BARRY
LEON
ANDREW
MCDOUGALL
&JOHN
SIWIEC
commercial disputes. The amendments reflect the evolution in
arbitration law and practice since
the ICC rules were revised in 1998.
The new rules (2012 Rules) will
take effect and apply to arbitrations that commence Jan. 1, 2012.
A focus of the revisions is the
reduction of time and costs related
to arbitration. Two noteworthy
additions to the 2012 Rules are
provisions addressing disputes
involving multiple parties and
multiple contracts, and provisions
for an emergency arbitrator.
In an effort to achieve a more
holistic approach to dispute settlement, the ICC published the 2012
Rules with its amicable dispute
resolution rules (ADR Rules),
which provide for mediation and
other forms of alternative dispute
settlement.
possible and refers to Appendix
IV that sets out numerous
examples of case management
techniques for controlling time
and costs. These techniques
include bifurcating proceedings,
limiting the length and scope of
written submissions and
informing the parties that they are
free to settle all or part of their
dispute through any form of ADR
at any point.
To encourage arbitrators to
render timely awards, Article 27
requires that the tribunal inform
the parties of the date by which it
intends to submit its award to the
ICC Court.
The International Chamber of
Commerce (ICC) launched a
revised version of its arbitration
rules in September to better serve
users of international arbitration.
ICC’s arbitration rules are
regularly used in international
Reduced time and
costs of arbitration
In order to increase efficiencies in the arbitral process, the
2012 Rules provide for updated
case management procedures.
Article 22 addresses the conduct
of the arbitration and provides
that the arbitral tribunal and par-
ties “shall make every effort to
conduct the arbitration in an
expeditious and cost-effective
manner” and that the tribunal,
after consulting the parties, “may
adopt such procedural measures
as it considers appropriate” for
effective case management.
Multiple parties,
contracts, consolidation
The 2012 Rules provide comprehensive guidelines for dealing
with multi-party and multi-con-tract arbitration. These are significant changes from the 1998
ICC rules which only addressed
See Holistic Page 13
Conferencing requires special preparation
What is witness conferencing?
Witness conferencing is a
novel method for taking testimony from opposing witnesses
on common topics and issues at
the same time. Expert panels in
Canadian environmental hearings can be viewed as a form of
witness conferencing. In the
international arbitration field,
the technique is increasingly
being used for the testimony of
fact witnesses.
While courts follow the con-
ventional process of witness
examination (direct examina-
tion, cross-examination and re-
direct), arbitral tribunals are
not restricted to this process.
The rules of the major inter-
national arbitration institutions
provide arbitral tribunals with
flexibility in dealing with the
presentation of witness testi-
mony. For example, the Inter-
national Bar Association’s
Rules on the Taking of Evidence
in International Commercial
Arbitration are widely followed
in international arbitration.
Article 8. 3(f) of the rules pro-
vides that the arbitral tribunal
may, upon request of a party or
on its own motion, vary the
conventional order of proceed-
ing, including the arrangement
of testimony by particular
issues or in such a manner that
witnesses be questioned at the
same time and in confrontation
with each other.
counsel should be alert to assist
the tribunal in designing a format
that is appropriate for the parties
and issues under consideration.
This will usually involve one of
the following forms (or a combin-
ation thereof ):
each witness’s testimony tends
to be shorter because there is
less need to set up witness testi-
mony and remind the tribunal
of the evidence given to date.
Credibility
Witnesses, both fact and
expert, are more likely to give
truthful testimony (or less likely
to exaggerate) when there are
other witnesses present who can
immediately question the veracity
of their statements.
How does it work?
There is no standard format
for “hot-tubbing.” As a result,
(i) Tribunal leads
In this form, the tribunal leads
a discussion on a particular topic
among witnesses from different
parties. Counsel are allowed to
ask questions usually after the
tribunal’s questioning. This form
of witness conferencing requires
a significant amount of preparation by the tribunal and a good
understanding of the issues
(often from reviewing witness
statements or expert reports)
before the hearing begins.
Gus Richardson is pleased to offer his services as an arbitrator and
mediator throughout the Maritimes and Ontario from his Halifax
practice, Ad+Rem ADR Services. + With over 20 years litigation
experience at all levels of courts in Nova Scotia and Ontario, Gus
is also a Nova Scotia Small Claims Court adjudicator. Gus brings
those skills to his practice as an arbitrator and mediator in labour,
insurance, personal injury, commercial and condominium disputes.
(ii) Counsel leads
In this form, counsel lead the
discussion by examining on
agreed topics. This can involve
cross-examining an adverse witness and, where appropriate,
turning to your own witness for
rebuttal. When testimony of all
witnesses has been exhausted on
a topic, counsel move on to
examine on another topic and the
process begins again.
Focusing complex evidence
“Hot-tubbing” can be especially effective in arbitrations
where there are highly complex
factual and technical issues and
both parties intend to rely on
expert evidence. Witnesses “in
conference” can effectively confront each other’s evidence on
the spot. In contrast, traditional
examination methods can muddle the arbitrators’ understanding of the issues especially
where there are large numbers
of witnesses and it can be days
before the contradictory evidence of an expert witness’
opponent is heard.
control over how their clients’
evidence is presented. “
Hot-tubbing” can also impact on the
choice of witnesses as some, especially experts, may perform better
on a panel than others. However,
if your arbitral panel is keen on
the concept, you may have to
bend to their inclination. In that
event, you may wish to remind
the panel, when the “hot-tubbing”
rules are settled, of the caution in
Hunter and Redfern on Inter-
national Arbitration (5th ed. at
para. 6.217) that witness confer-
encing should not generally be
used as “an alternative to cross-
examination of individual wit-
nesses by parties’ counsel.”
Arbitration counsel should
think ahead about how to use
witness conferencing to their
client’s advantage. Witness con-
ferencing can reduce hearing
time, cost less and lead to a better
informed arbitral tribunal. The
free flow of information at the
hearing may better persuade your
arbitral panel. However, if each
party is to have a fair opportunity
to present its case, counsel have
to fully agree the ground rules for
witness conferencing with the
arbitral tribunal well in advance
of the hearing. n
What are the benefits?
Time/efficiency
www.gusrichardson.com
phone 902.422.6729
email gus@gusrichardson.com
Considerable time and costs
can be saved over the course of
a hearing when evidence on
topics is presented simultaneously by all relevant witnesses.
Evidence is less repetitive and
Counsel preparation
Witness conferencing requires
special preparation for counsel
and witnesses. It is particularly
important that clients and key
witnesses understand the process and what might occur during the hearing.
Many trial lawyers will be
uncomfortable with witness conferencing and the resulting loss of
Randy Pepper is a mediator and
arbitrator with ADR Chambers,
chair of the Marketing and Communications Committee of the
Toronto Commercial Arbitration
Society and a barrister in Toronto
who acts on a variety of international and domestic mediations
and arbitrations.
