft thatblames abound, such as, ‘had I known’.An international arbitration agreement isa contract and so requires the existenceof those ingredients for the validity of acontract. The Challenge to internationalarbitration is that many national laws havedifferent requirements. These additionalrequirements range from separateexecution of arbitration agreements tospecial prints for the arbitration clause.13Parties are often encouraged to use theexact words of the arbitration clausessuggested by the arbitral institution thatthey choose.3. The post dispute agreement should bevery detailed to cover the different ethicalclashes that are common in internationalarbitration. A very succinct and familiarexample is the differing opinions counselhave on pre-testimonial communicationwith witnesses. A scholar recounted that:‘An Australian lawyer felt thatfrom his perspective it would beunethical to prepare a witness; aCanadian lawyer said it would beillegal; and an American lawyer’sview was that not to prepare awitness would be malpractice.’It should be noted that in somejurisdictions, it is common practice toprepare a witness. This of course showsthe differing opinions and how a clash ofthis seemingly minor opinion might beused by a ’guerrilla’ to delay or frustrateproceedings by constantly challengingand disputing ethical differences.4. On the selection of arbitrators, it will bebetter to have a sole arbitrator, selectedand appointed by the ICC to ensure fasterdecision making and prevent the constantand unnecessary challenges faced by thearbitrator which may delay proceedings.5. With regard to experience, the counsel andarbitrators to be appointed should haveno time constraint and vast experience incase management.13 Commercial Arbitration in Nigeria: Law & practice (Second Edition) P 192w w w.kennapar tners.com7
Understandably, and as a result of thesemblance between arbitration and litigation,it is advised that some of the judicial powersand privileges (as a Judge is a King in his ownCourt) granted to judges should be accordedarbitration panels. Due to the contractualnature of arbitration, even the laws thatparties may subscribe themselves to willingly,may result in the parties autonomy by usingexpressions such as ‘the parties are free to.’or ‘unless otherwise agreed by the parties.’.This freedom appears be too wide in someinstances because if one party is recalcitrant,the freedom which was intended to easethe proceedings may be employed as a toolto frustrate the proceedings. However, it issuggested that this freedom is a compensationfor the lack of a right to appeal the substanceof arbitral awards. With respect to Attorneys/Lawyers, it would be preferable if the“gladiator” acts of brazen Showmanshipdisplayed in the Courtroom often to earnprofessional fees should not be entertained inarbitration proceedings.The International Bar Association alsoprovides Rules of Ethics for InternationalArbitrators. Although the provisions arenot generally binding to all internationalarbitration or conciliation proceedings,parties may include a certain clause to bebound by the provisions of the Rules. TheRules cover, Acceptance of Appointmentas Arbitrator, elements of bias, duty ofdisclosure, communication with parties, fees,duty of diligence, involvement in settlementproposals, confidentiality of deliberations, andthe Fundamental Rule instructing Arbitratorsto proceed diligently and efficiently toprovide the parties with a just and effectiveresolution. The binding clause provides theconsequence(s), which are removal fromposition as arbitrator on the panel andforfeiting remuneratio
8 Günther J. Horvath, Stephan Wilske, Guerrilla Tactics in International Arbitration, International Arbitration Law Library, 2013, ISBN 13: 9789041140029. Stephan Wilske, ‘Arbitration Guerrillas at the Gate: Preserving the Civility of Arbitral Proceedings when the Going Gets (Extremely) Tough’,
1.1 Using Tactics in Practice 2 2 Tactics for Availability 5 2.1 Updating the Tactics Catalog 6 2.2 Fault Detection Tactics 6 2.3 Fault Recovery Tactics 10 2.4 Fault Prevention Tactics 16 3 An Example 19 3.1 The Availability Model 19 3.2 The Resulting Redundancy Tactic 21 3.3 Tactics Guide Architectural Decisions 22 .
tactics and discuss the range of tactics identified by research, as well as their effects on various outcomes. Impression management tactics Research has identified a range of IM tactics and has found several ways to classify these tactics. The simplest distinction views IM tactics as either verbal or non-verbal (Schneider, 1981).
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The Wildland Fire Suppression Tactics Reference Guide is designed to . supplement courses that teach tactics in the Wildland Fire Qualification System. It can be used by the beginning firefighter to learn basic tactics as well as a review of fire suppression tactics for the advanced firefighter.
Negotiation tactics can work to strengthen the relationship or can be used to intimidate, discourage, anger or upset the other party. Tactics can be skillfully planned or just happen in the course of a negotiation. Tactics that are intended to intimidate, surprise, or tip the power balance are labeled in this reading as "Adversarial Tactics". .
"GUERILLA" CONVERSATIONS: THE ROLE OF INFORMAL PEER COLLABORATION ON MA RHETORIC AND COMPOSITION STUDENTS' LEARNING AND DISCIPLINARY IDENTITY by Barrie E. McGee, B. A. A thesis submitted to the Graduate Council of Texas State University in partial fulfillment of the requirements for the degree of Master of Arts
CONFIDENTIAL - GCL Buy Flows - Guerilla Usability Testing Results - Ilona Posner - Aug 23, 2015 3 TOP IMAGE The large action image at the top was enjoyed by the sport fans participating in this study, "Amazing image!" [5] Copy inside the image - The copy was not visible and often missed. [High]
Managing unethical behavior in organizations: The need for a behavioral business ethics approach DAVID DE CREMER * AND WIM VANDEKERCKHOVE ** Abstract Issues of morality and ethics have increasingly become more important in organizations and business settings. Traditionally, these issues of ethics and social responsibility in business settings have been discussed and commented on by .
