International Commercial Arbitration Essays

International Commercial Arbitration Essays International Commercial Arbitration Essay International Commercial Arbitration Essay Student Number: 16476928 PART I: Question 1 (30 marks) â€Å"An international arbitration procedure is governed by the terms of the agreement between the Parties, by the Rules under which they have chosen to conduct their arbitration, and by the legislation of the jurisdiction in which they have chosen to arbitrate. † Discuss how these three elements interact from the drafting of the dispute resolution agreement through to the enforcement of the resulting Award. International arbitration is the process in which disputing parties from different states can elect to resolve their disputes. The outcome of this is a binding award that due to international law of the New York Convention, can be enforced in many countries. International arbitration awards are final and binding, and their enforcement in provided for by the New York Convention[1]. International arbitration is often described as a hybrid of dispute resolution, as it permits parties a uniquely broad flexibility in designing arbitral proceedings. The elementary factor of all international arbitrations is that it is consensual. Simply, without an agreement to arbitrate, there will be no arbitration. Consent is fundamental in the arbitration process and begins from the very first decision to enter into an arbitration agreement[2]. In addition, the terms of the arbitration agreement between the parties plays a primary role in governing the arbitral proceedings[3]. The inclusion of an arbitration clause in a contract streamlines the resolution of a dispute between the parties, as it sets out procedures from he beginning. By drafting a dispute resolution agreement that specifically accommodates the needs of each party, there is greater assurance of a successful negotiation. The terms between the parties and the Rules which they have chosen to govern their arbitration are highly influential in shaping the dispute resolution process and the outcome. By choosing pre-existing arbitration rules and procedures, as opposed to ad hoc, par ties may feel more secure in the outcome as they are using an established format that has already been proven workable. Pre existing rules offer parties support and guidance throughout the process which can be very significant in shaping this process, as well as the enforcement of the final award. In effect, an institutional arbitration entrusts the arbitration to a major institution, while ad hoc is conducted without this guidance or organisation. For this reason, ad hoc arbitration can be more flexible. [4] Arbitration Rules act as a predetermined system of guidelines and procedures to assist parties throughout their arbitration process. For example, the UNCITRAL Arbitration Rules are a set of procedural rules that afford model arbitration clauses for parties to use in their contract, procedures to be used for appointing arbitrators and policies to conduct arbitration proceedings, as well as requirements regarding the arbitration award. Arbitration clauses commonly state that the parties are bound by the specific Rules of the Arbitration provider that they have chosen. Consequently during the drafting of the dispute resolution clause, parties make a conscious decision on what Rules they want to conduct their arbitration under, as these are the Rules that will govern a future dispute if it arises. Many agreements may not expressly include or outline the provider’s rules, yet they are considered part of the agreement between the contracting parties. Arbitration agreements are often pursuant to a standard form arbitration clause from the institution which they choose to refer to[5]. Rules of each institution provide procedures and policies that are to be followed and adhered to in the event a dispute arises. Inevitably, they will thus govern, to an extent, the procedure conducted in the international arbitration. Many countries laws allow parties generous freedom in deciding the procedures that they would like to govern their arbitration. This is apparent as parties can adopt and incorporate procedural rules of a specific institution, which consequently have a significant influence on the arbitration procedure. Thus Rules chosen by the parties to conduct their arbitration are highly formative in determining the style of the arbitration procedure. As institutional Rules vary, so does the structural style of the arbitration. The freedom given to parties in drafting their arbitration agreement is vast, and is one that is often utilised[6]. While institutional rules outline procedures that are to be taken, detailed regulation of the procedure is up to what the parties agree upon and/or what the tribunal decides. The autonomy of the parties involved in the dispute is said to be a guiding principle in determining the procedures that are to be followed in international arbitrations[7]. The terms of the contract between the parties outlines the obligations that each party has agreed to perform. These terms are used to interpret and resolve any disputes which may arise, in conjunction with the arbitration Rules that have been chosen[8]. The terms of the agreement between the parties create the foundational contractual basis of the agreement. Refusal or failure to perform a contractual obligation will