Tips on what to do in the digital industry are everywhere, including here at the Jur blog. However, what are the things that individuals in this industry should avoid?
To answer this, we identified three things that arbitrators and counsels alike should NOT do in the digital arbitration industry. Let’s take a look at them:
Do not provide indecisive arbitral decisions
One myth about arbitration is that “splitting the baby” is still an ongoing and well-accepted practice. However, international arbitration expert, Sophie Nappert, has shared her thoughts on why this isn’t the case.
“It’s very important that a decision be motivated. Negotiating so that no one is unhappy is not the point of arbitration,” she explains.
This is why as an arbitrator, it’s important to have decisive decisions and awards.
Do not act like a counsel as an arbitrator
An arbitrator must always maintain impartiality in a procedure. This is why acting like a party’s counsel amidst a hearing is a big no-no.
To maintain this, an arbitrator should not be overly familiar with any one party to avoid bias. Full disclosure of past, present and near-future engagements with any of the parties are also necessary.
Do not set up virtual hearings thinking they are just like any other hearing
“A lot of teams in a lot of virtual hearings say, ‘We can manage this, this is just like any video call. But that just doesn’t work,” says international arbitration specialist, Sebastian Mejia.
He proceeds by telling us how thinking about the nuances of a virtual hearing versus a physical one has helped them resolve a multi-billion dollar dispute.
Sebastian shares that the key was to find fantastic third-party providers who helped set up the virtual hearing to ensure that it runs without a glitch.
A quick tip from Jur: having a trial run with fellow arbitrators can be a fun way to get the grasp of any new software or environment.
Do not try to influence your arbitrator
In line with the topic of neutrality, as counsel, you should be careful about how you deal with your arbitrator.
Communicating with them privately, giving them expensive items, and any other form of favors that may influence their decision will negatively affect you in the long run, especially when the opposing party finds out.
Respect the integrity of the seat of arbitration and avoid influencing your arbitrator at all cost.
Do not get into a scuffle while in a hearing
It is normal to have heated discussions in hearings, however, never let your or your client’s emotions drive the arguments.
The beauty of arbitration is that it’s a dispute resolution method that focuses on an amicable process. By getting into a scuffle with the other party or the arbitrator, you will only end up with a bruised reputation and a longer resolution timeframe as the process may prolong itself due to the disturbance.
Do not stipulate a different governing law from the seat of arbitration in your arbitration clause
When writing arbitration clauses, indicating a stipulated statute together with the local arbitration law can create confusion.
This is why it would be best practice to simply avoid mentioning a different governing law from the seat of arbitration. After all, the arbitration law of the seat will apply automatically, without the need to name any other arbitration law. This will not only save you time but headaches in the future.
As the digital arbitration industry evolves, we’re sure that this list of don’ts will only grow. For now, keep in mind these things that you should avoid in order to succeed in the digital arbitration industry.
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