13 December 2017
Last week, Frank Ilett, Graham Nunns, Lexi Boyes and I attended the ICC UK Annual Arbitration Conference, held at the offices of Herbert Smith Freehills in London. An overriding topic of discussion at this year’s conference centred on the view that arbitration has become too slow and expensive and the fear that, to quote a popular current TV series, “Winter is coming” for the industry.
In this context, Frank Ilett, Haberman Ilett managing partner, was invited to join a panel discussing current issues in arbitration from the in-house and expert perspective. Alongside Richard Hill, General Counsel at Shell, and Rosemary Ioannou, of Vannin Capital, Frank considered the key drivers of inefficiencies in arbitration and possible solutions to these issues.
With the in-house perspective presented by Richard Hill, who pointed towards the extended time periods between hearings and awards, and Rosemary Ioannou, who mentioned the effect of continually changing deadlines, Frank presented his perspective as an expert witness, drawing from his involvement in many arbitrations over the last 20 years.
Frank set out two main areas of inefficiency that he has experienced during arbitration proceedings. The first is the disparity between the instructions received by each of the experts, leading to opinions being given on different issues, which often proves to be wasteful both in terms of time and cost.
The second is the current custom that a party is required to submit all its statements of case (legal argument, factual and expert evidence) simultaneously, in the form of a memorial. Frank explained that this left no time for quantum expert evidence to respond to last minute changes in the other evidence or for it to be fully cross-referenced to the other evidence. He suggested that even a week between each of the submissions of factual evidence, technical expert evidence and quantum expert evidence would allow the quantum expert to accurately reflect the latest factual and/or technical expert evidence, making subsequent proceedings in the case more efficient.
Overall, the ICC UK Annual Arbitration Conference was an interesting and informative event, and served as a useful forum to discuss the continued effort to optimise the arbitration process for all involved.