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Company lawyers are increasingly concerned about the cost of resolving complex transnational disputes. Law departments are measuring the cycle time of individual cases to ascertain the value of a growing number of conflict management strategies.
Many in the arbitration community have expressed concern about the desire of some parties to have arbitration mirror common law litigation practices. If the parties want nothing more than a private trial by dedicated expert arbitrators, that is their prerogative, but that is not arbitration.
Arbitration should be a far more expeditious process and civil law practitioners and lawyers familiar with arbitration know that. It should be no surprise that arbitrators, with the encouragement of arbitral institutions, are experimenting with new approaches to time management in complex arbitrations.1 This article focuses on time management in general, and the practical use and possible pitfalls of one of these techniques-the chess clock.2
What is the Chess Clock?
The chess clock is essentially an agreement to allocate a specific amount of time to each party during the arbitration hearing. The parties agree on the time limits with the arbitral tribunal, and these limits are then memorialized in a procedural order.3 In theory, a party that has exhausted its allotted time would be time-barred from continuing its presentation unless it is granted additional time from the arbitral tribunal. Actual experience suggests that this rarely happens.
Practical Considerations
The chess clock only works if the parties accurately assess how much time they will need to present their evidence and arguments at the hearing. In order to make this assessment, all aspects of the parties' presentation should be figured into their allocated time. Because efficiency is an important goal of arbitration, the tribunal should discuss with the parties' counsel ways in which to reduce their allotted time. For example, the tribunal should ask them to limit repetitive testimony and eliminate irrelevant argument and evidence. The arbitrators also should carefully question counsel about the need for particular witnesses, as well as the method of taking argument and evidence. Cumulative testimony should be eliminated altogether. Should that not be feasible, such testimony should be presented in writing. The parties' arguments and direct evidence also can be taken in writing, which is routine in international proceedings. Direct witnesses...