June 01, 2017

Global Litigator: Double-Hatting in International Arbitration

Frederick A. Acomb and Nicholas J. Jones

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You are defending the respondent in an international arbitration administered by an institution headquartered overseas. The arbitrator is a lawyer at a prominent law firm there. Midway through the proceedings, the claimant gives notice that it has retained a new lawyer on its counsel team.

The new lawyer is from the same country as the arbitrator and the administering institution. You review her résumé and are shocked to discover that she is the vice-chair of the very institution where the case is pending. You read the institution’s rules and learn that she sometimes has the unilateral power to select arbitrators for proceedings administered by the institution.

Before you call your client, you consider the likely reactions:

What?! The arbitration institution is acting against me? The vice-chair of the institution is sitting at counsel table for my opponent? I didn’t agree to that! Who would ever agree to that?

Your firm drafted the arbitration agreement. Why didn’t you warn me that the arbitration institution permits this? Had I been warned, do you think I would have agreed to naming that institution?

The claimant’s lawyer must have advised his client to retain the vice-chair. Why didn’t you give me that advice? Let’s retain the chair of the arbitration institution as our co-counsel! Can we do that?

You scour the institution’s rules for anything that might have put you on notice that the vice-chair could serve as counsel for a claimant. Finding nothing, you call your client.

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