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Justice Talk with Evan Slavitt: From Litigation to Arbitration and Beyond
5 min read
Most people are familiar with litigation from all the TV shows and pop culture references filled with exciting drama. However, not many know about arbitration wherein problems and disputes are settled in a more amicable way. What are the differences between the two? What works better in a commercial and business setting? And most importantly, what lies in the future? We spoke with Evan Slavitt, Senior Vice President and General Counsel of AVX Corporation and former litigation attorney, about his experience moving from litigation to arbitration and his opinion on the evolution of the legal landscape. Evan Slavitt: From Litigation to Arbitration Evan told us that when he started his career, he wanted to immediately gain valuable experience working directly in a court. This is why after graduating from Harvard Law School, he worked at the United States Department of Justice where he was both a trial attorney in Washington as well as an Assistant US Attorney in the District of Massachusetts. Later on, he moved to private practice as a trial attorney for another 25 years, but at this time, Evan was looking for something more in his career. “The problem with being a trial lawyer is it's a little bit like the CSI show — you show up, there's a dead body on the ground, you're just arguing over whose fault it was, and nobody's happy to see you,” Evan explains. “So I decided I wanted to try a job where I could actually make people's lives better and avoid problems, rather than just arguing over who killed the dead body. That’s about fifteen years ago,” he says, talking about the time he grabbed the opportunity to work with AVX Corporation as their general counsel. Evan says that the journey thus far has been delightful. “It's very different from being a trial attorney because if I'm extremely successful, nobody knows because the problem doesn't come up or the problem stays small. And it gives me a chance not just to be productive, but to look at different areas and come up with new ideas, so I've enjoyed it." Efficiency in Arbitration With his extensive experience in both litigation and arbitration, Evan says that he strongly prefers arbitration as a general counsel. He believes that when managed appropriately, arbitration can be faster, cheaper, and more confidential than litigation. “Arbitration is not a switch where you either have it or you don't. Arbitration is more like an article of clothing that you can pick out to fit your company's needs,” Evan tells us. “The key is to make sure that the arbitration clause matches the expectations,” he says. “If I want arbitration to be faster and cheaper, I have to do two things. One, I have to write an arbitration clause that really focuses everybody, including the lawyers down the road while also ensuring that I‘m adhering to my goal of getting a quicker and affordable resolution that is comprehensive but not exhaustive. And two, I have to make sure that both the trial counsel and the arbitrator who gets picked gets that message from me to keep things moving.” He also shares how he ensures that arbitration is done smoothly, “Trial lawyers have a tendency to turn things into trials because that's what they're used to. My job as a general counsel is to keep them on track to understand that as the client, I want things to be faster and I want things to be more efficient, even if it means that they don't do some of the things that they would do in exhaustive five-year litigation,” he explains. This type of efficiency is something that is definitely laudable but to push the envelope further, Evan believes that technology is critical. Technology in Arbitration “From my point of view, the technology in the legal landscape is always understood to be a tool and not a goal in and of itself.” Evan opines as he shares his thoughts on technology in the legal sector. “In other words, web meetings, or even web-conducted arbitrations, you don't do it just because you can, you do it because it either makes things faster, affordable, or more efficient,” he says. This is why whenever Evan sees a new innovation or tool in the legal landscape, he initially asks how it could make the process more efficient for him as a general counsel or for the company as a whole. By doing this, he eliminates tools that may be too complex to be truly useful. “And there have been a lot of new useful things that have come out,” Evan tells us, “For example, I used to sit at my desk for half an hour a day just signing documents as Corporate Secretary. Now with DocuSign, I can save time. That's just a small example of a legal technology tool that has made everything that much faster and more efficient.” With this, Evan says that he can now process documents in just two days rather than two weeks. Aside from this, he also shares another bigger example of how technology has helped him in arbitration. “We had an arbitration with the counterparties in Australia,” he starts, “Now, if we were going to do that the regular way, I would have had to pack up myself along with the witnesses from here in the US, and we would have had to fly to Australia in order to resolve this arbitration.” Obviously, this method would have cost more in terms of time and money. “Instead, we did a digital arbitration through a virtual hearing,” Evan shares, “As a result, my team became better prepared and were more efficient in using their time productively. In the end, digital arbitration helped us resolve the dispute much faster than we would have a decade ago.” With technology at play in arbitration, Evan said