lead to a breach of one of these terms which consequently creates a dispute between the parties. It is then that the arbitration clause is invoked. The law that is applicable to the arbitration agreement is sometimes expressly chosen by the parties. Often the substantive law that governs the main contract between the two parties is the law which governs the arbitration agreement. [9] The procedural law that applies to the arbitration must not be overlooked, as it impacts greatly on the arbitration procedure. Procedural law under which the parties have chosen to arbitrate may require or stipulate specific arbitral procedures or restrain procedures. In addition the procedural law influences the enforcement of the arbitral award. Consequently any exceptions to the enforceability of arbitral awards must be assessed under application of the relevant procedural law in which parties have chosen to arbitrate[10]. There are only limited grounds in the New York Convention for refusing to recognise or enforce an arbitral award[11]. If an arbitration agreement is not valid under its governing law then it is not enforceable. Most of the trading states have legislation regarding arbitration that corresponds with the rule of the New York Convention, which states that arbitration agreements are ‘presumptively enforceable’[12]. If there is a valid arbitration agreement between parties, this confers jurisdiction upon the arbitration tribunal to arbitrate. As a result, the disputing parties are ‘contractually obligated to submit their dispute to arbitration. ’ It is this arbitration agreement, as well as the law governing the arbitration, which vests power in the arbitrators[13]. The New York Convention provides that procedures must be in accordance with the agreement between the parties, and it is this which illustrates the significance that party autonomy plays in the arbitration process. However it is also noted that limitations do exists on this autonomy as a result of mandatory provisions of the law of the state in which the arbitration is conducted. These mandatory provisions mostly designate the boundaries in which arbitrators and parties are to work within[14]. Globalisation has increased trade and investment which has demanded need for methods of resolving disputes which are then enforceable. International Arbitration meets this demand as it allows for flexible and accommodating dispute resolution which is governed by the choices and promises between parties. Arbitration offers flexible procedural rules and practiced legal principles to parties to resolve their disputes. The settlement of international disputes by arbitration is an invaluable feature of the world’s current legal landscape. Carefully drafted arbitration clauses allow parties substantial control over the resolution of their dispute[15], and thus the Rules under which they have chosen to conduct their arbitration play a pivotal role in the arbitration procedure. BIBLIOGRAPHY Clayton Utz ‘A guide to International Arbitration’ (2012) A Guide to International Arbitration- Second Edition. Emilia Onyema, International Commercial Arbitration and the Arbitrator’s Contract, (Taylor and Francis Group 2010) Gary B. Born , International Commercial Arbitration: Commentary and Materials, 2nd edition (Kluwer Law International 2001) Gary B. Born , International Arbitration and Forum Selection Agreements: Drafting and Enforcing, 3rd Edition (Kluwer Law International 2010) Gloria Miccoili, ‘International Commercial Arbitration’ The American Society of International Law. Jeff Waincymer , ‘Procedure and Evidence in International Arbitration’ (2012) Kluwer Law International. Julian M. Lew , Loukas A. Mistelis , et al. , Comparative International Commercial Arbitration, (Kluwer Law International 2003)Randy J . Aliment, ‘Alternative Dispute Resolution in International Business Transactions’ The Brief, 2009 Nigel Blackaby , Constantine Partasides , et al. , Redfern and Hunter on International Arbitration, (Oxford University Press 2009) PART II: (60 marks) 2. The dispute resolution clause is imperfect. Under which Rules will the Claimant likely have instituted arbitration proceedings? State your reasons. [3 marks] Claimant will likely have instituted arbitration proceedings under the ICC Arbitration Rules as they are referred to in the dispute resolution clause of article 47. The facts also state that the claimant filed its Request for Arbitration with the ICC Secretariat in Hong Kong. Also it is likely that the claimant will use the ICC Rules as they are applicable to different legal traditions and to disputes between parties from different parts of the world, regardless of whether they are members of the ICC or not. Furthermore the ICC Rules are purposed for the use of worldwide proceedings conducted in different languages and laws[16]. In addition, ICC Arbitrations can be held anywhere in the world and awards are enforceable in many of the world’s trading nations. By choosing to follow ICC Rules there is greater assurance of a nonpartisan framework to guide the dispute resolution process for parties involved in international commercial business transactions. 