Most disputes between members are solved with the help of DRC Staff during the informal consultation process. Some disputes however end up in the formal process where an arbitrator is appointed with the cooperation of the claimant and the respondent. That arbitrator must make a decision based on what is presented to them by the parties. We have seen some arbitration cases where if the claimant or the respondent had made a better presentation to the arbitrator, the arbitrator might have reconsidered their decision.
- The informal file handled by DRC staff is closed and the arbitrator does not see it.
During the informal process many documents and issues are exchanged and explored. The informality of this process allows the parties to go back and forth several times, review information, and make offers or counter offers. Firms may also discover an error or a new issue during this exchange. For the above reasons the informal file is sealed to avoid misleading the arbitrator. Do not assume that the arbitrator will have access to the information submitted during the informal consultation process. You have to make sure you resubmit all the information favouring your claim or defence.
- A party refers to a contract or other document but fails to provide it.
Parties often reference agreements, contracts, emails, market reports, etc. in presenting their case. A statement without supporting documentation is of limited evidentiary value, especially when the other party has presented documentation in support of their position. If you are referencing a document, ensure it makes it to your exhibits when presenting your case.
- A party assumes the arbitrator has specific knowledge of a particular issue.
The arbitrators that are selected for DRC cases are familiar with the industry and DRC rules. They cannot however be expected to know everything about every commodity or unique steps in the supply chain. An arbitrator is no different than a judge in court; they are not going to investigate or make your case for you. You are responsible to make and defend your own case.
Obviously, no one likes to lose a case. Unfortunately, we do see cases where a party fails to prevail in their case not because of what they presented, but because of what they failed to present. It is unfortunate when a case is lost not on its merits, but rather because essential material was not provided to the arbitrator. Be prepared and avoid these top three pitfalls.