that regardless of who won or lost, they were all winners because of how efficient the procedure was. An Exciting Future Ahead Technology’s role in today’s legal landscape, especially in arbitration, is something that Evan is excited about. “I think COVID accelerated something that was going to happen over the next five years. But instead of it taking that much time, we made a lot of progress in a very short period of time because necessity compelled us,” Evan tells us. Despite the excitement though, Evan also warns about the possible pitfalls of technology. “One downside of technology is there's so much more information that is immediately available now, so the question is, how do you manage that?” he asks, “It used to be that when you had a dispute, there were maybe 20 or 30 letters that people actually wrote to each other. Now, there are thousands of emails and other means of communication to go through.” “Luckily, new technologies like artificial intelligence help sort and examine documents to manage these huge bulks of information,” Evan explains, hopeful that the pitfalls brought by the speed at which technology is accelerating the world would also be solved by technology. This type of AI technology is something that Evan says he’s excited about. “As a trial lawyer, the incredible advances in using AI to identify relevant documents in a huge morass of information and to organize those things — that has been a transcendent experience,” he shares. “I still remember going into warehouses with box after box of archives,” he recalls, “Now, the people that I work with can find relevant documents or hone in on a particular point, in less than a day rather than weeks.” Evan has also been sharing his valuable insight as both a general counsel and arbitrator with the Jur product team to help build the upcoming Jur Arbitration Platform. He shares that he’s hopeful about how the platform is shaping up.“I think that the platform is trying to move one step past the traditional convening authorities to make it much more effective and efficient. ” he says.  Evan’s outlook on technology in arbitration is infectiously positive with a hint of warranted caution — just the perfect blend for a future of justice filled with possibilities.

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Will Virtual Hearings Stay in the Post-Covid Era?
Global lockdowns have forced courts and arbitral institutions to adapt and adopt virtual hearings. With the world slowly inching back to the normal way of life, will virtual hearings still be here? To answer this question, we spoke with legal tech and arbitration experts, Sebastian Mejia, Sophie Nappert, and Ben Giaretta, on the prevalence of virtual hearings in a post-COVID world. Sebastian Mejia “What impressed me most about the virtual hearing process was how lawyers worked more effectively and efficiently.” For international lawyer Sebastian Mejia, virtual hearings will be here to stay because of how efficient it is. He shared with us an experience in handling a billion-dollar dispute wherein digital arbitration and virtual hearing were used. In his experience, he said that a hybrid model, one wherein physical and virtual modes are used, is the most efficient. Instead of simply doing the virtual hearing separately from home offices, Sebastian and their team worked in hubs from all over the world. “The virtual hearing process went very well. What impressed me the most was how lawyers worked more effectively and efficiently,” Sebastian said. Sophie Nappert “I think taking evidence online is completely possible. Actually, we've been doing it now for a year and a half.” International arbitrator and co-founder of ArbTech, a digitally inclined community of international arbitrators, Sophie Nappert is aware that there is apprehension in the legal community when it comes to virtual hearings.  “This is [one of the] reasons why arbitration, and the courts for that matter, have resisted for so long to take everything online, because even advocates like barristers and lawyers who plead would say, ‘I can't cross-examine, it makes no sense, there's a whole lot of body language, chemistry, and human interaction that you don't even have to speak and you convey information.’” Sophie says. However, she believes that taking evidence online is completely possible. After all, one could also misjudge a lie or truth in person, so doing it online can have little difference. The key here would be ensuring that the process is transparent and fair to ensure that the gathering of evidence during a virtual hearing would be accurate. Ben Giaretta “Video conferencing nowadays is remarkable. It will be surprising to have a case which doesn’t involve video conferencing in the future.” Ben Giaretta, an international commercial arbitrator and Chair of the London Branch of the Chartered Institute of Arbitrators, believes that the pandemic accelerated our access to virtual hearings, thus, it will only continue to proliferate. “The pandemic has accelerated people's access to video conferencing. The fact that we now have this software on all our computers and phones is remarkable,” he says. In its wake, Ben believes that video conferencing will only continue to be part of every arbitral procedure and he believes that it will be part of more future cases. Even more boldly, he predicts that virtual reality may be implemented in the future to really push the boundaries of virtual hearings. The adoption of virtual hearings in a post-COVID era seems to be inevitable. Anyway, we were probably already headed there — the pandemic has only accelerated it. With that, we could expect that virtual hearings will be part of our new normal.
