International Construction Law Review
THE NEW ASSISTANCE THE ICC PROVIDES TO PROTECT THE CONFIDENTIALITY OF A “SEALED OFFER”1
Christopher Seppälä,2
Paul Brumpton3
Mariele Coulet-Diaz4
I. INTRODUCTION
International arbitration is accustomed to borrowing procedures from domestic legal systems and, after adapting them, incorporating them into international arbitral practice. Thus, the IBA Rules on the Taking of Evidence in International Arbitration (2010) (the “IBA Rules”), have borrowed and incorporated the direct examination and cross-examination of witnesses by counsel, party-appointed experts as well as document production – though not discovery generally – from the common law system. On the other hand, the generally accepted use in international arbitration of detailed written pleadings, accompanied by documentary evidence, detailed written witness statements and tribunal-appointed experts, is more in keeping with practice in the civil law system.
However, there is an excellent, discrete procedure from the English common law system which has not yet come to be generally accepted in international arbitration. This is known as the “sealed (settlement) offer” or offer sent on a “without prejudice save as to costs” basis (herein called “Sealed Offer”). Regrettably, this procedure has been used in relatively few cases up to now, mainly where English common law lawyers are involved, and it deserves to be much better known and more widely used in international arbitrations, as it will promote the earlier amicable settlement of arbitrations.
While this procedure is described in its English context in Section II below, it may be illustrated by a simple example. Let us assume that the claimant (“C”) begins an arbitration against a respondent (“R”) claiming US$10 million. R privately assesses its liability at no more than US$2 million. As R wishes to see the claim settled, R offers US$2.5 million to C subject to the condition that if the offer is rejected R reserves the right to submit its rejected offer to the relevant arbitral tribunal in such manner that the tribunal will only be informed of it after the tribunal has decided the merits and quantum of the case and is ready to allocate the costs of
1 This article was first published in ICC Dispute Resolution Bulletin, Issue 1, 2017.
2 Partner, White & Case LLP, Paris.
3 Partner, White Case LLP, London.
4 Associate, White & Case LLP, Paris.
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