CHAPTER 13 PROCEDURAL ISSUES AFFECTING INTERNATIONAL ARBITRATION IN THE ENERGY AND RESOURCES SECTORS
| Jurisdiction | United States |
(Sep 2013)
PROCEDURAL ISSUES AFFECTING INTERNATIONAL ARBITRATION IN THE ENERGY AND RESOURCES SECTORS
Partner, Fasken Martineau
Vancouver, British Columbia, Canada
Dominique Gibbens
Partner, Fasken Martineau
Montréal, Quebec, Canada
HENRI ALVAREZ is a member of Fasken Martineau DuMoulin LLPs international arbitration practice group. He has over 25 years of experience and has acted as arbitrator or counsel in over 100 institutional or ad hoc international arbitration proceedings in North and South America, Europe and Asia. He has conducted arbitrations under the rules of the ICC, AAA, LCIA, HKIAC, JCAA, CAM Santiago, and the Netherlands Arbitration Institute, as well as the ICSID, the Swiss Rules of Arbitration, and UNCITRAL Arbitration Rules. He has appeared as counsel in Canadian courts in matters relating to international arbitrations. Henri's arbitration experience includes serving as president, sole arbitrator, or party-appointed arbitrator in a broad range of disputes relating to joint venture agreements, international investment, energy, mining and natural resources, technology, telecommunications, long-term commercial agreements, mergers and acquisitions, insurance, franchise, distributorship, and construction. Henri is a member of the Court of Arbitration for Sport and acted as a member of the Ad Hoc Panel of Arbitrators at the Winter Olympic Games in Vancouver in 2010. He is a member of the Board of Directors of the AAA, a council member of the HKIAC, an alternate member of the ICC International Court of Arbitration, a former co-chair of the Arbitration Committee of the IBA and a former member of the LCIA. Henri is an adjunct professor at the Faculty of Law, University of British Columbia where he has taught international commercial arbitration since 1985. He is also a frequent lecturer and author in the areas of international arbitration and dispute resolution. Henri is fluent in English, French and Spanish and regularly conducts arbitrations in those languages.
DOMINIQUE GIBBENS is a partner at Fasken Martineau DuMoulin LLP. She is a member of the Litigation and Dispute Resolution practice group, as well as of the International Arbitration practice group. Her practice is centered on complex civil and commercial disputes, with a focus in class actions and international arbitration. She has vast experience in various areas of law, including the law of contracts, product liability, consumer protection, banking and financial services, construction and project disputes and public law. She has acted as defense counsel in many class actions in the area of product liability (drugs, health, computers, consumer products, etc.), consumer protection, banking and financial services, and securities litigation. She has represented clients from a wide range of industries including mining, manufacturing, pharmaceuticals, petrochemicals and financial services. In the area of international arbitration, Ms. Gibbens has acted as counsel in many international arbitration matters under the auspices of most of the major arbitral institutions. Recently, she acted as co-counsel for First Quantum Minerals Ltd. (FQM) in a major dispute concerning FQM's mining operations in the Democratic Republic of the Congo (DRC). The arbitration proceedings filed (ICC and ICSID) were instrumental in securing a $1.25-billion (U.S.) settlement on behalf of FQM. She has also acted on behalf of the Quebec government in complex disputes in the area of public finances and constitutional law both before the Federal Court of Canada and the Superior Court of Québec. Her expertise in dispute resolution is recognized in Chambers & Partners' Global Guide. She frequently appears before Québec Courts, both at the trial and appellate level, as well as before the Federal Court of Canada and various arbitration tribunals.
I. INTRODUCTION
Procedure might appear to some to be of secondary importance in international arbitrations, where the stakes are typically high and the substantive issues complex. Procedure can, however, be very important. Although it is true that the underlying facts will generally, at the end of the day, win or lose a case, issues of procedure may affect a party's ability to prove its case, to put forward a particular legal argument or even to put the claim forward at all. As such, procedure can - and often does - influence the outcome of a case. It can often also affect timing and cost. Early thinking about procedure and the various issues that a party is likely to encounter in proving or defending a claim is essential and may prove critical in many international arbitrations.
