Taming the Guerrilla in International Commercial Arbitration: Levelling the Playing Field (International Law and the Global South)

The book explores the definition and nature of guerrilla tactics in international commercial arbitration. It analyses various such tactics deployed (pre-Covid and during Covid times) and portrays them in a way that enables one to visualise how, and possibly why, they might be deployed. Attempts to codify ethical standards and rules regulating the behaviour of legal representatives in international arbitration are examined. The book covers a range of culture clashes, addresses several elephants in the room, and looks at factors inherent in the arbitral process that create opportunities and increase temptations to misbehave. It considers the remedies and sanctions available in international arbitration and compares them to those available to the courts in civil litigation. In addition to recommendations for future research, the book offers solutions to curb the problem in line with party autonomy and with a critical analysis. “ This manuscript is an essential solutions-based text that not only addresses a comprehensive range of modern-day guerrilla tactics in international commercial arbitration but also offers thoughtful methods to deal with the shenanigans that parties may bring to the arbitral process. ” - Chiann Bao, Independent Arbitrator, Arbitration Chambers and Vice President of the International Chamber of Commerce, Court of Arbitration “ Dr. Ahuja’s book is a thoughtful and highly practical contribution to the study of procedures in international commercial arbitration. It is replete with scholarly analysis, careful treatment of authority, pragmatic insights and policy discussions. Any practitioner or student of international arbitration would benefit from this volume. ” - Gary Born, Author, International Commercial Arbitration (3d ed. 2021) “ Ahighly readable and informative book which identifies and analyses the numerous guerrilla tactics parties may attempt to deploy in international commercial arbitration, the factors which may encourage such behaviour, and practical mechanisms to keep the proceedings on track. Both erudite and practical, this book is a must-read for parties, counsel and arbitrators alike. ” - Prof. Benjamin Hughes, Independent Arbitrator, The Arbitration Chambers “ Guerrilla tactics are a pertinent problem in arbitration. Dr. Ahuja’s well written book not only describes the various tactics in a succinct way but provides extremely useful guidance on how to tackle them. It will be a primary source of reference for every practitioner faced with such tactics. ” - Prof. Dr. Stefan Kröll, Chairman of the Board of Directors of the German Arbitration Institute (DIS) “ Taming the Guerrilla in International Commercial Arbitratio n offers a refreshingly candid and balanced discussion of ‘sharp practices’ in international arbitration. The book collects a wealth of information on guerrilla tactics previously only available in separate survey reports, articles, and guidelines on the topic. It additionally includes a chapter addressing tactics deployed in virtual or remote arbitrations due to the Covid-19 pandemic. The comprehensive research and analysis presented in this book make it a valuable resource to counsel, parties, arbitrators, academics, and those who deliver practical arbitration training. A must-read for those who want to better understand the practices that may lead some to disfavor arbitration and ways the arbitration community can respond to guerrilla tactics to improve the arbitration process for all participants. ” - Dana MacGrath, Independent Arbitrator, MacGrath Arbitration “ From an unreasoned fiat of a wise man who left both sides equally unhappy but resolved the disputes effectively, arbitration has evolved into a full-scale trial before a party chosen tribunal. Its informality and expedition puts in peril the fundamental right of the recalcitrant to delay proceedings. Dr. Ahuja has assiduously articulated the measures, aptly christened Guerrilla Tactics, used to disrupt and derail arbitrations. An indispensable read for the practitioner and an insightful treatise for the policy maker. ” - Harish Salve SA QC, Blackstone Chambers “ This book shines a spotlight on arbitration’s dark arts - guerrillatactics. Dr Ahuja illuminates this shadowy world with excellent (and much needed) scholarship that is practice-based and useful for all stakeholders in arbitration. His examination of the root causes of this problem, recommendations on how to control it, comparisons with litigation practice and suggestions for future research marvellously combine to make this a work that is required to be consulted by all serious counsel, arbitrators, institutions and academics in the field of