How Can I Sign Mississippi Arbitration Agreement

How to document type sign arbitration agreement mississippi

[Music] good afternoon everyone and thank you for joining us today my name is shan greyer and i am a co-founder of cadron together with my colleague maria ahmed caribbean adr initiative it is a non-profit organization whose objective is to inspire caribbean nationals to use adr a viable outcome where disputes occur today's webinar is the last in our series and we will be discussing document management and arbitration in the context of arbitration proceeding document management is associated with the process of collecting and presenting factual evidence and is largely a party driven process with the arbitral tribunal usually having limited involvement during this session we'll be asking our experts to share their respective experiences and perspectives on the topic document management though an important part of the arbitral process is not the sexiest or most interesting of topics to make it a little more relatable we're going to be addressing the issues using a case scenario our panelists will then consider the issues from the perspective of various players in the arbitration market which we hope will not only facilitate discussion but provide a broader perspective on the various issues so without further ado i'd like to introduce our panelists we have catherine simpson she has served as an arbitrator in multi-party uh international disputes and has conducted virtual hearings over the past 10 years catherine has been involved in over 30 international commercial and investment arbitrations she frequently writes and lectures on the topic related to investor state arbitration katherine will be speaking from the perspective of arbitrator in the webinar we next have francois lasalle francois is the chief executive officer of the bvi international arbitration center responsible for the overall growth management and operations of the institution the bvi arbitration center is an institution established to meet the demands of the international business community for a neutral impartial efficient and reliable dispute resolution in the caribbean and the americas he will be speaking from the perspective of the arbitral institution next we have hafet hafez he is the president of a co and a co-founder of delos dispute resolution he currently serves as an independent arbitrator but has previously acted as counsel in disputes across a wide range of sectors and relationships he will speak from the perspective of council and last we have camille she is an independent tribunal secretary and a new york qualified attorney who focuses her practice on international commercial and investor state arbitration she worked as a legal fellow at new york university's office of the general counsel and she will be speaking from the perspective of the arbitral secretary so we just want to go through the facts of the case scenario which we're going to be using for today's webinar so we have a french company who has leased an oil drilling rig to a trinidadian oil company for 550 000 us per week after two months of operation the trinidadian company stopped using the rig it claims the rig was defective and not fit for purpose the trinidadian company is claiming a refund of 4.4 million being the amount paid to the french company and loss of profits the french company denies the claim despite their best efforts a settlement is not possible the contract includes the following arbitration clause and given that we have invited francois to join us we have used the bvi arbitration center model arbitration clause and so for the purposes we'll be using the bbi arbitration rules okay so the first topic we're going to be looking at is document submission by the parties so the negotiations have failed the trinidadian company wishes to file a notice of arbitration pursuant to article 3 of the bbi arbitration rules council for the trinidadian company together with its in-house council are discussing the logistics of submitting its notice including the extent to which the documents it intends to rely upon should be submitted into evidence at in this early stage let's move over to francois francois do the bvi arbitration rules make provision for the submission of documents at the beginning of the process um thank you sean um yes so the short answer is yes um and in you know the notice of arbitration is is a specific document so we don't have a template for it it needs to contain it needs to contain certain things um like the arbitration agreement the contract or the legal instruments out of which the dispute arises but article 20.4 the rules states that the claimant may elect to treat its notice of arbitration referred to in this original article 3 as a statement of claim uh providing that the notice of arbitration also incorporates everything so you can add um reliance documents um in your notice of arbitration um you know as an institution you know you see and and and the others will hopefully agree um you you see different cases now the rules of the bvi is you're very flexible so they traditionally allow parties and terminals to to to flex the process uh to to meet their needs and requirements um and and this is what makes them modern and and many other institutions have similar rules uh based on the uncentral model you know what is important to realize is whether parties actually know what they're doing um and and you know sometimes it's really good for parties to to provide those documents very early on uh when they experience an international arbitration when you know when they've gone through that process a number of times um but sometimes it's better to to to wait for the arbitrate for the terminal to provide some directions about document production so that you end up with a complete mess um so the short answer was yes the the rules are flexible enough to to empower parties to do this um the real question is um you know should they do that every single time you know probably not i mean this is a case-by-case type of decision and thanks francois and that um gives us a a very convenient transition to hafez um in terms of disclosing documents at the early early um part of the process is there any benefit benefit to filing a shorter notice of arbitration with documents submitted into evidence at later phases of the process or in this instance what factors would you think we would take and can determine whether or not to produce documents at this early sorry to disclose documents or submit documents at this early stage of the process well thanks sean and uh thanks to you and baria for the invitation um if you'll forgive me i'll um given that i'm wearing my council hat here i'll start with the typical cancer council answer which is it depends um and then when you go further it really it really is a question of so on the one hand what francois mentioned about experience but i think also about strategy and about how much you know of your case and some of the things you may want to take into account of the following if if you're in a straightforward payment dispute for example and you know that there is really isn't a case uh to be met uh by opposing council then probably what you want is to put your case up front in full so the arbitrator or the tribunal knows what they're faced with and you save time along the process conversely if you're in a situation where you've had to file your notice of arbitration urgently because you need certain relief but you haven't had a chance to do a full due diligence in the case you'll be very hesitant to put in a rafter document that you haven't analyzed fully haven't considered their implications fully especially knowing