This article was featured in our 2023 Energy Arbitration Report, which is part of a series of industry-focused arbitration reports edited by Jus Connect and Jus Mundi.
This issue explores the energy industry, encompassing information on electricity & renewables, based on data available on Jus Mundi and Jus Connect as of September 2023. Discover updated insights into energy arbitration and exclusive statistics & rankings, as well as in-depth global and regional perspectives on energy projects, disputes, & arbitration from leading lawyers, arbitrators, experts, arbitral institutions, and in-house counsel.
THE AUTHOR:
Maria Scanlan, Legal Director at Crescent Petroleum
The term “guerilla tactics” has been used to describe a wide range of procedural tactics whose prime objective is to obstruct, derail or even sabotage arbitration proceedings in favour of one party. Whilst guerilla tactics are not a new phenomenon, there is evidence that they are being increasingly deployed in arbitration. In a 2012 survey conducted by Edna Sussman and Solomon Ebere (in ‘All’s Fair in Love and War – Or Is It? Reflections on Ethical Standards for Counsel in International Arbitration’, The American Review of International Arbitration, Vol. 22, No. 4, 2011), 68% of the respondents (both counsel and arbitrators) reported that they had been subjected to or had witnessed guerrilla tactics in arbitrations in which they were involved.
Guerilla tactics range from unethical (but “legal”) conduct, through to criminal behaviour. They include repeated delay tactics, raising frivolous challenges in bad faith, intimidation of arbitrators and witnesses, use of surveillance methods, bribery, fraud, forgery of documents, and abuse of state authority. A common (and paradoxical) feature of guerilla tactics is that they usually involve abusing the same rules that are intended to protect the integrity of the arbitral process. Unsurprisingly, this has led to the erosion of trust in the arbitration process as an effective and ethical dispute resolution mechanism.
A key topic of debate has become how best to regulate guerilla tactics. The closest instrument to a universal ethical code of conduct can be found in the IBA Guidelines on Party Representation in International Arbitration (2013). However, these guidelines are not binding and are only applicable upon the agreement of the parties and the tribunal.
Some arbitral institutions have also sought to incorporate into their rules sufficiently wide powers to sanction unethical conduct, e.g. Article 14 of the 2020 LCIA Rules which allows the arbitral tribunal to take any “appropriate measures in order to preserve the fairness and integrity of the proceeding”. It is up to the arbitral tribunal to act as the “first line of defence” against guerilla tactics, but regrettably some arbitrators are reluctant to actively rely on arbitral institutional rules to uphold ethical standards, for fear of being (albeit unjustly) accused by recalcitrant parties of “procedural unfairness”.
Nevertheless, there are many examples of arbitral tribunals and local courts taking the reins of the proceedings and preventing the use of guerilla tactics. To illustrate, in Hrvatska Electro Privreda D.D. v. Republic of Slovenia (ICSID Case No. ARB/05/24),the ICSID tribunal ordered the removal of a newly appointed counsel in the middle of arbitration proceedings, as his appointment was found to be a tactical move by one of the parties to bring into question the independence of one of the arbitrators. Similarly, in Docket No. 34 SchH 13-16, the Higher Regional Court of Munich considered a case involving around a dozen challenges to the impartiality of the arbitral tribunal and a challenge to the judges hearing the challenge application. The Court rejected the challenge as “abusive” and the objection as inadmissible, concluding that “[t]he guarantee of judicial protection against alleged infringements of rights does not provide unlimited recourse to the courts.”
It is high time for all arbitral tribunals and local courts to move towards a “zero tolerance” approach to the use of guerilla tactics. This could be done by sanctioning recalcitrant parties through cost penalties, or using disciplinary or criminal proceedings against unethical counsel. Ultimately, it is the responsibility of all stakeholders (including arbitral institutions, local courts, arbitral tribunals, counsel and party representatives) to take an active approach towards curbing these abusive practices.
ABOUT THE AUTHOR
Maria Scanlan is currently Legal Director at Crescent Petroleum, and previously worked as a Head of Legal at the Royal Bank of Scotland. She has been a practising lawyer for over 20 years. Prior to moving in-house, she worked in top-rated arbitration and litigation teams at UK and New Zealand law firms. She holds a BCL (Oxon) from the University of Oxford and a BA.LLB (Hons) from the University of Auckland.
Find more data-backed insights in our 2023 Energy Arbitration Report