A Glossary of Terms in Digital Arbitration
Are you finding it difficult to understand some key terms and words in digital arbitration? Learn the ABCs of the industry with this glossary of terms. As Jur leads the way to revolutionize justice, we thought that it would be important to provide helpful resources such as this and our smart guide to legal tech terms. Let’s get started! A Advocate: A person representing a party who presents the party’s position, evidence, and arguments to an arbitrator. They may also be known as general counsel, attorneys, or specialists in the given case. Affidavit: A written statement related to the issue that is presented as a sworn document.  Appointment: The process by which an arbitrator or panel of arbitrators is appointed to decide a dispute. Arbitral Award (or shortly “Award”): ​​An arbitration award is a final and binding decision made by a sole arbitrator or an arbitral tribunal, which resolves, wholly or in part, the dispute submitted. by an arbitrator, similar to a court ruling. This discusses the rights and obligations of the parties regarding the case. Arbitral Tribunal: depending on the case, the sole arbitrator or a panel of arbitrators Arbitration: A dispute resolution method wherein parties agree to submit their dispute to one more impartial arbitrator who will make a final and binding decision. Arbitrator: an independent person or body formally appointed to settle a dispute by providing a binding arbitral award. B Bad Faith: dishonest or unacceptable behavior with an intent to deceive or disrupt the procedure. This may also refer to a party’s unruly conduct with respect to the arbitral procedure. Bench decision: An oral ruling or a written ruling read aloud, by an arbitrator after a hearing. Bifurcation: the process of dividing and separating certain issues in a case from the others.  Brief: summary of information, details, facts, and legal principles related to a dispute. C Challenge to Arbitrators: the process by means of which a party requests the removal of an arbitrator from the panel with respect to the arbitration rules and applicable law. Claimant: the party who initiates the arbitration proceeding. Class action: an action wherein two or more parties or claimants with a common interest file a grievance against the same respondent. It is often done to make arbitration more cost-effective for the claimants who usually have smaller claims. Commercial Arbitration: arbitration of disputes involving commercial and business transactions, whether from one business entity to another, a business entity to an individual, etc. Costs of the Arbitration: the fees and expenses incurred for the arbitration proceeding. This includes, but is not limited to, the fees for the lawyers, arbitrator or panel, arbitral institution, experts, witnesses, and other services. Counterclaim: a claim or set of claims made to rebut a prior claim; generally made at the same time as the Statement of Defence. Cross-Examination: the process of questioning a witness at a hearing by the opposing party. D Damages: the amount of money recovered to redress a grievance. Defense: the respondent’s answer to the claims made against them by the claimant; also known as Statement of Defence. Deposition: an out-of-court testimony of a witness which may be considered for discovery purposes later in the process. Discovery: the formal process of gathering information prior to a hearing. This can be done through depositions, document requests, interrogatories, and other means. Dispute: an argument or disagreement between parties; the reason why arbitration is needed. Due process: the proper application of standard procedures to ensure fairness among the parties. E Electronic signature: or e-signature is an electronic symbol provided by a signatory through a tech-enabled and secured procedure that is logically associated with other electronic data. Evidence: documents, testimonies, or other matters that are presented as proof at a hearing. Ex Parte Communications: communications between a party and an arbitrator, without the involvement of the opposing party. F Force Majeure: an exceptional, uncontrollable, and often unfortunate, circumstance that prevents a party from fulfilling their legal obligations. Foundation: the preliminary facts demonstrating the authenticity of a document or testimony. Frustration: a legal principle which excuses a party from fulfilling a contract due to an unforeseen event that renders performance impossible, illegal, or radically different. G Grievance: a claim of a party that details that a term of a contract has been violated. Governing Law: the law upon which a contract is to be interpreted. H Hearing: a legal proceeding before an arbitrator wherein parties present evidence and argument to reach a decision. Hot-Tubbing: is the process of questioning an expert witness while cross-examining them at the same time. I Impasse: essentially a deadlock wherein progress to reach an agreement is no longer possible between the parties. Injunction: an order to refrain from doing a specified act. International Arbitration: arbitration with elements related to two or more jurisdictions (for instance, parties to the dispute based in two different states). J Joinder: the process of bringing a third party into an ongoing arbitration, which generally requires the agreement of all of the parties. Jurisdiction: the authority of an arbitrator to hear and decide a particular issue placed before them in an arbitration proceeding. L Laches: the lack of diligence from one party to make a legal claim, which endangers their opportunity to make said claim. Leading question: preliminary inquiries used on direct examination and/or cross-examination. Lex