Do I Need to Engage Arbitration Counsel?

Written by Team Farallon

  • Farallon Law Corporation
  • May 18, 2023

Well, the short answer is that it depends.

Generally speaking, even though it is cheaper to handle an arbitration case by yourself, because of the unique and often challenging nature of arbitration, parties should consider hiring arbitration counsel to represent their interests. This article will discuss the role of arbitration counsel and the benefits of hiring one for arbitration proceedings.

Role of Arbitration Counsel

Arbitration counsel are experienced and qualified legal professionals who specialise in representing parties in dispute resolution, particularly arbitration proceedings.

A good arbitration counsel should also have experience in various forms of dispute resolution, like litigation, mediation and negotiation, to ensure that your dispute is resolved using a multitude of methods towards achieving speedy and cost-efficient resolution of your dispute. Their role is not just to represent you against opposing counsel at the arbitration, but also to guide, advise and represent clients throughout the arbitration process.

The scope of work of an arbitration counsel would include:

1. Assessing the merits of a case:

To start, the arbitration counsel assesses the merits of the case by conducting a comprehensive pre-arbitration case assessment. This involves several crucial steps.

First, the counsel evaluates the strengths and weaknesses of the client’s legal case, including potential claims and defences. This assessment helps the counsel identify the critical legal and factual issues of the case and the evidence necessary to support the client’s position.

Secondly, the arbitration counsel evaluates jurisdictional and enforcement issues that may arise during the arbitration process. This helps determine the appropriate forum for the arbitration and the procedural rules and laws governing the process. It is likely that the counsel needs to consult legal teams from other jurisdictions, e.g. where the adverse party is located, where the assets are located, or where the harm was caused, in order to determine whether there are any jurisdictional or enforcement issues which may arise to defeat success in the arbitration.

Thirdly, the arbitration counsel envisions the opposing party’s likely or actual position and evaluates its strengths and weaknesses. By anticipating the opposing party’s arguments and evidence, the counsel can formulate counter-arguments and evidence to strengthen the client’s position.

Lastly, the arbitration counsel advises the client on whether to initiate an arbitration and the potential risks involved. As part of the case assessment, the counsel will estimate the costs of arbitration and determine whether it is financially feasible. This advice includes a comprehensive analysis of the financial implications of pursuing arbitration, including administrative and legal fees, expert fees, translation costs, and estimated arbitration costs.

2. Guiding clients through the arbitration process:

An arbitration counsel is a legal professional with vast experience in managing arbitration proceedings and guiding their clients through the process. Arbitration procedures can be time-consuming and complex, making it challenging for parties to proceed without the assistance of legal counsel. The arbitration counsel will assist their clients in drafting arbitration agreements, which are contracts that provide for the submission of disputes to arbitration. Arbitration counsel provide comprehensive assistance to their clients at every stage of arbitration, including:

  • Filing a request for arbitration or answer to a request
  • Helping clients gather evidence to support their case
  • Preparing written submissions with supporting evidence
  • Analysing the opposing party’s submissions and evidence to identify weaknesses in their argument
  • Evaluating arbitration awards to determine whether they are reasonable and enforceable

By leveraging their knowledge and experience in arbitration, an arbitration counsel can help their clients effectively present their case and maximize their chances of success.

3. Preparing and presenting evidence:

The role of an arbitration counsel is to gather and prepare evidence to present to the arbitrator(s) during the arbitration proceeding. Similar to a trial, arbitration allows parties to present witness and expert testimony to strengthen their arguments. In the discovery phase of an arbitration, which may allow for limited and informal discovery, counsel can depose witnesses. Seasoned arbitration counsel can utilise oral hearings to present evidence and cross-examine the opposing party’s witnesses and experts to collect valuable evidence for their client’s case.

Arbitration counsel also assist their clients in securing competent experts and relevant witnesses. They help experts prepare their reports and assist witnesses in preparing their statements. During oral hearings, arbitration counsel prepare witnesses and experts and conduct direct, cross, and redirect examinations. In addition, the arbitration counsel advocates for their client’s interests and presents arguments on their behalf during the arbitration proceeding.

4. Enforcing arbitration awards:

When a party refuses to comply with an arbitration clause or fails to pay an arbitral award, it becomes necessary to seek the help of an arbitration counsel to enforce your arbitration rights. In such cases, arbitration counsel may file a court pleading to seek enforcement of the clause or award. Additionally, an arbitration attorney can assist in contesting an arbitration award, if necessary.

Benefits of Hiring Arbitration Counsel

There are several benefits to hiring arbitration counsel, including:

Knowledge and expertise: It is not uncommon for one party in arbitration to have greater experience with the process than the other. For instance, a large corporation may have dedicated counsel who are familiar with arbitration and may maintain a list of arbitrators who tend to favour corporate interests. If you find yourself facing a corporate counsel who is well-versed in the arbitration process, it may be advantageous to have an equally experienced counsel on your side to level the playing field.

Efficiency: Arbitration procedures can be complex and time-consuming, especially without assistance from legal counsel. An experienced arbitration counsel can help guide you through every phase of the process, from filing a request for arbitration to analysing the opposing party’s submissions and evidence. This guidance can save you time and effort, as well as minimise the risk of making mistakes that could harm your case.

Representation: Crafting a persuasive argument in arbitration may prove more difficult than anticipated, particularly in cases that involve intricate legal issues or statutes. However, having a counsel by your side can be invaluable in building a compelling case that is grounded in both fact and law, thereby increasing your chances of achieving a favourable outcome.

Enforcement: An arbitration counsel can assist their clients in enforcing arbitration awards, which can be particularly important in cases where the losing party is not willing to comply with the award.

The purpose of hiring an arbitration counsel is to ensure that parties to an arbitration proceeding have the necessary legal expertise and representation to protect their interests. If you are involved in an arbitration proceeding, it is important to consider hiring arbitration counsel to protect your interests and ensure that your rights are fully represented.

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