that under the bvi rules there's going to be a statement of claim later on and you'll have a chance to develop your case and i'll let francois comment on how long one should expect between the notice of arbitration and statement of claim but that time is going to be precious thanks suppose that that certainly gives us um some food for thought in terms of factors that council can take into account when trying to decide the best um time to uh disclose their documents and submit their documents into evidence in terms of ensuring that those documents are helpful um camille what are some of the practical steps that parties can take to ensure that the documents that they they submit into evidence help the tribunal to understand their case okay uh thanks sean for the for the invitation to you and varya um so above all out of uh really any method used organization is really key especially for document heavy cases um so in my experience the most common method i've seen to for getting documents to tribunal is to put everything on a flash drive um and in my perspective this is really a best practice because it allows the tribunal to easily travel with documents or back in the old times before we could before coved and they can also easily locate the documents during virtual hearings um and in addition to using flash drives in that regard um one thing i found particularly helpful um is to implement hyperlinks within all submissions um particularly in any memorials because this ensures that when a tribunal is accessing relevant documents and looking for supporting evidence they can immediately find it they just need to click a link and it immediately appears it's not a practice everyone uses but it's one that has been tremendously helpful for someone particularly in my role and it's also important if there are quoted portions of the documents within the text of a memorial so if the tribunal wants to make sure that a quote hasn't been taken out of context that it's actually supporting the argument made it also ensures that they can find the document and if it's overly burdensome to hyperlink memorials hyperlinked indexes are also very helpful um so with a description of each document with uh the organization system used um and these turned super helpful for me towards the end of arbitrations when i get instructions from a tribunal that says oh i remember the claimants referenced x in a document but i can't seem to find it i can't seem to locate it having the ability to search through indexes when it doesn't seem to be in the memorial or doesn't seem to be fully elaborated in the memorial has been really helpful uh and one final aspect to it that uh i really urge the parties to consider too is um the role of the tribunal secretary isn't always established at the beginning so um i found in many of the arbitrations i've worked on that i got brought in at a later stage so i got brought in right before the hearing started or even after the hearing started when the tribunal realized it needed more support so in those cases the tribunal secretary has an immense amount of documents and memorials to catch up on so any form of organization is really essential to uh helping someone like me in my role thanks thanks for that camille and and now i'm going to move to catherine and i'm from the arbitrators perspective we um heard hafez say some of the things that from a council you'd want to take into account in terms of the arbitral tribunals perspective do they have a preference as the time um in the proceedings when documents should be exchanged by the parties you know i think that there's a preference which first you're going back to what francois said it it has to happen at a time that's consistent with the rules and you and the bvi rules are very flexible on that at any time really as the tribunal shall determine so helpful and supportive but doesn't quite you don't get the answer directly from the rules so the next step for me is it's at a time that enables the parties to prove or disprove or discontinue their cases at the earliest possible moment earliest possible moment that also ensures that each party has a full and fair opportunity to present its case with the hope that the procedure will only happen one time so you're going to what half has said about early production along with the notice and the brief response of course at a minimum i think what an arbitrator needs to see there is the information that will help the arbitrator or the tribunal establish whether there are any conflicts of interest now that that's a really key point with with those very first evidentiary submissions but after that of course you are going to have a statement of claim and a statement of defense and in the statement of claim the claimant is going to hopefully submit all of the documents that it has and will rely on to prove its case um but we'll also make indications about you know what additional evidence it might be seeking or you know maybe not but the respondent will respond and often in that exchange itself the parties together have already independently produced everything that they need to but if not after that and of course this this would be pursuant to a calendar set up before this stuff even happens anyway but after that it's helpful for the parties to get together and decide first together if they can agree on who is going to give what which piece of evidence to whom it's wonderful if the parties can agree on that themselves and if not then to submit a a joint request to the tribunal with their arguments in favor of that evidence and arguments against often in the form of a stern schedule or a redfern schedule thanks catherine uh we're now going to remove we're going to move to the topic of disclosure requests so we're back to our scenario the tribunal has now been constituted the chair emails the parties with the view to scheduling the first case management conference in her email the chip sorry the chair sends a draft agenda to the parties and invites them to add additional items for consideration she also suggests the use of the iba guidelines on taking evidence council for the french company together with in-house council are considering what additional items they need to have included in the agenda in-house council has advised that there are several items of correspondence and technical documents in the trading company's possession relating to the operation of the oil rig by the trinidadian company which may be helpful to their case when the parties negotiated before the commencement of the arbitration in-house council asked the trinadian company for these documents the trinine company refused because the documents were irrelevant and or confidential the french company believes these documents harmed the trinidadian companies case and this is the reason they are refusing in in its cost-benefit analysis the french company estimates the cost of securing the production of these documents at approximately fifteen thousand dollars with a ten percent chance it will yield valuable result valuable results hafez is the benefit of document production worth the cost and what factors do you take into account when you're trying to consider whether or not to make production requests that's a vex question you're asking so maybe we'll start with some maps from if i remember correctly the mountain dispute is four and a half million roughly now when we're saying that there is a 10 chance of a valuable result you could presumably quantify that at about 450 000 if you compare that with 15 000 clearly it's worth it but that's not usually the way the thought process works the i think that two things you want to consider when you're thinking about