Arbitration service providers often seem to handle parties, especially in-house counsel, with gentle kid gloves. A good example is any “roundtable of in-house counsel”, which is now as common at arbitration conferences as children’s tables are at weddings.
Just like at weddings, the adults occasionally wander over to check on things and ask, “did you like the arbitration? Wasn’t it good!” Then they go back to ignoring the little ones until someone starts to cry.
Not so with John Beechey. The President of the ICC Court of Arbitration wants parties to know they can come to him with any complaints about arbitration, but they won’t be babied if they do.
As reported by Mirèze Philippe last week here on Kluwer Arbitration, Beechey recently kicked off a Paris conference held to launch the ICC’s Guide for In-House Counsel and Party Representatives to Effective Management of Arbitration by directing some frank words at parties that fail to take advantage of tools available to make an arbitration more to their liking.
I was at the Paris conference and found Beechey’s candor refreshing. Since he was in Florence recently for an ICC seminar, I asked if he could repeat what he had said in front of a microphone.
The audio can be downloaded here: John Beechey on party complaints about arbitration.
He starts by directly addressing parties: “you have called our bluff; now it is our turn to call yours….”
Beechey explains that among the changes made in the 2012 revision to the ICC Rules in order to respond to user comments and to complaints about time and cost in arbitration in particular, was the introduction of a mandatory case management conference at the beginning of the proceedings. Parties may be invited to participate and, indeed, are encouraged to attend. He says that while he will always listen to anyone’s complaint, among the first questions he will now ask is whether the party concerned expressed any views at the case management conference, or even attended it.
“By all means complain, and if it’s our fault, we’ll sort it out. But if it’s something over which you had control in what you call ‘your case’, then put it right. Take ownership. It’s no good complaining about the arbitrators, or complaining about the institution, if the principle cause of your complaint is said to be an attenuated process, when you put up your hand at the outset and said this is what I wanted.”
Tough talk for sure. But this toughness shows respect for parties and the role in-house counsel can play in an arbitration.
If you are an in-house counsel with responsibility for managing arbitration anywhere (not just a case before the ICC), then I invite you to lend John your ear. It may be the most useful two and a half minutes you can spend before an arbitration gets fully underway.
If, however, you are someone organizing a conference on arbitration, then I invite you to do something else: stop sitting us in-house counsel at the children’s table.