Losing on jurisdiction
This is a key point and worth understanding before anything else.
The barrister doesn't actually mean "lose". The first thing an arbitrator must do is decide if they have jurisdiction to hear the arbitration. If they don't have jurisdiction the arbitration is over before it really begins and ends without a determination. If they do have jurisdiction then they will proceed to decide the arbitration "on the merits" - this results in a binding determination.
"Losing" on jurisdiction means that the dispute is unresolved and you move on to the next rung in the dispute resolution ladder. "Losing" on the merits means you're screwed and you pull out your cheque book.
Normally, the person who initiates the arbitration wants the arbitrator to have jurisdiction and its the other party who is trying to convince them that they don't. Or not - more often then not both parties are happy to have their dispute resolved by arbitration at this point. In this case, the person who initiates the arbitration wants it to fall over so they can do something else.
A barrister has three ethical duties: one to the court (or, in arbitration, to the arbitrator(s)), one to their client and one to their client's opponent. Using the Australian Bar Association Barristers' Conduct Rules as a guide (since all will be similar), the duties are:
To the tribunal: to act with independence in the administration of justice and to not knowingly mislead the court. There is no suggestion in the court that losing on jurisdictional ground thwarts justice nor that there is any intention to deceive the arbitrator(s). No ethical problems here.
To their client: "must promote and fearlessly and by all proper and lawful means the lay client's best interest to the best of the barrister's skill and diligence ..." but "must not act as the mere mouthpiece ... must exercise the judgements called for by the case independently". The client believes that it is in their best interests to lose this arbitration (I'll deal with why this might be so latter). If the barrister's independent judgement agrees with this assessment then there is no ethical problem here.
To the opponent: "must not knowingly make a false statement to the opponent". Again, no problems here.
Ethically, the barrister is on solid ground.
Tripple A arbitration
"Tripple A arbitration" refers to an arbitration conducted under the relevant rules of the American Arbitration Association. Remember the strategy here is to lose jurisdictionally an arbitration under the International Chamber of Commerce rules.
Is a doctrine that prevents a court or tribunal from considering a case unless and until all remedies available in another forum have been exhausted. For example, where I live in new-south-wales if you are unhappy with a government decision, you have to exhaust all administrative remedies before you can go to court. This usually means you have to follow the complaints/appeals process of the relevant government department, only when that is exhausted can you seek a hearing in the NSW Civil and Administrative Tribunal (which is not a court even though it operates like one - legally it is a branch of the executive, not the judiciary), failing there, you may be required to appeal to the discretion of the relevant Minister and only then can you go to court.
In this particular circumstance, the ICC arbitration was something that had to be done before an AAA arbitration could be started. This is possibly a contractual obligation or, more likely, the client was going to take someone else to the AAA Arbitration rather than the other party in ICC Arbitration, possibly the OPIC itself. This might be advantageous if, for example, you foresee problems collecting if you won the ICC Arbitration such as your opponent is a recalcitrant foreign government.
There are 2 possible outcomes of the ICC arbitration:
- The arbitrator(s) or a court decides that they do not have jurisdiction to conduct the arbitration. This leaves the dispute unresolved and, in this case, allows the forum to move on to the AAA arbitration.
- The arbitrator(s) or a court decides that they do have jurisdiction and the arbitration proceeds to its conclusion and someone wins and someone loses. Unless the arbitrator(s) have royally screwed up, this will be a final and binding determination - no appeals, the loser pays up.
The client wants No 1 and not No 2.
Some reasons why the might include:
- Different opponents as suggested above,
- They think their chances of winning on the merits are better under AAA rules than ICC rules,
- There may be higher limits on awards under AA rules than ICC rules.