document production one is do you need documents from the other side and when you thinking about need there are two ways of thinking about it there is i actually need the documents to build my case or i want to put the other side in an embarrassing position from which i can draw adverse inferences but then the other aspect of this question is clearly if you're going to ask for documents you're going to be asked documents in return and you've got certain parameters to how the exercise takes place even by saying red phone or stone schedules are going to be a question about how large is the fishing net or what uh what approach is taken i i imagine camille and catherine will comment uh in more detail about that and then there's a final consideration which i will probably let them comment about as well which is what are you entitled to seek so they're the usual parameters of privilege and so on but there can also be a debate about are you entitled to ask f r documents that fundamentally go to the other side's burden of proof thanks thanks are you done okay yeah yeah yeah okay yeah yeah so um sorry about that yeah thank you for that and i know that document um management in arbitration tends to be a party driven process but francois i wanted to ask you is there a role for the institution in reducing the cost of um the exchange of documents and the use of the rules and how do the rules um assist the parties to make this an as cost-effective process as possible so so when when it comes to the rules um that place the the the the responsibility on the arbitrator the arbitrators um have to sorry i'm trying to to find the article the arbitral tribunal in exercising its discretion sure conduct the proceedings so as to avoid unnecessary delay and expenses and to provide a fair and efficient process um so so so the the the duties on the terminal to to work with the party so as to minimize cost and and and to ensure that the proceedings are are fair the institution um and i use as saying on this one it depends um we can do as little and as much as parties and the tribunal requires now from our perspective um every time documents are submitted and so on we we index them we hyperlink them we host them in a very secure document management platform and we the indexing is is a document that allows us to send it to people and they can access the secured document so you only have one document that all the parties and the terminal can access directly on our systems so we do all of this they may decide not to use it and we cannot force them to use it so our rules then do not entitle us to forcefully push parties or the tribunal for that matter into a very specific protocol that would be highly efficient what we do is as part of the conversations we we do have with the tribunal and the parties we we tell them that this is available we tell them that we've got tools that are available to them as part of the package that would facilitate document production and exchange and so on so forth we also i mean we we've mentioned the the red fan schedule and maybe the audience doesn't know what this is i mean it's very it's a very simple piece of paper that has you know what are the documents that claimant for example is requesting why they're requesting them um the respondent objection and and basically the tribunal decision as to whether uh these documents are admissible or not and it helps with document production if you if you're not using that then then you you kind of have a problem most parties will use something like that but if they don't know what they're doing we can provide those templates um similarly we can provide templates for document agreements um to to by default uh validate the authenticity of the documents that will be provided or false documents that are not in english to be translated in english by default and things like that so we can help the parties um streamline document production either by supporting with our technology or just our our skill set but this this is a service that we can only offer not push um onto on two parties and the tribunal thanks francois um now if you recall uh in this case scenario when the chair had produced uh had sent the um agenda she had suggested the use of the iba guidelines in this case scenario the french company actually prefers the prague guidelines which are more consistent with the civil law approach camille um what are the broadly speaking differences between the iba guidelines and the prague rules and how do you think you'll benefit the parties in terms of deciding which is more appropriate for their case sure so at its most simplistic the difference between the iba guidelines and the prague rules can be viewed as as you mentioned uh the distinctions between common law and civil law procedures are an adversarial system versus um more of an inquisitorial system so under the iba guidelines uh requests for documents production can be a little bit more broad that um the rules allow under article 3.3 they allow parties to provide sufficient detail to narrow down a category of document which is a lot more expansive than what you necessarily expect in the civil law system additionally the iba guidelines provide procedures for a tribunal to weigh on objections so if a party objects to document requests made by the opposing party it must state its objections in writing to the tribunal and within that determination the tribunal can ask for the requested documents to be produced and if it's of an extraordinary circumstance the tribunal can decide it shouldn't view the document and can appoint an independent expert to rule on admissibility as you might imagine this can drive up costs and slow down efficiency of a case pretty quickly at the same time the iba guidelines also provide for seven grounds for which the tribunal can exclude evidence uh so in this case um one of the reasons given is that it's an unreasonable burden to produce the requested evidence um so the tribunal might weigh the cost um if it were significantly higher than the fifteen thousand dollars for example uh with the chance of success um and decide that the cost is too high to justify um the production of the documents similarly the trinidadian company had also raised um issues of lack of relevance to the case as well as confidentiality issues which also are grounds that a tribunal can uh exclude evidence based on the iba guidelines um so ultimately what can be taken from this is that with the iba guidelines they allow for less expansive discovery than what you would necessarily expect in a u.s court system or other common law jurisdictions but it's significantly more expansive than uh the civil law approach which is what you find under the prague rules uh so under the prague rules document requests must be to specific documents there aren't necessarily guidelines for rejecting document submissions but within the within the rules the tribunal is given a more proactive role in document discovery and fact finding in general so the tribunal can control the procedure for document production but can also request documents itself um so in terms of a balancing act some arguments can be made that the prague rules allow for um more cost effectiveness and more efficiency but um really it depends a lot on the attitude of the tribunal in this regard because you can have a common law tribunal under the iba guidelines who says no to absolutely everything and you can have a civil law based tribunal applying the prague rules who decides it needs to know significantly more about document production so ultimately i'd say when deciding between the two it ultimately comes down to who's on the tribunal and their attitudes towards each set of rules