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Taming the Guerilla in International Arbitration
Guerilla tactics in arbitration are unethical and disruptive strategies that some parties or their representatives use to sabotage, delay, or derail the arbitral process. They can take various forms, such as witness tampering, frivolous challenges, bribery, fraud, intimidation, threats of violence, and abuse of state authority. These tactics can undermine the efficiency, fairness, and legitimacy of arbitration as a dispute resolution mechanism.
In this article, we will explore the nature, causes, and consequences of guerilla tactics in arbitration, as well as some possible ways to prevent or counter them. We will focus on international arbitration, which is particularly vulnerable to such tactics due to the diversity of legal cultures, ethical standards, and enforcement regimes involved.
The Nature of Guerilla Tactics in Arbitration
The term "guerilla tactics" was coined by Michael Hwang in 2005 to describe "the use of procedural devices that are designed to derail or frustrate the arbitral process.". [1] Since then, scholars and practitioners have widely adopted the term to refer to various types of misconduct that can occur before, during, or after an arbitration.
According to Navin Ahuja, guerilla tactics can be defined as "any action or omission by a participant in international arbitration that is intended to disrupt the arbitral process or prevent the resolution of the dispute on its merits.". [2] He identifies four categories of guerilla tactics:
Pre-arbitration tactics: These are actions taken before the commencement of an arbitration to prevent or hinder the initiation or constitution of the arbitral tribunal. Examples include refusing to participate in the appointment of arbitrators, challenging arbitrators on spurious grounds, changing counsel to create conflicts of interest, or invoking state immunity or public policy to avoid arbitration.
Intra-arbitration tactics: These are actions taken during an arbitration to obstruct or delay the proceedings or impair the quality of the evidence or decision. Examples include raising frivolous objections, requesting excessive document production, tampering with witnesses or experts, engaging in ex parte communications with arbitrators, or resorting to surveillance, hacking, or espionage.
Post-arbitration tactics: These are actions taken after issuing an arbitral award to challenge its validity or enforceability. Examples include alleging fraud, corruption, or bias in the arbitral process, invoking state sovereignty or public policy to resist enforcement, or initiating parallel proceedings in domestic courts or other fora.
Extra-arbitration tactics: These are actions taken outside the scope of the arbitration that have an impact on its outcome or effectiveness. Examples include bribing or threatening arbitrators, witnesses, experts, or counsel; using political or economic pressure on the parties or the tribunal; or resorting to violence or sabotage.
The Causes of Guerilla Tactics in Arbitration
Various factors can motivate or facilitate the use of guerilla tactics in arbitration. Some of them are:
The lack of uniform ethical standards and rules for legal representatives in international arbitration. Different jurisdictions and legal traditions may have different norms and expectations regarding professional conduct and responsibility. This can create confusion, inconsistency, and loopholes for unethical behaviour.
The lack of effective sanctions and remedies for guerilla tactics in international arbitration. The arbitral tribunal may have limited powers and discretion to impose sanctions for misconduct, such as cost orders, adverse inferences, or exclusion of evidence. The parties may also have limited recourse to challenge or appeal an award affected by guerilla tactics, especially if they are not aware of them until after the award is rendered.
the high stakes and complexity of international disputes. The parties involved in international arbitration may have significant economic, political, or reputational interests at stake. They may also face complex legal and factual issues that require extensive evidence and expertise. This can create incentives and opportunities for parties to resort to guerilla tactics to gain an advantage or avoid an adverse outcome.
The diversity and asymmetry of the parties and their representatives in international arbitration. The parties involved in international arbitration may come from different cultural backgrounds, legal systems, and ethical values. They may also have different levels of resources, experience, and sophistication in dealing with arbitration. This can create misunderstandings, mistrust, and imbalances that can trigger or enable guerilla tactics.
The Consequences of Guerilla Tactics in Arbitration
The use of guerilla tactics in arbitration can have serious negative consequences for the parties, the arbitrators, and the arbitral process. Some of them are:
The increase in time and costs of arbitration. Guerilla tactics can cause delays, disruptions, and complications in the arbitral proceedings. They can also require additional resources and efforts from the parties and the tribunal to address them. This can result in increased time and costs for resolving the dispute.
