Improving arbitration in Norway
There are a number of ways to make arbitration more attractive and efficient and the inherent flexibility of arbitration provides practitioners with the necessary tools to achieve just this aim without resorting to the development and adoption of further written "guidelines" or "best practices".
Traditionally, arbitration in Norway has been practiced by litigation lawyers whose clients occasionally face a dispute arising out of a contract containing an arbitration clause. This has shaped generations of very experienced dispute resolution lawyers, whose handling of arbitration cases however, is often heavily influenced by the habits and routines developed in proceedings before the ordinary courts. For example, it is not unusual to see experienced counsel agree on unnecessarily long arbitration hearings in larger cases – at times clogging the lawyers' and the client's calendars for months on end. The lawyers know that the Norwegian procedural law rule requiring that written evidence be presented orally does not apply to arbitration, but they tend to bask in the comfort of their experience from court proceedings.
In arbitration, however, independent thinking and creativity are as valuable as experience. A new generation of dispute resolution lawyers is emerging with increasing international exposure, either by education or through engagement in the international legal community. The interaction between this new generation and the older, more experienced generations that go before them can lead to significant improvements in the field.
Below we identify some areas which clients/practitioners may consider in order to achieve more efficient and improved dispute resolution services.
More fast-track arbitration:
Not all disputes require a panel of three arbitrators and comprehensive proceedings with lengthy oral hearings. Under the 2004 Norwegian Arbitration Act, parties are free to agree on a sole arbitrator. Institutional rules, such as the Oslo Chamber of Commerce (OCC) and the International Chamber of Commerce (ICC) rules provide for fast-track or expedited arbitration. Parties to an ad hoc arbitration also have considerable flexibility to agree on a simplified procedure. One guiding principle may be the amount in dispute (e.g. NOK 2 million under the OCC fast-track rules and USD 2 million under the ICC expedited procedure provisions), but experienced counsel should be able and prepared to recommend the adoption of simplified procedures also when the amount in dispute is large but the dispute is not qualitatively complex.
More diversity of arbitrators:
Repeat appointment of a relatively small group of jurists
(professors, practitioners and judges) may not be in the best interests of developing new and efficient practices in arbitration. This is especially true as experience shows that many of the usual suspects in this group are older, white males. Provided that the essential requirements of quality, independence and impartiality of the arbitrator are ensured, counsel should consider a larger pool of candidates. Again, the guiding principle may be the nature and scope of the dispute. What younger practitioners may lack in experience – though initiatives such as the Young Arbitration Practitioners Norway (YAPN) show that there is a host of jurists below 40 with considerable experience in arbitration – they make up for in eagerness and dedication to resolving the dispute in a just, legally correct, and efficient manner.
Improved case management:
One of the most valuable characteristics of arbitration has always been (or at least has always been perceived to be) its inherent flexibility. Both in ad hoc and institutional arbitration, the parties are provided with extensive freedom to tailor the procedure to their own needs. Counsel, together with their clients, as well as arbitrators should consider on a case-by-case basis what the most appropriate, detailed rules should be. The object of these rules ranges from the approach to document production requests, to the use of technology, to page limits for written submissions, to the early allocation of costs at each procedural crossroad, etc. It is naive to think that the best way to address these issues is to adopt one-size-fits-all "best practices" or "guidelines", which continue to proliferate in relation to most subjects and industries and whilst such suggested best practices may often provide welcome inspiration, they cannot and should not substitute the independent thinking and creativity of counsel.
Other areas for possible improvement include the use of alternative dispute resolution (ADR) mechanisms, such as mediation. These may precede or even run in parallel to arbitration. Again, however, the opportunity of conducting such additional efforts – which obviously come at a cost – should be thoroughly assessed by counsel together with the client on a case-by-case basis.
In conclusion, users of arbitration should take advantage of the flexibility they are given in order to tailor a procedure which is both efficient and free from preconceived and archaic practices. To achieve this result, the involvement of the new generation of dispute resolution lawyers, who can contribute innovative ideas to resolve old issues, is key. One essential element in developing and exchanging such ideas is the growing engagement in the community of young arbitration practitioners. In this respect, an even higher involvement of in-house counsel would be welcome, so as to ensure that the needs and expectations of the client are put in focus.