and also the comfort of the parties as well thanks camille and catherine from an arbitrator's perspective in your experience um to what extent is document production um genuinely useful and necessary to the tribunal you need to unmute catherine that's a great idea i'll do that next time it's it's genuinely useful to the parties because often the the documents and the materials that you need to prove your case happen to be in the other side's filing cabinet so in that sense there there are documents that you as a claimant or as a respondent would not be able to access on your own without some kind of uh procedure for it um that being said um the the import i think you're asking the importance of the entire procedure for the tribunal where the parties are saying i need this group of evidence because i need this to prove my case counter-argument no it's not necessary argument yes it is no it's not tribunal decision just to you know put it shortly and you know that that entire argument is i mean you you can see how relevant it is by reference to perhaps um simply the fact that tribunals do not cite to those arguments in their awards so as far as um shaping a tribunal's view of the case whether a party argues very strongly that one kind of document is needed while another is not i i don't think that that really has a measurable effect on the award but what i think tribunals and arbitrators are really looking at is how how relevant and material are these requests to um to the establishment of the case and not just how how burdensome it is but also is this necessary can the party prove this point with these other four documents that it's already given us is it is it duplicative no nobody needs 10 or 20 files explaining the same thing and so i think often tribunals will will work hard to reject those kinds of claims especially for because of the different cost implications of them for the parties thanks catherine now i know that um the exchange and document requests is usually a fairly contentious part of the process in some instance and everybody has their war stories um from from that case from hell and we wanted to just to encourage some discussion ask if anybody first of all had any questions that they wanted to ask on the points that we've raised so far and also if anybody wants to share their own experiences on issues with document production so feel free to um either leave your question or chat or if you um raise your hand then we can um choose persons who want to share anytime can i um put the panelists on the spot do any of you want to share some of your own stories well i'm guessing catherine has been on the opposite side of this and so has come here which is when you've got to put together a document request that run into the hundreds of pages and those are not the ones i favor but they do happen yes there am i off me yes okay um there was there was actually there was a um a publicly uh reported such event where um the an arbitrator received one of those uh 200 or 500 page document request and emailed the tribunal secretary very general message saying what do you think now as an arbitrator and as a former tribunal secretary i know exactly what that arbitrator meant by what do you think he didn't mean how would you determine each and every one of these documents requests he meant how many document requests do i have to determine out of this 500 page document because you see these these 200 500 page long requests come with 270 zillion requests in them and you have to go through and see if all of them are still live because the parties is showing in the spirit of their cooperation will show every request that they've made to one another and whether they have been able to come to agreement or whether it's been withdrawn so it still stays in the document so what i think that that arbitrator was asking is do i have five requests to determine or do i actually have 70 or 200 how much time do i need to set aside to address this uh this very large uh requests document and and francois again i maybe slightly put you on the spot but i know that certainly with um the issues that have arisen due to coved everyone is relying more on technology to administer arbitrations so do you think that um in recent times persons are relying more heavily on technology for um the management of documents well they have to i mean you know you you don't ship big core bundles of documents you know on the other side of the world so so everything has gone uh digital now i mean you know you used to get a flash drive here and there now it's it's all hosted um well from what i've seen um and and i think you know i think that that's a positive thing um i think you know kavid if there's one silver lining for for arbitration um i think kovid will have created some long-term efficiencies and will have forced people that would otherwise have been quite reticent to embrace uh certain aspects of or certain tools uh technology tools um i've just had to to accept them and and to start using them um and i think you know going forward um we we will see more technology embedded in in the process even though we may have in in-person hearings i think we'll see less and less big bundles of documents you know we'll we'll see more electronic presentation of evidence we'll see more of this and i think it is a great thing not only for the trees but for you know the the ease of use the the the security that you can build around it um and and and the portability of of of the documents themselves um so yes that that kovid um accelerated the change i think the stock the change started before um but but i think it has indeed accelerated over the last um 10 to 12 months and and similarly um and you know let's forget document production for a minute even video conferencing has evolved quite drastically i mean zoom you know used to get an update every nine months or whatever um you know they're dating that platform significantly with security features every two or three weeks now and i think those platforms are i've now become more more business because you know they've been critical to um enable people to continue you know for business continuity uh over the last month and i think this is going to stay like this this progress uh in in the technology all around to operate virtually uh is here to stay and people people will continue to use that yeah and franco you made a good point about um the updates uh to make sure that the technology that we're using um is secure and certainly um security of tech him undocumented an issue that we have to give um consideration to um camille when you spoke earlier you talked about the international standard in terms of providing thumb drives um with with documents and other ways that um documents are submitted to the tribunal and and the parties um would you be able to just give us an idea of some of the security measures that are frequently used to ensure that um those documents um maintain their privacy sure of course and i mean a big portion of what francois is saying with the move to a more virtual setting cyber security measures are becoming increasingly more important so within the thumb drives what i've observed at least is several law firms seem to have proprietary software to password protect it to ensure that um party or that third parties couldn't necessarily access the confidential documents required um it did cause some issues in one of the arbitrations i'd worked on since the proprietary software only worked on pcs and not max so um in terms of best practices make sure it works for everyone since that caused significant issues um but i would also refer people to look at the um new york city bar cpr cyber security protocols