The decrease in quality and reliability of arbitration. Guerilla tactics can affect the integrity and accuracy of the evidence and the decision in arbitration. They can also undermine the impartiality and independence of the arbitrators and their award. This can result in decreased quality and reliability of arbitration as a dispute resolution mechanism.
the damage to the reputation and legitimacy of arbitration. Guerilla tactics can erode the trust and confidence of the parties and the public in arbitration. They can also tarnish the image and reputation of arbitration as a fair, efficient, and effective alternative to litigation. This can damage the legitimacy and popularity of arbitration as a dispute-resolution mechanism.
The Prevention and Countermeasures for Guerilla Tactics in Arbitration
Various measures can be taken to prevent or counter guerilla tactics in arbitration. Some of them are:
- The adoption and enforcement of uniform ethical standards and rules for legal representatives in international arbitration. There have been several initiatives to codify and harmonize the ethical obligations and responsibilities of legal representatives in international arbitration, such as the IBA Guidelines on Party Representation in International Arbitration, the LCIA General Guidelines for the Parties' Legal Representatives, or the CIArb London Centenary Principles. These instruments can provide guidance and clarity for legal representatives on what constitutes acceptable and unacceptable conduct in arbitration, and empower the arbitral tribunal and/or the arbitral institution to sanction misconduct.
- The enhancement of the powers and discretion of the arbitral tribunal to sanction and remedy guerilla tactics in international arbitration. The arbitral tribunal should have sufficient authority and flexibility to deal with guerilla tactics effectively and proportionately, such as by issuing procedural orders, drawing adverse inferences, excluding evidence, awarding costs, or even terminating the proceedings or dismissing the claims. The arbitral tribunal should also exercise its powers and discretion with caution and transparency, taking into account the due process rights of the parties and the enforceability of the award.
- The promotion of education and awareness of guerilla tactics in international arbitration. The parties and their representatives should be informed and educated on the nature, causes and consequences of guerilla tactics in arbitration, as well as the ethical standards and rules that apply to them. They should also be encouraged to adopt a cooperative and constructive attitude towards arbitration, respecting its principles and values. The arbitrators should also be trained and updated on how to identify, prevent and counter guerilla tactics in arbitration, using their skills and experience.
- The development of a culture of integrity and professionalism in international arbitration. The parties, their representatives and the arbitrators should adhere to high standards of integrity and professionalism in arbitration, acting in good faith, honesty and fairness. They should also foster a culture of mutual respect, trust and cooperation in arbitration, avoiding unnecessary conflicts, disputes or delays. They should also uphold the reputation and legitimacy of arbitration as a dispute resolution mechanism, enhancing its credibility and attractiveness.
Conclusion
Guerilla tactics in arbitration are a serious problem that can affect the efficiency, fairness and legitimacy of arbitration as a dispute resolution mechanism. They can take various forms, such as witness tampering, frivolous challenges, bribery, fraud, intimidation, threats of violence and abuse of state authority. They can be motivated or facilitated by various factors, such as the lack of uniform ethical standards and rules, the lack of effective sanctions and remedies, the high stakes and complexity of international disputes, or the diversity and asymmetry of the parties and their representatives.
There are various measures that can be taken to prevent or counter guerilla tactics in arbitration, such as the adoption and enforcement of uniform ethical standards and rules, the enhancement of the powers and discretion of the arbitral tribunal, the promotion of education and awareness on guerilla tactics, or the development of a culture of integrity and professionalism in international arbitration.
By taking these measures, we can hope to tame or eliminate guerilla tactics in arbitration, ensuring that arbitration remains a fair, efficient and effective dispute-resolution mechanism.
References:
[1] Michael Hwang SC (2005) 'Guerilla Tactics' 21(2) Arbitration International 211
[2] Navin G Ahuja (2022) The Nature of Guerrilla Tactics in International Arbitration in Taming the Guerrilla in International Commercial Arbitration (Springer) 51
- Guerilla tactics are unethical and disruptive practices that aim to obstruct, delay or derail arbitration proceedings.
- Guerilla tactics pose serious challenges to the legitimacy and efficiency of international arbitration as a dispute resolution mechanism.
- Parties and arbitrators should adopt preventive and reactive measures to counteract guerilla tactics, such as drafting clear and comprehensive arbitration clauses, applying sanctions, seeking interim