arbitration. ” - Romesh Weeramantry, Head, International Dispute Resolution, Centre for International Law, National University of Singapore The book explores the definition and nature of guerrilla tactics in international commercial arbitration. It analyses various such tactics deployed (pre-Covid and during Covid times) and portrays them in a way that enables one to visualise how, and possibly why, they might be deployed. Attempts to codify ethical standards and rules regulating the behaviour of legal representatives in international arbitration are examined. The book covers a range of culture clashes, addresses several elephants in the room, and looks at factors inherent in the arbitral process that create opportunities and increase temptations to misbehave. It considers the remedies and sanctions available in international arbitration and compares them to those available to the courts in civil litigation. In addition to recommendations for future research, the book offers solutions to curb the problem in line with party autonomy and with a critical analysis. "This manuscript is an essential solutions-based text that not only addresses a comprehensive range of modern-day guerrilla tactics in international commercial arbitration but also offers thoughtful methods to deal with the shenanigans that parties may bring to the arbitral process." - Chiann Bao, Independent Arbitrator, Arbitration Chambers and Vice President of the International Chamber of Commerce, Court of Arbitration "Dr. Ahuja's book is a thoughtful and highly practical contribution to the study of procedures in international commercial arbitration. It is replete with scholarly analysis, careful treatment of authority, pragmatic insights and policy discussions. Any practitioner or student of international arbitration would benefit from this volume." - Gary Born, Author, International Commercial Arbitration (3d ed. 2021) "A highly readable and informative book which identifies and analyses the numerous guerrilla tactics parties may attempt to deploy in international commercial arbitration, the factors which may encourage such behaviour, and practical mechanisms to keep the proceedings on track. Both erudite and practical, this book is a must-read for parties, counsel and arbitrators alike." - Prof. Benjamin Hughes, Independent Arbitrator, The Arbitration Chambers "Guerrilla tactics are a pertinent problem in arbitration. Dr. Ahuja's well written book not only describes the various tactics in a succinct way but provides extremely useful guidance on how to tackle them. It will be a primary source of reference for every practitioner faced with such tactics." - Prof. Dr. Stefan Kröll, Chairman of the Board of Directors of the German Arbitration Institute (DIS) "Taming the Guerrilla in International Commercial Arbitration offers a refreshingly candid and balanced discussion of 'sharp practices' in international arbitration. The book collects a wealth of information on guerrilla tactics previously only available in separate survey reports, articles, and guidelines on the topic. It additionally includes a chapter addressing tactics deployed in virtual or remote arbitrations due to the Covid-19 pandemic. The comprehensive research and analysis presented in this book make it a valuable resource to counsel, parties, arbitrators, academics, and those who deliver practical arbitration training. A must-read for those who want to better understand the practices that may lead some to disfavor arbitration and ways the arbitration community can respond to guerrilla tactics to improve the arbitration process for all participants." - Dana MacGrath, Independent Arbitrator, MacGrath Arbitration "From an unreasoned fiat of a wise man who left both sides equally unhappy but resolved the disputes effectively, arbitration has evolved into a full-scale trial before a party chosen tribunal. Its informality and expedition puts in peril the fundamental right of the recalcitrant to delay proceedings. Dr. Ahuja has assiduously articulated the measures, aptly christened Guerrilla Tactics, used to disrupt and derail arbitrations. An indispensable read for the practitioner and an insightful treatise for the policy maker." - Harish Salve SA QC, Blackstone Chambers "This book shines a spotlight on arbitration's dark arts - guerrilla tactics. Dr Ahuja illuminates this shadowy world with excellent (and much needed) scholarship that is practice-based and useful for all stakeholders in arbitration. His examination of the root causes of this problem, recommendations on how to control it, comparisons with litigation practice and suggestions for future research marvellously combine to make this a work that is required to be consulted by all serious counsel, arbitrators, institutions and academics in the field of arbitration." - Romesh