that came out at the end of 2019 they really provide a good way to ensure best practices in terms of password protecting in terms of well i guess a little less now but what to do when traveling they talked about the need to put on privacy screens for example which um is something even at conferences i'd seen arbitrators open documents and everyone behind could see exactly what it was so privacy screens are also really necessary but i i would definitely recommend checking out that report um to just ensure that the best practices are being used and staying safe yeah and of course the number one rule don't send your password with the thumb drive exactly yes all right so we move on to the next um phase of our case scenario um the trinadian company wishes to rely on documents produced by its resident engineer who manage the operation of the least oil rigs unfortunately the documents were placed in storage and cannot be accessed due to the restrictions relating to the pandemic the trinidadian company does not know when the current restrictions will be lifted but by all indications they are likely to last for another six to eight months in this instance um what steps if any can counsel for the trinidadian company take to address this issue at the case management conference and i think we'll start with catherine if you wanted to address this issue oh you need to unmute catherine sorry now i'm going to have the the computer problem of the day so the party wants to rely on a document that the party has in its own possession but the party itself cannot access it what is that party to do at the case management conference of course the the parties could create some sort of schedule proposals for when things are going to be due but of course you also don't want a case to be delayed and delayed a d delayed especially for a piece of evidence that a party itself owns and that the party itself needs to rely on so those parties might want to consider how else they prove what they need to prove because it's i mean it's wonderful tv but there is rarely a smoking gun in a proceeding or a case but often the the arguments that such a smoking gun would produce are confirmed by lots of other contemporaneous evidence and especially witness uh documents and presentations so at the at the case management conference the parties could go into could also just begin there talking about are we going to have witnesses and how are we going to use them and then and now i will pass back to sham thanks catherine and her first um catherine made reference to this the the age-old smoking gun that everyone um were is trying to secure um in terms of from a council perspective how do they tend to to try to deal with these issues or what experiences um given um issues where documents cannot be accessed temporarily um there are multiple thoughts i'd like to be able to share one is on the smoking gun point um you can obviously not say 100 on anything but by and large no doubt there are no smoking guns um i've come across situations in cases where document production has been helpful um if nothing else than to put the other side on the spot but that's procedural tactics uh arising from doctrine production rather than document production itself then the next consideration is um going back to what catherine was saying how else can you make your point indeed in this case the training agency and dodging company might want to put forward a witness statement by the engineer conversely if i were acting for the french company i'd be up in arms i'd be saying wait a minute your claimant you're saying that you want to delay this case and you want to rely on documents that you can't access you don't have a case you're just buying time to put pressure on me and build up my costs and i'd be saying no no no we're getting on with this and if you can't make your case and withdraw it so it's it depends it's not never a satisfactory answer but um it really comes down to what hat you're wearing what are you trying to achieve and what you have at your disposal to achieve it and catherine from the perspective of the possibility of challenging awards and parties arguing that they haven't had an opportunity to produce their case do you tend that these issues tend to come up when you're dealing with um situations where parties need additional time to secure documents well um actually i think that that is one of mentally that is always at the forefront because due process is among the only ways to undo an arbitral award so the question of is my is my decision here going to hurt the outcome over here is uh is an essential uh consideration so you know and it really depends uh how much uh how many different kinds of opportunities can you give a party to prove its case and to meet its burden of proof but yes that that key due process question has has each party been given a full or fair opportunity to present its case is at the forefront can i jump in here please sean yeah um so if i remember correctly your scenario at the very start it said the seat of the arbitration is tortola in the bvi and the bbi were covered as a jurisdiction in the delos guide to arbitration places but um it was only assessed in 2018 and we have a ten point uh criteria assessment um and at a time it came out with green traffic lights on all criteria now i'll let francois comment about uh whether that's still the case today i'd imagine it is but really what i was getting at is and this is the question for whoever on the panel wants to take it given the attitude of bvi courts to uh arbitral awards uh or arbitrations yeah to awards in cases seated in the bvi to what extent is it really a concern if an arbitrator exercises a firm hand francois did you want to share um uh tim from a bvi perspective what what attitudes are generally taken so the the the commercial courts as as a long history of supporting arbitration and staying core proceedings in favor of arbitrations even before uh the most recent um enactment of the arbitration act and even before the arbitration center was created by said um arbitration act so um i would trust that an arbitrator could be um as forceful as possible you know as as reasonable i would say um here in the bvi um but but but this is not a fight i mean at the end of the day it is an arbitration it's about getting to the right results and producing an award that hopefully will not get challenged um and so you know in this scenario um you you it would be a tricky case management conference i i think there would be a lot of back and forth what kathryn said you know are there any other ways that you can actually make that point um i would argue you know these guys probably should have waited a bit you know a bit more before sending the notice of arbitration so as to secure those documents and if they do know what's in the documents that they can use a witness statement to make their case so there is really you know no option for the tribunal to to make the right choice um you know what what we haven't discussed is that french and canadian companies may have other contracts for other rigs they may not absolutely hate each other and the french company might be perfectly willing to stay that arbitration for eight or nine months until they can actually retrieve those documents um so so there are loads of different scenarios that that could be at play um and and you know um for the parties and the arbitrator to to make the right call on that specific um set of documents um at this point in time and i think this also highlights the importance of choosing a seat with um an updated um arbitration act and ensuring that you do have a jurisdiction where the courts have a supportive attitude towards