Companies and by extension their in–house counsel, more than law firm practitioners, arbitrators, or arbitral institutions, are the “parties”to an arbitration, and therefore play a crucial role in arbitration. International commercial arbitration is an institution which takes as many shapes, but is most importantly what the “parties”make of it. Starting from this premise, in–house counsel should be more proactively involved in their companies’ arbitrations, both when drafting an arbitration clause and when initiating proceedings. They should also control the work that their outside lawyers do, and preferably be involved in managing arbitral proceedings. Because of their unique position, in–house counsel understand all facets of a given issue. They know the challenges and pressures that are brought to bear on companies because they are both independent counsellors and business partners. It is a known fact that parties are increasingly frustrated by time and expense necessary to conduct and conclude an arbitration: to remedy this situation, in–house counsel should take the lead in addressing all aspects of arbitration. For these reasons, at the initiative of a GE senior lawyer, Jean–Claude Najar, representatives from 23 multinationals formed the CCIAG, the Corporate Counsel International Arbitration Group, in November 2006, with the aim of giving these “users” a voice in the international fora, including with the UNCITRAL Working Group. In addition to these efforts, arbitral institutions, law firms and other players should systematically solicit the views of in–house counsel and involve them on issues such as amendment of rules. In–house counsel should also make time available to address these issues.
Journal of International Arbitration