Examples of Guerrilla Tactics in International Commercial Arbitration

International commercial arbitration is a widely preferred method for resolving disputes outside of court. However, in cases where there is an imbalance of power or bad faith between the parties, the arbitration process can be disrupted by manipulative strategies, often referred to as "guerrilla tactics." These tactics involve actions that push the boundaries of legality, aiming to delay the process, exhaust the opposing party, or influence decision-makers.

This article examines the main guerrilla tactics used in international commercial arbitration, their legal implications, and how arbitrators can address them. Examples from previous cases are provided to illustrate how these tactics have been applied in practice.

Definition and Types of Guerrilla Tactics

1.1. Definition
Guerrilla tactics refer to bad-faith behaviors employed by one party during the arbitration process, which have the potential to undermine the principle of fair trial. While these tactics may not always constitute outright legal violations, they can significantly disrupt the efficiency of the process.

1.2. Common Types

• Delaying the Process: Deliberately delaying responses, making excessive evidence requests, or repeatedly appealing procedural orders.

• Pressuring Arbitrators: Challenging arbitrators' impartiality or attempting to remove them from the case.

• Manipulating Evidence: Concealing evidence, presenting forged documents, or influencing witnesses.

• Bad-Faith Conduct: Holding secret meetings or accusing opposing counsel of ethical violations.

2. Examples of Guerrilla Tactics in Practice

2.1. ICSID (International Centre for Settlement of Investment Disputes) Cases
Guerrilla tactics are frequently observed in international investment disputes:

• Chevron v. Ecuador
  In this case, the respondent repeatedly questioned the arbitrators' impartiality, filing numerous motions to disqualify them. These actions aimed to delay the arbitration process and wear down the tribunal.

• Metalclad Corporation v. Mexico
  The respondent intentionally withheld critical documents and restricted the tribunal’s access to evidence. This behavior harmed the transparency of the process and made it more challenging to ensure a balanced decision.

• Philip Morris v. Uruguay
  The respondent sought to delay the arbitration by repeatedly requesting the admission of new evidence. Furthermore, a media campaign was launched to manipulate public opinion and exert indirect pressure on the tribunal.

2.2. ICC (International Chamber of Commerce) Arbitration Cases
Guerrilla tactics are also prevalent in commercial arbitration:

• Fraport AG v. Philippines
  In this case, one party deliberately submitted incomplete or misleading documentation regarding the contract, attempting to mislead the tribunal. Additionally, bureaucratic obstacles were created to prevent witnesses from participating in the hearings.

• A Private Energy Dispute
  During an arbitration over an energy contract, the claimant accused the opposing counsel of ethical misconduct to challenge the tribunal's impartiality. This tactic resulted in delays and unnecessary strain on both parties.

2.3. PCA (Permanent Court of Arbitration) Cases
In arbitrations involving states, guerrilla tactics have also been observed:

• The South China Sea Arbitration
  The respondent state (China) completely rejected the arbitration process and refused to participate. This non-recognition strategy aimed to undermine the enforceability of the award.

• Yukos v. Russia
  The Russian government was accused of threatening witnesses for the claimant and concealing critical documents. Furthermore, the respondent's persistent challenges to the tribunal's jurisdiction made the process more complex and costly.

2.4. CIETAC (China International Economic and Trade Arbitration Commission) Cases

• An Infrastructure Project Dispute
  The respondent continuously questioned the tribunal's jurisdiction to delay proceedings. Additionally, local legal provisions were exploited to obstruct the participation of opposing witnesses.

Guerrilla tactics in international commercial arbitration represent a serious threat to the efficiency and impartiality of the process. Arbitrators and arbitration rules must take a firm stance against such behaviors. The examples and methods discussed in this article provide valuable insights into how parties and arbitrators can address these issues.

Good-faith behavior by parties and adherence to arbitration procedures are critical for the success of the process. Preventing guerrilla tactics will enhance the credibility and effectiveness of international arbitration.