Weeramantry, Head, International Dispute Resolution, Centre for International Law, National University of Singapore Praise for Taming the Guerrilla in International Commercial Arbitration Foreword Preface Acknowledgements Contents About the Author 1 A Bird’s-Eye View Guerrilla Tactics and their Emergence in International Arbitration Guerrilla Tactics The Deployment of Guerrilla Tactics Background to the Concept of Guerrilla Tactics in Arbitration An Ethical No-Man’s Land The Powers of the Arbitral Tribunal The Continued Growth of International Arbitration Scope of the Book International Commercial Arbitration Institutional Arbitration Versus Ad Hoc Who Are the Guerrillas? Structure of This Book References 2 Fundamentals of International Arbitration Introduction The Nature of Arbitration International Commercial Arbitration The Growth of International Arbitration International Arbitration and Litigation Enforcement Neutral Venue Confidentiality Qualities and Expertise of Judges Versus Arbitrators Number of Arbitrators Finality Costs Flexibility Consistency/Precedents Availability of Expedited Procedure and Express Summary Procedure or Early Determination Procedure Interim/Emergency Relief Conclusion References 3 The Nature of Guerrilla Tactics in International Arbitration Introduction Origin and Development of Guerrilla Tactics Understanding the Notion of Guerrilla Tactics in International Arbitration Recent Surveys on the Topic of Guerrilla Tactics Surveys in 2010 Survey in 2015 Survey in 2018 Survey in 2021 Codification of Ethical Standards and Rules for Legal Representatives The Various Forms of Guerrilla Tactics and their Impact on the Arbitral Process Objecting to the Arbitral Tribunal’s Jurisdiction Frivolous Challenges to Arbitrators Non-participation Failure to Comply with the Arbitral Tribunal’s Orders Witness Coaching Disrupting Cross-examination Ex Parte Communications Abuse of Document Production Anti-arbitration Injunctions and Italian Torpedoes Unethical Party-appointed Expert Witnesses Creating a Conflict of Interest Multiplicity of Arbitration Proceedings Arbitrator Guerrilla Tactics: Corruption and Coercion, Hostile Behaviour, Reporting Back to a Party, Resignation Corruption or Coercion of an Arbitrator Hostile Behaviour by an Arbitrator Reporting Back to a Party Resignation Conclusion References 4 Factors that May Encourage or Facilitate Guerrilla Tactics Introduction Conflict Between Different Legal and Cultural Backgrounds and Legitimate Expectations Due Process Concerns The Phenomenon of Party-appointed Arbitrators The Advent of New Entrants Non-lawyers Acting as Legal Representatives Regulation of Party-appointed Expert Witnesses Possible Perception of Inadequate Sanctions Inconsistent Court Intervention Rules Operating Behind Closed Doors Use of Tribunal Secretaries Engagement of Third Party Funders Over-committed Arbitrators The Absence of Precedents No (or Limited) Right of Appeal Conclusion References 5 Mechanisms to Control Guerrilla Tactics in International Arbitration Introduction Remedies Against Parties and Legal Representatives The Tribunal Arbitral Institutions Courts National and International Bar Associations Remedies Against Arbitrator Guerrillas Challenges to Arbitrators Challenge the Arbitral Award Legal Action Against the Arbitrator Conclusion Appendix: Cost Orders and Interim Measures in Support of Arbitration in Hong Kong, English and Australian Courts Hong Kong Costs Interim Measures England Costs Interim Measures Australia Costs Interim Measures Summary References 6 Guerrilla Tactics in Court: A Study of the Use of Judicial Sanctions in Hong Kong Introduction How Has the Civil Litigation System in Hong Kong Addressed the Use of Guerrilla Tactics in Litigation? Remedies Available to the Courts Remedies Against Legal Representatives: Solicitors and Barristers Remedies for Judicial Misconduct Are There Lessons for Arbitration to be Found in Approaches to Civil Litigation Reform? Conclusion References 7 Curbing Guerrilla Tactics in International Arbitration: A Critical Review of Solutions and Directions Introduction Recommendation 1: Arbitral Institutions to Provide More Informed Model Arbitration Clauses Recommendation 2: A New Set of Ethical Guidelines for Legal Representatives Based on Party Autonomy Conclusion References 8 Concluding Remarks Introduction Summary Case Management: Getting an Early Grip on the Arbitration Regulating Party Representatives Education and Training Suggestions for Areas for Future Research Conclusion References 9 Arbitration and COVID-19 Pandemic: Virtual Guerrilla Tactics Introduction Jurisdiction Challenges Unequal Treatment Inability to Present One’s Case Witness Coaching Cyber-intrusion Risks COVID-19 Itself as an Excuse for Disruption Conclusion References Index