arbitration because of course this is going to be one of those issues where um you're relying on the discretion of the of the courts and it may well be if you're in a uh jurisdiction that isn't particularly friendly to arbitration that it it may go in in a way that the parties um that they don't intend um camille did you want to share some of your your experiences um in relation to this uh area um well for me uh it hasn't come up yet though i know with a lot of the lockdowns in south america that this issue has arisen for some colleagues but most of the points raised by francois were actually issues that i'd been thinking about in terms of this hypothetical just in regards to the feasibility of getting the documents despite lockdown um what other support so really friendzone covered it very well okay okay thank you all right so we moved um to our next topic which is documents at the hearing the parties complied with the directions issued by the tribunal and the matter progresses to a two-week hearing during cross-examination one of the witnesses by council for the trinidadian company um during cross-examination of one of the witnesses by council for the trinidadian company he relies on a document which was included in the hearing bonding bundle but not previously disclosed to the other side or the tribunal francois um do the bbi arbitration rules address this matter and what provision has been made for issues relating to disclosure oh we can't hear you francois i didn't want catherine to feel alone and so the the bvi rules um are are supportive of this article 27.3 um says at any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents exhibits and other evidence within such a period of time as the arbitral tunal shall determine it's vague enough to be highly flexible um and and it's it's it's you know putting the decision on the tribunal uh to to make those decisions um on a case-by-case basis so so the rules are not um prescriptive uh if you wish and and this should happen sorry uh i was finished and then decided i wasn't um and and this and this um is still within the constraints of article 17 um which says that the the terminal within its this is discretion shortcut the produce the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the dispute and it's also making sure that the parties are treated with equality um and that they are presented at every single step of the proceedings to or presented with a reasonable opportunity to present their case so there are constraints as to what the tribunal can do but some emphasis on efficiency um for for the arbitral proceedings thanks francois and herbes from council perspective what course of action can or should the french company take in dealing with this matter [Music] so here i'm wearing my respondent hat and i think it comes down to what strategy or you're trying to adopt um at one level uh you could say oh it's a big issue they're relying on a document that's not um on the record and so on at a very big picture level and catherine will contradict me if she if she thinks differently but the very big picture level is not going to be an issue um it can be it's going to be resolved so then as council the question you you want to ask yourself and that really is a determination on the spot is do you know the document do you know what it stands for do you think your witness can handle it if so then try and score a point with that if not or you're not sure ask for time out if it's a problematic document then maybe um make it a possible incident you might want to have it set aside you might want to just say you know what let's uh you're going to object you're going to anyway sort of gain time there and at that point you might say let's put that document aside for discussion with the tribunal we can maybe come back to it later um i doubt you'll get much more mileage out of that except if it were a document that you for which you requested production you got you had an objection it wasn't production wasn't ordered and suddenly it appears at this stage at that point you might get a lot more mileage out of it but it's going to be a snap decision and in more likelihood your course your best course of action is going to be object time out the document will be put aside and you'll come back to it later thanks and camille are there any soft laws which um can provide some guidance to council on how to deal with these issues uh well turning back to the iba rules and the prague rules uh within the iba uh article 311 echoes a lot of the language um that francois mentioned was in the bvi rules um so it allows um or sorry it was article 310 so that the torino at any time before an arbitration concluded can request any party-produced documents and so under the iba rules there's at least a little more flexibility in terms of uh the documents coming in at any time though obviously there is a preference um for the um the documents to come in towards the beginning of uh the arbitration within the prague rules there's uh significantly less flexibility as um would most likely be expected that um it even goes as far as an article 4.4 saying that a party can only request documents be produced at a later stage in exceptional circumstances and within that they have to show that the requests couldn't have been made at the case management conference and within the rules themselves uh within article 4.1 there was already an emphasis on submitting documentary evidence as early as possible so uh there's a little bit of guidance in both but nothing super specific thanks camille and if i may oh sure go ahead francois just very quickly rebounding on that um i just wanted to highlight that with the rise of virtual arbitration if you go through the various protocols of practice notes that have been published not only by us but by other people um the the rules really um uh are are pushing parties and terminals to only accept and admit documents that have been uh shared before the hearing like you cannot come up with a new e-document during the hearing in a virtual arbitration it's just not going to cut it so you know there is also you know a change there in terms of what people will perceive as acceptable or not um you know between uh in-person hearings and and virtual hearings thanks um and katherine um what sort of approach or attitude do tribunals take to this sort of action um that um the trinidadian company engaged in here well uh you know going back a step often it is a it can be a total surprise to everyone in the room so um there's there's a bit of case preparation that uh that you there's a bit of case preparation groundwork that you have to have laid to even be able to see the problem and i'm sure that uh camille does this a lot for me personally i make a tribunal usb and it's it's hyperlinked and it has a ridiculously long table of contents of everything that's been submitted exhibit number name of document hyperlinked to that document and i use it and i update it throughout the case because and often before hearing the parties will jointly submit a hearing usb that already has a nice table of contents it's their entire bundle it's wonderful um but it might not contain my correspondence with the co-arbitrators so i tend to use my usb and rely on theirs and what what happens sometimes is a witness is being examined and uh they'll say you turn to exhibit r28 and they'll start reading through parts of it objection r28 only has two pages and the witness is reading from page four so you you discover in you can discover in the middle of a cross-examination that um that perhaps the documents between one and the other are not actually consistent and that the parties have just now learned of it so and