§ 6. Discussions

Paolo Marzolini - I think, there is a myth in international arbitration which touches upon these techniques that Xavier mentioned. And one of these techniques is when the parties are forced to discuss some points of the merits during the case management conference. Often, this is not the right movement to discuss deeply the merits, because it is far too early. It is not that lawyers are lazy. It is not that clients are lazy. It is just a myth. It is almost impossible to deal with that early in the proceedings. So, I think, the techniques are very well, we welcome the techniques but as

Umut Tuga - Getting the extra 30 days is kind of also a norm right now. So,…

Prof. Dr. Ziya Akıncı - We were just talking about the clients’ expectation…

Dr. Xavier Favre-Bulle - I think the compromise which is been found by many…

Dr. Michael W. Bühler - Maybe just a quick point on budget which is obviously important for the clients. Establishing a budget is a real challenge at the beginning of the case because you do not know the case. As Xavier said, you put in a short request form, you have not seen most of the documents, you have not spoken to the witnesses, and you do not really know how complex this case is going to be, and I think what is important is when you do give the client a budget, you build as many assumptions as possible. This budget is for no more. Then, 2 rounds of written submissions, no more than 3 witnesses. No more than 1 expert. Whenever one of those assumptions changes, it gives you a chance to talk to the client. Most clients will accept this if they are reasonable. Initially, it was 100, suddenly turns out to be 200, and when you come at

Participant 1 - I want to congratulate the organizers of this conference, a subject which is really addressed. And I have to say the conference was even more interesting than I thought it would be. So, it is precisely because it brought many different aspects on this concept of expectation. And I would have to say Paolo in particular by dissecting the subject and breaking it down into different aspect was particularly useful, and one thing that he has mentioned the diversity of elements that come into, I think it is also perhaps over touched on it. The diversity of clients, and especially the client organization, most of our clients are companies and the culture of the company is very important. To what extent does the general counsel control the message and to what extent does he or she give access to the sources of information, which I think one of my best examples was a construction company where the general counsel appointed for the case, an assistant who was our contact person, and whenever we needed some information, this person was a lady organized that we got to the right person, the contract manager on a project in Saudi Arabia, by the time of the arbitration arises, is in Thailand, and has no intention to look at these problems. So, you need somebody with

Participant 2 - Thank you. I want to add my thanks to the panel for tackling a very sensitive but important topic. I have one comment and one question. The comment is we at [a law firm] had a very enlightened client who paid us to do an audit of their case before they filed their statement of claim with free access to all the documents, all the witnesses, a suite of offices. In fact, we were prisoners for a couple of weeks in order to do a very honest assessment about whether they should file or whether they shouldn’t base on outcome. You know, as best predictions as we could, and I don’t know why that’s not done more often as an investment. It’s one thing to trust and share information. But really to be tasked with auditing is very helpful, and I suggested that thereafter to others. My question is this. Do you think there is an appropriate role for a tribunal for the arbitrators to ask the counsel at important stages in an arbitration for what their legal costs are for transparency to put out in the open where the parties what’s racking up on each side, separate from

Speaker - Sure I mean, on the first point, obviously very helpful, because I think like the one of the new things will be sized the mock arbitrations and with the mock arbitration is generally too late to sort of for the parties to realize that they do not really have a strong claim. I mean, all of a sudden, they see in front of a tribunal. I mean, it is a mock arbitration, but still, they know they see that their witnesses are not doing that well. They do not really have a case and then it sort of is already too late because, it is generally run before the main hearing. On the second point, I would say yes, obviously like for you know, certain parties, like they know what they are paying but for the other side’s costs, like sometimes like at the end of the hearing, like you know, you get the cost submission and then your client all of a sudden says what is this on the other side, right? I mean, again, you tell them potentially you could be you know, on the hook for that to pay that. So maybe there is a valid point to explore that and to do for the parties to think about settlement because sometimes it is not that big of a claim and then you just run it for years and incur expenses.

Dr. Michael W. Bühler - If I make a comment on the comment and then the question…

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