3. Draft a better arbitration clause for this Design Agreement. [4 marks] â€Å"Article 47: In the event of any dispute arising out of or in connection with the present contract, the parties agree to submit the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filing of a Request for ADR or within such other period as the parties may agree in writing, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The place of the arbitration will be Melbourne, Australia. The language of the arbitration will be English. The agreement is governed by Australian law, and all disputes arising out or in connection with this agreement shall be resolved in accordance with, the law of Australia. † Assume for the purpose of the remaining questions that the ICC Court accepts the case. 4. The ICC Court decides to appoint a sole arbitrator. Is the ICC likely to choose either Dr Sunderkay or Ms Ixtapa, or someone else? State your reasons. [3 marks] In cases such as this one where there is a sole arbitrator, the process for choosing the arbitrator is dependent on how the decision was made to have a sole arbitrator. In this case, the Court decided that there would be a sole arbitrator and thus the parties will not be granted any extra time to agree on an arbitrator but instead the Court will directly proceed to appoint a sole arbitrator[17]. The ICC is likely to choose someone else, pursuant to Article 13 of the ICC Rules as the disputing parties have not come to agreement about an arbitrator. Under the Rules, the Court must choose an arbitrator while considering their nationality, residence and other relations with the parties and persons in the dispute. The Court has wide discretion under Article 13 to exercise its powers in appointing the sole arbitrator. 5. Who decides which language is to be used in the arbitration proceedings? What is the decision likely to be, and why? [3 marks] Usually the language to be used in the arbitration proceedings is decided and specified in the arbitration agreement between the parties. However, in the absence of such agreement between the parties, the language shall be determined by the arbitral tribunal pursuant to Article 20 of the ICC Rules[18]. In this process, consideration is given to relevant circumstances, specifically the language of the original contract. In this case the decision is likely to be English as the contract appears to be in English. This will be a relevant factor in the decisions of the arbitral tribunal. As English is not the native language of both parties to the dispute, interpretation will be necessary, the costs of which are to be shared equally by the parties[19]. The choice of the language to be used in the proceedings must be carefully considered. Fairness is critical and enquiry must be made to ensure that one party is not disadvantaged by the decision, and that there is not too much delay in hearings[20]. Bearing in mind that the Terms of Reference, the procedural timetable and the procedural orders are to be drafted in the language of the arbitration, the decision of which language to use in the arbitration is a preliminary and critical step. 6. How is the president of the tribunal likely to be chosen and why? [3 marks] Where an arbitration is to have three arbitrators, the third arbitrator will act as the president of the arbitral tribunal. Generally this president will be appointed by the court unless parties have agreed to another process for this[21]. The president of the tribunal is chosen pursuant to Article 13 of the ICC Rules which outlines the ‘Appointment and Confirmation of the Arbitrators’. In choosing the president the ICC Court will consider the prospective arbitrator’s nationality and residence as well as the relationships he/she might have with countries which are involved in the arbitration process, as well as the prospective arbitrators availability and ability to arbitrate within the Rules of the ICC[22]. The Secretary General may authorize a person nominated by the parties to the dispute or a person pursuant to the agreement between the parties, as the president of the tribunal, provided they satisfy requirements in Article 13(2). If the Secretary General finds that a president of a tribunal should not be confirmed, this matter will be then submitted to the Court. Where it is up to the Court to appoint an arbitrator, such appointment shall be made upon proposal, and if this is not successful, can directly appoint any person who the Court finds to be suitable[23], the criteria of such suitability is established in Article 13(4). The president of the arbitral tribunal shall be of a nationality different to those of the parties to the arbitration. However, where circumstances allow and where neither party objects, the president of the Tribunal may be chosen from a country of which either party is a national[24]. As there is much disagreement between the parties surrounding the appointment of arbitrators and no agreement has been come to, it is likely that the Court will choose the president of the tribunal. Furthermore, the dispute resolution clause under Article 47 of the Futurocity Project Agreement states that ‘parties agree that their dispute shall be resolved†¦.. sing one or more arbitrators chosen by the ICC Court of Arbitration’. 