When a dispute arises, the arbitration rules applicable to the arbitration will typically already have been chosen. While many institutional rules provide for a broadly similar procedure, in general terms, a number of differences remain and the particularities and nuances of each should be well understood by the parties before selecting them. Further, arbitration rules set out the general aspects of how an arbitration will be governed, but they leave considerable discretion to the parties or, absent agreement of the parties, to the arbitral tribunal to determine procedure. Much is left to be defined by counsel and the arbitral tribunal both at the outset of the arbitration, through the negotiation of the terms of reference or a procedural order, and during the course of the proceedings as issues arise. The arbitral tribunal and the parties must determine together the specifics of the process that will be followed (number and form of pleadings, how evidence will be presented, information disclosed, type/timing of hearing(s), evidentiary standards and process, etc.). Parties should expect an international tribunal to respect their procedural agreements. However, an experienced tribunal will be proactive in dealing with common procedural issues that arise at the outset of an arbitration. If the parties have not thought through the needs of the specific case at the beginning, they may find it very difficult to convince a tribunal to reverse a previous decision on procedure.
Before finalizing an arbitration clause or agreement and before triggering arbitration or filing a response to a request for arbitration then, parties would do well to consider the nature of the dispute and all relevant circumstances of their case to determine how to best address procedural issues such as the appointment of the right counsel and arbitral tribunal, what procedural steps and evidentiary rules should be adopted and how to prepare for anticipated procedural challenges. Issues to consider include the following:
• The nature of the dispute - is the claim based on contractual liability? Tortious liability? International law liability? Are there distinct causes of action?
• Who are the parties - are state entities involved? Are there related parties who are not signatories of the arbitration agreement?
• Where are the resources or minerals? What is the place of performance of the obligations of the parties and any other interested parties?
• Are there rights or assets that require immediate protection pending a determination by the tribunal? Will interim relief be needed?
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• What remedies should be sought - Specific performance? Damages? Other?
• Is the jurisdiction of the arbitral tribunal evident or is it likely that there will be a jurisdictional challenge?
• How will the case be proved? Does a party have the evidence to prove its case or will it need to obtain it from the opposing party or third parties? What type of evidence is available? Will the case turn on documentary evidence or the testimony of witnesses?
The answer to these questions and a number of others will inform the choices and decisions of the parties on the various procedural issues which may arise in the arbitration.
In international arbitration, whether commercial or investment related, it is a significant advantage to have experienced counsel familiar with the challenges presented by international arbitral procedure and the subtleties involved. Counsel's experience and advice will be critical in choosing or appointing the arbitral tribunal, in the exercise of a party's discretion and on the various decisions to be made regarding the issues discussed in this paper. Counsel and the members of the tribunal bring with them their respective legal backgrounds and preferences and are likely to rely on these in navigating procedural waters.
It would be impossible to address in this paper all procedural issues that can arise in the context of international arbitrations. Instead, we have chosen to focus on certain key procedural issues that arise in many international arbitration proceedings, and which may be of particular importance in the energy and minerals sectors, namely: the appointment of the arbitrators (A.), document disclosure (B.), evidentiary standards and process (C.), interim or provisional relief (D.), and multiple or parallel proceedings (E.). For each of these issues, we will address in practical terms what a party should know regarding the issue and the impact it can have on arbitration proceedings and offer some suggestions on how to address these issues.
II. KEY PROCEDURAL ISSUES IN INTERNATIONAL ARBITRATION
A. The Appointment of Arbitrators
Our intent in this section is not to address in general the issue of arbitrator selection and appointment, as Professor Catherine A. Rodgers will be addressing this topic in a separate paper and excellent resources already exist on this topic.1
We will, however, briefly consider the topic from the point of view of its potential impact on matters of procedure in an international arbitration and, in turn, on the possible
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outcome of the case. We will look at selection criteria that should be kept in mind in appointing an arbitral...
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