it's a problem for council as uh hafez was uh referring to because in that situation the council doesn't hasn't had the opportunity to argue whether the document would have been admissible uh from the get-go anyway so the tribunal has a few options before it of course yeah have a pause let the parties determine uh what they think that they should go forward but if they can't come to an agreement well the tribunal can cancel the hearing which is probably very expensive and will be very difficult to re-establish a hearing or to see if the parties might agree to continue the hearing and continue with the cross-examination on all of the documents that are on the the hearing usb subject doing that however without prejudice to any argument that the entire examination may need to be thrown at the end or that the parties may need a further opportunity to submit responsive evidence or witness statements on the specific document so it happens and um and you can work with it fortunately and have you and i guess we can put this question out to camille as well and um catherine um do you find that this issue arises very often and when it does happen have you had any experiences where hearings have had been cancelled because of these sorts of issues arising or yeah oh i've i've never seen a hearing canceled over it and i've i've only seen it happen once but it happens so and yeah um i've never seen a hearing cancelled over it i think the scenario that catherine brought up of an exhibit having two pages in their reading from page four that has come up occasionally but um nothing serious enough to warrant canceling a hearing okay all right thanks for that um we now having ended this uh scenario um that's the end of the um issues that we want to deal with um we just wanted to open up to any questions and then we'll ask each of the um presenters to give any final thoughts that they they want to i'm having uh dealt with all of the issues if you want to open the floor if anyone has any questions you can type them in the chat or you can just um click on the raise your hand and then um barrio will invite you to to ask your question teams our presenters did an exceptional job and there no questions whatsoever these are the trials and tribulations of choosing a very good panel you have no questions okay so um camille can i can invite you to um share any final thoughts on on the issue of document management sure um so thank you again to sean and faria for the invitation to speak today i think this was a an interesting event and very uh v ry different from other webinars i'd seen too having the case scenario was uh really helpful um for me i just want to re-emphasize organization and the need for it in terms of producing documents to the tribunal it really makes trivino secretaries lives significantly easier thanks camille catherine well yes uh and this was this was wonderful and i'm grateful to be here and i hope that someday we all get to do a case together and you know see um see one another in action in particular at the bvi iac thanks catherine hafez going back to the overall topic of this webinar with my council hat i would say there's no shortcut to knowing your case so do your homework go through your documents um obviously within a reasonable measure you're not going to overturn every single stone if it's a small value case but conversely you might go way beyond if it's a very high value case but really there's no shortcut to doing your homework and i'll echo what um camille and catherine was saying that i've enjoyed this and thank you and before i give francois the last say we have a question so i'm just going to put it out to everyone and then you can make your respective comments what about arbitrators who are who are not brought up in the digital age of flash drives and hyperlinks are we out to see and it's funny because this was an issue that we were discussing um just before we started the session so um tribunal i'm sorry presenters what are your views on this and i think this is this is one that's a legitimate concern and i think it it means we may well have to do training on how to use the technology um so i i could start a quick answer to this one i think you know if you're already not on the boat yes you will have to swim a bit but there are many people with you that can help you reach the boat um and and and honestly there are tools out there that are really intuitive uh if it's a bvr iec arbitration or you know let's face it an institutional arbitration in one of the other mainstream arbitration centers um case managers will be there to help the arbitrators do the right thing and doing the right thing is you know not difficult i mean you know we talking hyperlinks and flash drives i mean if you have a computer someone will probably put together um those you know list of documents and instead of being printed you'll be able to click on the link and the original document will come up so it is absolutely from a user perspective uh the technology that's out there is really intuitive and really easy uh it's just you know paper you can click on and providing that the institution helps you as an arbitrator come up with the right directions very early on in the process in terms of taxonomy document production um you know document agreements configurability agreements and so on so forth once all of this is done um it becomes really easy to to to handle so um i i think the technology is really an enabler on this one and we can always print everything if if you end up being at the arbitration center that's you know obviously always an option um but the technology on this one is really an enabler um and not something there to prevent people from um you know carrying on with business and i think while you know um we sometimes joke about i think it's a serious issue because you can't have this sense of overwhelm there is so much um technology out there you're trying to figure out which one should i use did i go to zoom should i use to go to meetings and it's it's difficult you know my daughter always says you know just go google go look in youtube mommy youtube solves all problems if you want to know how to link something go to youtube they'll tell you how to do it and um i think if you look at of you um there are other you know more established um organizations and resources that you can use and certainly that's the one of the reasons why having these sorts of um sessions are helpful i know that some of the references that were referred to hafez has usefully um copied them into the chat so please feel free before the end recession to click on it and download it so you have a copy of it um did any of the other presenters wanted to address that question uh yes i wanted to add something it is perfectly okay to hire camille and she did not tell me to say that ahead of time but um you know making making hiring decisions so outsourcing the parts of the case that you can outsource are really not controversial nobody i don't think that anybody looks at an arbitrator and says wow that is some amazing document organizational skills right there no they're they're waiting for they're looking for somebody who can uh make the correct jurisdictional decisions and and make the correct and enforceable award and so it's important that i think people understand that it is perfectly okay and valid to hire people who can assist in your arbitrations um i mean i guess the parallel would be i'm a homeowner and but think there are a lot of things that come with being a homeowner and i do not do my own plumbing i always hire a plumber to do my own plumbing it doesn't make me any less of a homeowner and but likewise as an arbitrator hiring the the appropriate