7. The parties have agreed that the place of the arbitration (seat) is Melbourne Australia. The dispute resolution clause stipulates that â€Å"New York law is to govern†. Who will decide which procedural law to use? Which jurisdiction’s procedur al law will likely be used? Why? [3 marks] The procedural law of an arbitration is also referred to as the lex arbitri or the curial law. Procedural law is dependant on the seat of the arbitration. Distinction must be made between the Procedural law and the Substantive law. Procedural law establishes the role that local courts will have in the arbitration process. When an arbitration uses a set of procedural rules such as the ICC Rules, the effect of the procedural law is reduced. Pursuant to Article 19 of the ICC Rules, arbitration proceedings are to be governed by the ICC Rules, and where the Rules are silent, proceedings are to be governed by rules that have been chosen by the parties. If the parties to the dispute have not decided on the procedural law to be used, it will be the task of the arbitral tribunal. As the procedural law is likely to be chosen in conjunction with the seat of the arbitration, it is likely that the procedural law of Australia’s jurisdiction will be chosen in this case. The choice of procedural law is an important one and careful choice must be made. If parties do specify the procedural law to be used, it is easier if there choice is the same as the seat of the arbitration. The procedural law affects the enforceability of the award and thus is an important decision in the arbitration process. 8. Make a complete list of the Issues which the Tribunal will have to determine in order to decide this dispute. 8 marks] Is there jurisdiction? Does the Tribunal have jurisdiction over this matter? Have the mediation requirements specified in the arbitration clause been satisfied? Has there been an actual breach of the contract between Condesign and Statinvest? If there has been a breach? What kind of breach? Is it a fundamental breach? Who is responsible/liable f or this breach? Is it Statinvest or SSS Corp? Has the new government actually ‘decreed that Statinvest shall no longer be allowed to administer any internal project of Ruritania’, as alleged by the Respondent? What issues surfaced in the private half-day meeting that was attended by the CEO’s of the two parties? Does the Respondent owe damages and interest as claimed by the Claimant? Should the breach of the Respondent (if there is found to be a breach) terminate the second contract? Should the breach of the Respondent (if there is found to be a breach) discharge the claimant from further obligations with respect to the Futurocity Project? Who is in possession of the Letter of Credit? Is the Respondent obligated to return the Letter of Credit to the Claimant which was provided by the Claimant as Performance Guarantee for the successful completion of the Second Stage of the Futurocity Project? Who is responsible to pay all the costs Arbitration and should th ey fall soley on one party? Should the Claimant have known that the person Mr Dupont wrote to regarding the mediation had left Statinvest? And did this affect Statinvest’s participation in the mediation process? If above affected the mediation process, does it render the Request for Arbitration premature? Did the Claimant name the wrong party in the Request for Arbitration? Is SSS Corp the only proper respondent? Or is Statinvest also a respondent? What is the effect of the new currency restrictions in place since the Revolution on this dispute and this contract? Does the Respondent have a legitimate excuse out of the Design Agreement on the ground of legal impossibility? What should the language of the arbitration be? Assume for the purpose of the remaining questions that the Tribunal has decided that it has jurisdiction to hear this case. The tribunal is you, the sole arbitrator appointed by the ICC. 9. The Respondent writes to you requesting an order for security for costs, stating that the Claimant is a small company with a very weak credit history. If Respondent wins the arbitration, and obtains an order for costs, it is unlikely to be able to enforce that order, because the Claimant has no assets available to pay it. a) How do you deal with this request? [3 marks] It is appropriate to put costs protections in place where there is risk of one party not being able to meet costs that may be ordered at the time of the arbitral award. The Rules of leading arbitral tribunals adopt different approached to the issue of security for costs. The ICC Rules do not specifically deal with security for costs. However, Article 28 outlines the guidelines of ordering ‘Interim and Conservatory Measures’. This provision allows for broad scope for the sole arbitrator or arbitral tribunal to grant a measure such as the one requested by the Respondent in this scenario, as the tribunal considers appropriate. The wording of this provision allows for great flexibility, scope and interpretation. Therefore as sole arbitrator I would weigh up the relevant criteria to determine whether I will grant the request of the order for security of costs. In addition, Section 23K Model Law allows the arbitral tribunal to order security for costs ‘at any time before the award is issued’, while keeping in mind the criteria specified in Section 23K(2) ML. b) What criteria do you use in deciding whether or not to grant the order? [3 marks] In deciding whether to grant the order or not, the sole arbitrator must weigh up the negative and positives. Consideration must be placed on whether the claimant’s financial situation could possibly jeopardize the recovery of legal costs if they were to be awarded. In addition, an order for security for costs would serve to deter against frivolous claims made