An introduction to London Maritime Arbitration (Estudios) by Miquel Roca López

Author:Miquel Roca López [Roca López, Miquel]
Language: eng
Format: epub, pdf
ISBN: 9788413917924
Publisher: ARANZADI / CIVITAS
Published: 2022-01-30T22:00:00+00:00

4. WITHOUT PREJUDICE NEGOTIATIONS

We come to one of the key points of the preliminary phase of an arbitration. It is quite remarkable the number of lawyers who exchange without prejudice correspondence with their English counterparts without really being aware of this crucial peculiarity of the English system262.

First of all, we must say that open correspondence between the parties or between their lawyers has no confidentiality protection whatsoever. This extends to letters, faxes, emails and even telephone conversations and will always be the case even if one of the lawyers is based in a jurisdiction that does offer such protection. It should not surprise the foreign lawyer to see how the opposing London based Solicitor, to demonstrate to the arbitrator any given point, makes use of certain emails that the foreign lawyer sent to him at the time, or even provides his own notes in which he recorded a conversation he had with that foreign lawyer on the phone. Why is correspondence passing between lawyers not confidential in England? The underlying reason may lie in the ultimate goal of achieving a fair resolution of the dispute, whether beneficial or detrimental to our interests: our case must be the same regardless of who we are talking to, either to the arbitrator or to the other party.

Without prejudice negotiations are an exception to that rule. Although without prejudice negotiations have been used since the old times, their consolidation rests on the reforms carried out by Lord Woolf which we have already seen before263, the main goal of which was the promotion of a prompt resolution of the disputes and to avoid the unnecessary use of the judicial system (or arbitral in our case) and incurring in unnecessary costs.

But “without prejudice” to what exactly? Without prejudice to a possible trial or, as far as our case is concerned, to the possible hearing that may be held at the time. That is, nothing contained in a letter headed with these words will be able to be used against us as evidence before a court or arbitral tribunal. But beware, as this requires certain clarifications.

First of all, there is no point in heading absolutely all our letters, faxes or emails with the words without prejudice. The important thing is the content of the communication itself and not the header. What should that content be then? It must be a content whose genuine goal is to reach an early resolution of the matter.

That is why it is a serious mistake to let ourselves be carried away and head all our communications with these words. This is so because if, for example, we send an email to the Solicitor of the opposing party in London headed without prejudice in which we detail all the contractual breaches that his client has carried out and his lack of cooperation in a prompt resolution of the matter, without more, that Solicitor although in the back of his mind he may know that this communication is not really without prejudice, he does not have to provide it in the procedure using the heading as an excuse.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.