A prior post in the Blog’s Bermuda Form Arbitration Series discussed several strategic considerations for London arbitrations involving the Bermuda Form, including considerations for initiating the arbitration, selection of arbitrators, and selection of counsel. This post focuses on strategic considerations for the discovery and briefing stages of London arbitrations.
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Discovery
In international arbitration, the parties may decide upon an agreed set of rules to govern discovery. Discovery, or “disclosure” as it is referred to in the United Kingdom, includes only production of documents. While English practice does not allow deposition discovery, it may require production of the transcripts of depositions taken in American proceedings of potential witnesses to allow for cross-examination with potentially conflicting testimony from the American proceedings.
Although rules governing disclosure have been relaxed in England in recent years, the traditional practice, which requires parties to set forth with specificity the categories of documents sought, continues. However, as in civil procedure applicable in the United States, parties may move to compel disclosure if the opposing party refuses or fails to produce documents. Parties identify disputed categories of documents, brief those issues for the Tribunal, and argue them at a hearing set for that purpose. The Tribunal will then issue a decision on the disputed categories.
It may be important—indeed, crucial—for counsel for parties under these procedural rules to continue to contest the opposing party’s failure to produce important categories of documents. Failure to d so may result in a finding by the Tribunal that the requesting party has waived its right to pursue production. Under English procedure, however, parties frequently pursue adjudication regarding production of disputed categories of documents right into the actual trial or final hearing. While the Tribunal will be reluctant to order additional production of previously withheld material in mid-hearing, it may do so in order to ensure the fairness of the proceedings. Presenting a written record confirming the requesting party’s diligence in seeking the discovery is important to success in these situations.
Briefing
Advice from an English lawyer is helpful in preparing the final hearing brief and bundles, or exhibits. The English style of briefing does not focus on case discussions to the extent common in American-style briefing. Because witness statements and oral evidence focus on disputed factual issues, the key place to address disputed issues of policy interpretation is in the final hearing briefing, especially in the common situation where months pass between the completion of the final hearing and the arbitrators’ final decisions in preparation of the award.
Hearing exhibits are presented in two-hole English binders (called “bundles”), prepared and submitted to the Tribunal in advance of the start of the hearing. The hearing bundles include copies of pleadings and transcripts of earlier hearings in the matter, fact documents or hearing exhibits, witness statements, authorities cited in the final hearing briefing, and policy documents. It is helpful if each bundle is indexed and organized in chronological order. Each document also is given a unique number keyed to the bundle in which it appears.
In our experience, as in American trials, the assistance of an experienced legal assistant can be invaluable. A party’s legal assistant can assist not only the parties’ lawyers and witnesses, helping to locate hearing exhibits in the bundle during cross- examination and oral argument, but also the Tribunal in organizing and finding documents. Having an arbitrator come to rely upon the expertise and mastery of the record of your legal assistant, in preference to that of the opposing party, helps to project that aura of competence and thorough preparation that trial lawyers, American or British, seek to project.
This post is part of the Blog’s Bermuda Form Insurance Arbitration Series.
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A partner in Hunton & Williams LLP’s insurance coverage practice, Lorelie Masters is a member of the American Bar Association’s Board of Governors and a founder and former President of the American College of Coverage and Extra-Contractual Counsel. She is co-author, with English Barristers, Richard Jacobs QC and Paul Stanley QC, of Liability Insurance in International Arbitration: The Bermuda Form (Hart Publishing, 2d ed. 2011) (“The Bermuda Form”), which won the 2012 Book Prize of the British Insurance Law Association for outstanding contributions to the literature on insurance coverage.
Paul Moura is an associate attorney in Hunton & Williams LLP’s insurance coverage practice, where he represents clients from a diversity of industries in insurance recovery and related commercial disputes. Prior to joining Hunton & Williams, Paul was a policy researcher at a think tank based at the London School of Economics, where he helped to develop a network of policymakers, academics, and lobby groups collaborating in areas involving consumer protection and digital rights.