by the claimant. However security for costs also places considerable practical and financial constraints on the ability of the claimant to proceed with what may be legitimate claims. For such reasons it can be viewed as a limitation on the right to a fair hearing for the claimant. In addition the claimants financial capacity must be weighed up to assess whether it would be of great disadvantage to burden them with security of costs. In deciding whether to grant the order the tribunal must ask themselves if the claimant is already in financial difficulty[25]. Furthermore, if ordering security for costs, the tribunal must make sure that such an order is not solely made on the party’s nationality or its corporations international foundations[26]. c) What is your decision? [3 marks] As the sole arbitrator I would decide to grant the Respondent’s request for an order for security of costs. Alternatively I would refuse it. I will provide reasons for both answers in the below question. d) Give reasons for your decision. [3 marks] The reasons for granting the above order would be to safeguard the effectiveness of the international arbitration between the two parties. It would also allow for greater enforceability of arbitral awards, thus greater resolution of the international commercial dispute between the parties, while also supporting a fair administration of justice. On the other hand, I would refuse the above request as it may place the claimant at a great financial disadvantage. The claimant (Condesign) are already in financial distress as they have not been paid for the First Stage of the Futurocity design they completed. An order for security of costs may further unnecessarily burden the claimant and harm their chance at a fair arbitration proceeding. Furthermore, by granting an order for security of costs, could act to create prejudgment towards the claimant, which could place limitation on the claimant’s right to a fair hearing[27]. 10. The Claimant writes to you requesting that you order the Respondent to return to Claimant immediately the Letter of Credit, or at least that you issue an injunction preventing the Respondent from calling the Big Bank Trust Letter of Credit. a) How do you deal with this application? [3 marks] Pursuant to Article 28 of the ICC Rules, the Tribunal may order any interim or conservatory measure it deems appropriate, at the request of a party. The arbitral tribunal may do so, unless the parties have otherwise agreed. On the facts of this case, no such agreement appears present. Ordering the Respondent to return to the Claimant the Letter of Credit or issuing an in junction would fall under this provision. However if the arbitrator(myself) grants the measures requested above by the Claimant, it ay only grant the measure ‘subject to appropriate security being furnished by the requesting party’[28]. It is likely that the tribunal will not order the Respondent to return the Letter of Credit immediately, but rather issue an injunction. This would be a more appropriate interim measure at the early stages of the arbitration process, as interim measures are aimed to be ‘grants of temporary relief pending final resolution of a dispute. ’[29] (b) Assuming you decide to grant this application, do you address it to Big Bank Trust? If yes, why? If no, why not? [3 marks] Assuming this application is granted, I would address it to Big Bank Trust as at this early stage of the arbitration process there appears to be some deal of confusion as to who the true Respondent is and thus it would be a lot clearer to contact Big Bank Trust and place an injunction on the Letter of Credit, as the Respondent claims that it is no longer in possession or in control of the Letter of Credit. Therefore, until issues as to where the Letter of Credit is and who the true Respondent are decided, it would be most efficient to address the injunction to Big Bank Trust. 1. About 6 weeks before the hearing of this matter is due to begin, the Claimant’s lawyer emails you, stating that the wife of Condesign’s CEO is terminally ill and not expected to live more than 2 months. He does not want to be away from his wife at this time. The Claimant’s lawyer asks that you either (a) postpone the hearing for approximately six months; or (b) move the hearing from Me lbourne to Paris where the CEO’s mother is in intensive care in hospital. The Respondent acknowledges that in fact Paris is more convenient than Melbourne, but it refuses to change the seat of the arbitration. Respondent opposes any postponement of the hearing, saying that it wants this case disposed of expeditiously. What do you decide, and for what reasons? [4 marks] Changed circumstances of a party, in this case, of the Claimant, can render the arbitration procedure unworkable or impossible, and thus it may be so that in some circumstances changing the venue is necessary, to accommodate for this[30]. Article 18(2) of the ICC Rules provides, ‘The arbitral tribunal may, after consultation with the parties, conduct hearings and meetings at any location it considers appropriate, unless otherwise agreed by the parties’. This provision may allow the tribunal to conduct hearings at a location convenient for the Claimant, in respect of his changed circumstances. However it has been noted that a change of the initially agreed place of arbitration should be a carefully reviewed decision, as the place of arbitration is an important aspect of the arbitration agreement between the parties. On the other hand, just like any other contract, an arbitration agreement is subject to change and interpretation, and moving the hearing from Melbourne to Paris may be the only effective means of ensuring that the intentions and goals of the original arbitration agreement are honored[31]. Therefore I would likely move the hearing from Melbourne to Paris. 