The Insider Adversary in International Arbitration – Vol. 27 No. 1

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Authors: Frederick A. Acomb and Nicholas J. Jones*

Published: October 2016

Description: Imagine that you are defending the respondent in an international arbitration administered by an institution headquartered in a distant country. The arbitrator is a lawyer at a prominent law firm there. Midway through the proceedings, claimant gives notice that it has appointed a new lawyer to its counsel team. The new lawyer is from the same country as the arbitrator and the institution. You review her curriculum vitae and are surprised to discover that she is the Vice-Chairperson of the very institution where the case is pending. You turn to the institution’s rules and discover that under certain circumstances she has the power to unilaterally select arbitrators to serve in proceedings administered by the institution.

You know your client, and this is something that he will want to know about. Before you reach for the phone you imagine the range of possible reactions from him:
• The arbitration institution is acting against me? The institution is sitting at counsel table for my opponent? I didn’t agree to that. Who would ever agree to that?
• Your firm drafted the arbitration agreement. Why didn’t they warn me that the institution permitted this? Had I been warned, do you think I would have agreed to this institution?
• Claimant’s lawyer must have advised his client to retain the Vice- Chairperson. Why didn’t you give me the same advice? (Also, is it too late for me to retain the Chairperson?)

You scour the institution’s rules for anything that would have put you on notice that the Vice-Chairperson might be allowed to serve as counsel…

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*Frederick A. Acomb is a principal at Miller, Canfield, Paddock and Stone, P.L.C. in Detroit, Michigan, where he leads the firm’s International Disputes Group. Nicholas J. Jones is an associate at Honigman Miller Schwartz and Cohn LLP in Detroit, Michigan. The authors wish to thank Professor Charles H. Brower II for his invaluable comments and suggestions. Brower is a professor at Wayne State University Law School in Detroit, Michigan and is Of Counsel to the International Disputes Group at Miller Canfield.