ICC Arbitration Debate on Arbitrator and Counsel from same Chambers

At an interesting debate on Tuesday (14 June 2011) hosted by Linklaters there was a clear feeling that whilst UK practitioners would be confident that there was no perception difficulty with counsel and arbitrator from the same chambers, the same could not be said from an international perspective.  The topic is very topical especially in light of the ICSID Solvenia decision where a party was prevented from using counsel of its choice.  That decision has been widely criticised and, essentially, not followed in a later ICSID decision, Romania where the tribunal regarded the Slovenia decision as a sanction for the failure to make proper disclosure (of the identity of counsel) in a timely fashion. 

There was consensus at the debate that early disclosure was desirable, indeed essential, in order that any issue could be dealt with at an early stage and before time and cost were wasted.  The tip that appeared to have near universal endorsement was that there should be a running (i.e. regularly updated) “cast-list” identifying counsel engaged by any party.   John Beechey of the ICC Court said that the ICC was encouraging tribunals to adopt this practice.  Equally, John made it clear that:

(a) the ICC Court would back tribunals robustly if there was any attempt to derail an arbitration by a late and tactical engagement of counsel from the same chambers as a member of the tribunal;

(b) that it was the UK that needed to get its house in order rather than the rest of the world being made to understand a peculiarly UK phenomenon ; and

(c) that the ICC, at least, had no appetite to make all appointments to a tribunal as a route to avoid any potential conflict.

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