In 2016, together with co-authors, Michael McIlwrath and Ema Vidak-Gojkovic, Lucy published “Puppies or Kittens – How To Better Match Arbitrators to Party Expectations”
The article was a plea to arbitrators to be more transparent about the ways in which they manage cases. In the spirit of transparency, Lucy's responses to common case management questions are set out below:
Delegation: do you believe it is acceptable for an arbitrator to delegate work to a junior lawyer who is not a member of the tribunal? No.
Tribunal secretaries: do you believe that it is acceptable for a tribunal to appoint a secretary to assist it with the administrative tasks relating to the proceedings? Rarely.
Preliminary or early decisions: do you believe it is appropriate for tribunals to attempt to identify and decide potentially dispositive issues early in a case, even if one of the parties does not consent to this? Yes, depending upon the circumstances.
Settlement facilitation: do you believe arbitral tribunals should offer to assist parties in reaching a settlement, and actively look for opportunities to do so? I believe tribunals should remind parties of the benefits of settling cases but not assist the parties in reaching a settlement.
Early views of strengths and weaknesses of claims and defenses: do you believe arbitrators should provide parties with their preliminary views of the strengths and weaknesses of their claims and defenses? No.
IBA Rules of Evidence: do you believe international tribunals should apply the rules in proceedings even if one of the parties objects to their application? I believe that tribunals should not impose 'soft law' such as the IBA Rules upon the parties in the face of opposition but should encourage the parties to consider their use in the interests of consistency in arbitral procedure.
Document disclosure: do you believe it is appropriate for international tribunals to grant a party's request for e-discovery? Yes, if the e-discovery is narrowly focused and appropriately targeted.
Skeleton arguments: do you prefer for parties to provide a summary of their arguments to the tribunal before the hearing? Yes.
Chair nominations: do you believe co-arbitrators should consult with the parties who appointed them before proposing names for a chair to the other coarbitrator? Not invariably, but where appropriate.
Arbitrator interviews: are you available to be interviewed by the parties before being appointed (in accordance, for example, with the Guidelines for Arbitrator Interviews published by the Chartered Institute of Arbitrators)? Yes.
Arbitrator interviews: if you are appointed as a co-arbitrator, do you think parties should interview a prospective chair that you and the other co-arbitrator have identified, before agreeing the appointment? No.
Counsel misconduct: for a counsel that has engaged in misconduct, do you generally take steps while the proceedings are underway, or include consideration of the misconduct in a subsequent award of costs, or do you believe it is not within the responsibility of the arbitral tribunal? (choose only one) (a) Discipline during proceedings, immediately when misconduct occurs (b) Discipline both during proceedings and in subsequent award on costs (c) Take misconduct into consideration in cost award (d) Do not believe counsel misconduct is responsibility of the tribunal. In my experience this is a highly unusual situation which should be addressed on a case by case basis.
Costs: do you believe it is appropriate for a party to recover all of its reasonable costs (including counsel fees) if it has prevailed on its claims or defenses? Yes, subject to contrary agreement by the parties.
Costs: do you believe it is appropriate for a party to recover the reasonable costs of any in-house counsel who conducted or assisted the party's conduct of the arbitration? It depends.
Do you view yourself as conducting proceedings more in the style of the common law, the civil law, or no preference/depends on situation? I conduct proceedings in the style of 'international arbitration', namely with a view to a prompt, efficient determination of the dispute without excessive discovery or lengthy hearings.
Please provide a statement of how you prefer to conduct arbitration proceedings in cases in which you have been, or could be, appointed. To elaborate on the above, I feel passionately that international arbitration needs to conform with party expectations that it should be an efficient and cost effective process. My approach to managing international arbitration matters accords with this.