Contractus: the applicable law in a given contract. M Materiality: the degree of significance of an evidence to the dispute or case. Merits: the substantive issues or the inherent right and wrongs or a legal case, as opposed to procedural grounds. Model Law: a format for arbitration law adopted by UNCITRAL in 1985 and promoted to provide standards and harmonization in international arbitration. N Necessity: the rule that exempts a state from performing an obligation under international law due to exceptional and uncontrollable circumstances. Notice of Arbitration: is a document that signifies a party’s intention to refer a dispute to arbitration and it is given when initiating recourse to arbitration or to join any party as an arbitrating party as well as to initiate recourse in arbitration against any party which is already an Arbitrating party O Opening Statement: a lawyer's first opportunity to present their arguments before an arbitral tribunal, in writing or, depending on the context and the arbitration rules, orally at the start of a hearing. Offer of proof: an advocate’s response to an opposing advocate’s to the admissibility of evidence at the hearing directed to the arbitrator. Opinion evidence: evidence based on the belief or impression of a witness regarding the matter at hand. P Party: Persons, businesses, or governmental entities involved in legal proceedings; this could refer to either the claimant or respondent. Per diem fee: an arbitrator’s daily rate for hearings. Pleading: an oral or written submission of the parties in support of their argument in the case. This includes but is not limited to, the Statement of Claim, Defence, and Reply. Pre-Hearing Conference: a physical or digital meeting held prior to a hearing to address procedural matters, rules, and other relevant issues to ensure a smooth arbitration process; may also be referred to as case management conference. Presiding Arbitrator: sometimes also referred to as president of the arbitral tribunal, is the arbitrator in a panel responsible to lead and manage proceedings in arbitration. They may be appointed by the parties, the other arbitrators, or by an appointing body. Q Quantum: the amount of money involved in a case. R Recognition of Award: a court of law’s recognition that an arbitration award is valid and binding; this is also related to enforceability. Remedy: the form of enforcement in redress for a claim, such as damages. Respondent: a party against whom a claim is brought by a claimant or class action. Restitution: is the order from a ruling body for a party to compensate for the amount the victim lost and suffered in light of the dispute. S Schedule of Costs: a table detailing the fees and expenses payable by the parties to the arbitrator, panel, or arbitral institution. Seat of Arbitration: the jurisdiction wherein the arbitration is to legally take place and where the award is to be made (regardless of the arbitrator’s or panels’ physical location). Settlement: happens when the parties come to an agreement which results in the voluntary resolution of a dispute. Slip Rule: the ability of an arbitrator or panel to correct minor errors in its award (i.e. typographical errors). Sole Arbitrator: an individual who serves as the only arbitrator who will preside over an arbitral procedure. Splitting the Baby: a situation wherein both parties are given partial victory over a case; may also be known as compromise. Stare decisis: a law principle which states that an arbitrator or panel should be guided by precedents in past similar cases. Submission agreement: presented to an arbitrator when there is no collective bargaining procedure that authorizes arbitration. Commonly, this identifies the nature of the dispute, the issue, and relief to be decided, etc. Subpoena: a formal request of attendance to a hearing sent to an individual Surety: a guarantor who promises to pay for the principal debtor in case of the former’s default. T Terms of Reference: a document which details the specifics of a case, including but not limited to the names and addresses of the parties and their counsel, summary of claims, the seat of arbitration, etc. Transcript: a verbatim record of spoken language used to record hearings for later reference. See also Stenographic Record. Transparency: the process and right to scrutinize the decision-making procedure. U Umbrella Clause: common in international investment cases, this compels the host state to comply with all obligations it has assumed in relation to investments made by an investor. United Nations Commission on International Trade Law (UNCITRAL): a leading authority in international trade and investment law, backed by the United Nations established in 1966, currently composed of 60 member states. V Validation Principle: a principle wherein a parties’ arbitration agreement takes effect due to an arbitrator’s application of a specific law. Voir dire: the method of examining an expert witness’s capacity and qualification to testify, to vet any bias or prejudice. W Witness of Fact: an individual who provides evidence, by way of a Witness Statement based on their personal knowledge of the matter; to be distinguished from expert witnesses who carry with them expertise in the subject. Writ of fieri facias: a court order allowing enforcers to seize and sell the debtor’s assets with respect to an award’s ruling. Z Zipper clause: is a provision in an agreement that states that the agreement is full and complete to the best understanding of the parties. There you have it! The ABCs up to Z of digital arbitration. It could be a dizzying experience and procedure, but with the right knowledge, everyone can be empowered in utilizing arbitral procedures.