The increasing incidence of arbitral tribunals allowing parties and their counsel to use eleventh hour guerrilla tactics motivates this article.
The authors share recent experiences in cases where, confronted with one side's strategically motivated or otherwise unreasonable late arguments, the arbitrators failed to exercise their authority and responsibility to manage the proceedings. This approach appears to be driven by the arbitrators' exaggerated concerns that the award will be successfully challenged for want of due process and their reputation damaged. Instead, when appropriate, tribunals should be more courageous in using their authority to apply the objective "first available opportunity" test combined with a "legitimate reason" exception to reject late documents. Tribunals can also rely upon other management tools, such as terms of reference/list of issues, procedural calendars, procedural orders and pre-hearing conferences, and costs sanctions to prevent or minimize inappropriate conduct.
BCDR International Arbitration Review