staff to make sure that you're able to do your work in the current technology settings that we have is is totally acceptable and normal to be encouraged thanks catherine um camille hafez did you want to make any comments on that sure um well so for me i was going to add the caveat to um my comments that i didn't want to appear too self-interested but thank you to catherine for making the plug um but it's a really good argument to hire a tribunal secretary um because often with people especially from my generation who grew up with technologies and are well versed um it often becomes our role anyway to help out with those aspects um so and i know for me i worked on an ad hoc arbitration recently and um there wasn't the institutional support there for tech so a lot of the informal tech guru role fell to me as tribunal secretary and that's a role i think so many of us are willing to take thank you and we seem to have another question so i'm going to share it um does the panel have any suggestions as to how best to handle email documents that sometime can include all sorts of irrelevant information and may contain pages and pages of unnecessary information all right katherine i'm you yes trying to be polite and prevent everyone from uh suffering the background noise what what i do personally is i save every bit of it the email save it by the date the um the additional the files that have been submitted i save it if if i'm the arbitrator and it's been submitted as part of the case it it becomes part of the case file that that's there's no other magic um than that for me sadly yeah i think this is one of those um you know part of the package necessary evils that if a party doesn't produce the entire email then they risk um being accused of you know manipulating the evidence or or not producing the the accurate document but then at the same time to have to wait for an entire document um just to get a few points can also be a bit difficult and i think it emphasizes the importance of ensuring that documents are paginated and also um you know finding um ways to make reference to the documents that you want and where it is when you're preparing your case and i think catherine made some valid points about hyperlinking so that when you need to find a document or you need to find a particular section of it you can you can find it a lot easier with your own thumb drive did anybody else have any comment sorry go ahead francois this this is basically the the main issue with document production i mean document prediction is not an issue until you get a large amount of documents that are not concise and presented in a coherent way right so so this is where it starts to hurt or when documents are not distributed in time to to give the right opportunity for a response this is where document production document management becomes an issue in arbitration um and and i would like to say that depending on where you are um and and you know what rules or or the arbitration act that governs your arbitration um if it is obvious that a party has tended documents that were not necessary that they won't rely for their case that have increased the the time um and and and the expenses required to formulate a response um then there is a scenario where cost sanctions by the tumor may be appropriate um and and and and and that happens um i i would argue that the juvenile should should have that conversation with parties very early on um you know in even before the case management conference you know if you start messing up with you know hundreds and hundreds of you know documents that you're not going to rely on and it's going to add to time and cost of the arbitration there are going to be sanctions uh and appropriate sanctions related to that um and and you know that's part of the the good case management of a case and it's funny that you should mention that francois because the next question actually addresses the issue that you have raised and it asks there is a balance to be drawn between the relevance of the documents and the cost of the arbitration can cost be used as a control factor to determine relevance think two of the arbitrators time and effectiveness exactly so i think you've probably addressed that um before in in your presence did anybody else want to make any comments on on the issue of costs as a control factor i was looking at the bvi ic rules to see whether there was anything on um the conduct of the parties being taken into account in ordering costs but i can't seem to find anything but first of all maybe i'm mistaken no no no we're not being specific on that sp you know on on costs associated to this kind of scenario not this kind of scenario specifically but just general language about the tribune will take into account the behavior of the parties no yeah um i'll go back to article i think it was 1701 which which is basically asking the tribunal to conduct the proceedings um in in in a way that is efficient and cost effective and so on so forth and then they've got tools to enforce that one thought i'd put out there and this is more just um for discussion purposes is when you're thinking of documents right now we've been looking at it from the point of view of volume and costs and uh how to manage that but there is a they can occasionally infrequently but they can occasionally arise a situation where party a puts in a document relies on a point say on page two of a 25-page document party b replies on page two and then at some point you start looking at the documents and you realize there's a hugely relevant point at page 10 onwards and nobody's raised it at that point you've got query as a tribunal what do you do with that um now i'm going a bit beyond the scope of the questions here but i just want to put it out for thought catherine did you want to okay all right thank you very much um have as i think that ends um the questions that we've had um fran so i don't want to leave you out i know i gave the other um panelists an opportunity to give their final thoughts so i'm going to end by i'm giving you a similar opportunity well thank you very much for the invitation i think i'm i'm the only one that has then thank you yet and i do apologize for that better late than never uh and it's been a pleasure um with you know the other participants and i hope this was um helpful to the audience and i look forward to working with you guys um in the future all right well i want to take this opportunity to thank everyone um for attending i also want to thank our participant and our panelists um they graciously gave up their time and of course what we do would not be possible without um persons within the industry supporting us and giving up their time to help us address some of the issues that frequently arise in dispute resolution last but by no means least i want to thank barya um she is the technical guru who um i'm fairly certain if there's a titan question she probably wouldn't be able to answer it unlike me who unfortunately have not quite mastered those skills but still working with youtube to to get there um this while it seems all seamless there is a lot of work that goes um into to making it all happen and and she certainly does that so um thank you very much barya um with that we um wish you a good rest of your day or evening depending on where you are joining us from and uh thank you and keep um please if you get an opportunity do fill out the feedback form it helps us to tailor these sessions and improve them to ensure that we're meeting the needs of the region so we really appreciate if you take a few minutes just to let us know um what's good and what's what can be improved on the sessions thank you very much bye everyone