12. On the first day of the hearing, which is expected to last 5 days, the Claimant’s lawyer advises you that its â€Å"star witness† refuses to travel to Melbourne as he has a serious case of aviophobia (terror of flying). The Respondent’s lawyer says that according to IBA Rules you should simply strike out the witness statement of this â€Å"star witness† if Respondent does not have the chance to question the witness about his statement. How do you handle this situation? [4 marks] The IBA Rules are designed to be used alongside other rules that govern international arbitrations, such as the ICC Rules. The parties have not directly mentioned the IBA Rules in their dispute resolution clause, and whilst they are not binding, they still remain influential over the arbitration process. Specifically, when parties come from different legal cultures, as is most likely the case in this scenario, the IBA Rules become a very useful guiding tool. Pursuant to Article 4. 7 of the IBA Rules the Claimant’s ‘star witness’ whose appearance has been requested pursuant to Article 8. 1 IBA Rules, shall have their witness statement disregarded due to failure to appear for testimony without a valid reason. However Article 4. 7 provides that there is discretion for the Arbitral Tribunal to decide otherwise, in exceptional circumstances, to not disregard the witness statement. Consequently, it remains up to the discretion of the arbitrator to decide if the star witness has a valid reason for not appearing and whether exceptional circumstances have been evoked. Decision would need to be make surrounding the star witness’ serious case of aviophobia. In addition, Article 8. 1 states that ‘each witness shall appear in person unless the Arbitral Tribunal allows the use of videoconference or similar technology with respect to a particular witness’. Thus, this provision allows for alternative methods of questioning, and the Respondent could possibly question the witness over videoconferencing, rather than in person. Furthermore, pursuant to Article 22 of the ICC Rules, which outlines the Conduct of the Arbitration, it is up to the arbitral tribunal in all cases to act fairly to ‘ensure that each party has a reasonable opportunity to present its case’. Therefore, as the arbitrator, I would be striving towards conducting an equal and fair arbitration proceeding that would allow both parties to present their case and use their witness statements, which is provided for under both the ICC Rules and Model Law Rules (Article 18) which are applicable to Australian Arbitrations. As it is also important that the Respondent has the opportunity to cross-examine the witness I could allow for videoconferencing for this to happen, while allowing the ‘star witness’ statement to be admissible. 13. The hearing has ended and you have received post-hearing briefs and declared the procedure closed under ICC article 27. In reviewing the transcripts and your notes, you realize that there is an important question, which neither party has addressed in its arguments. You need to know the answer in order to make a logical and fair decision. What, if anything, can you do? [4 marks] Pursuant to Article 27, the arbitral tribunal has declared the proceedings closed and thus ‘no further submission or argument may be made, or evidence produced’. However this provision states that this may be possible if requested or authorized by the arbitral tribunal. Being the sole arbitrator I would consequently have authority to invite further submissions and evidence from the parties in an effort to make a logical and fair decision. 14. You have submitted your draft award to the ICC for scrutiny. A few days ater, at an international arbitration conference, you find yourself seated at the head table, next to Counsel for the Respondent in this case. Respondent asks you a few innocent questions about when you expect the award to be available. You reply vaguely that the award will probably be sent out â€Å"in a month or so†. Counsel then tries to engage you in a discussion of the merits of the case. How do you respond? [ 3 marks] Article 11 of the ICC Rules states, ‘Every arbitrator must be and remain impartial and independent of the parties involved in the arbitration’. The very nature of arbitration, and one of its most desirable features, is its fairness and impartiality. In addition, it is widely regarded that arbitrators ‘shall be and remain free from bias’[32] Specifically, for the duration of the arbitration process, the Arbitrator should seek to avoid any communication with a party or representative of a party, and if this said communication cannot be avoided, the arbitrator should seek to inform the other party of this[33]. Thus, when Counsel tries to engage me in a discussion of the merits if the case, I would refuse to continue discussion, and then I would explain the above guidelines regarding the ethics of Arbitrators, as well as inform the other party of this communication.