Question & Answers on My Activity as an Arbitrator
1 January 2021
Do I work with a back office or a secretary?
As a lawyer in private practice, I work with three associates.
As an arbitrator, I handle the matters myself.
In complex matters, mostly international, I may ask for parties' approval to allow the panel to work with a secretary. In complex matters with three arbitrators, the use of a tribunal secretary may add to the efficiency of the arbitration, reducing both the duration and the costs of the proceedings. The use of a tribunal secretary in such cases also allows more junior talent to acquire experience in arbitration, and it provides seasoned arbitrators with an excellent opportunity to share their knowledge with the next generation of arbitrators. Of course, transparency is key. The role of the tribunal secretary must be clearly defined, and parties to an arbitration must be given the opportunity to openly discuss the involvement and the role of a tribunal secretary. The tribunal secretary should never become a fourth arbitrator. A tribunal secretary should assist the tribunal, but the tribunal must deliberate and decide independently. In cases where I am of the opinion (as a result of my experience) that the involvement of a secretary reduced the amount of attention given by a particular co-arbitrator to the matter, I will oppose the use of a tribunal secretary when that co-arbitrator is appointed in a new matter.
How much does my approach vary, case to case?
Flexibility is one of the main advantages of arbitration. My approach varies a lot in function of the parties. Parties having less experience in arbitration may require more guidance, and are, in my experience, better served with a more commanding panel. In general, more leeway can be given to more experienced parties, provided they refrain from using guerrilla tactics.
My guiding principle is to be pragmatic and to remain conscious of the fact that one party may want to move forward, and others to stall.
I always make sure that I am familiar with the applicable rules, no matter which case is at hand or which institute is administering the arbitration. I make it my business to understand the applicable practice and industry and their rules with a view to delivering a high standard decision and orders, regardless of the relevant industry or practice.
I may be more pragmatic in expedited procedures and in matters where parties themselves show flexibility.
My approach to proposing settlement mid case
I would typically assess a proposal if the case has reached some maturity and counsel have shown flexibility or even requested an initiative by the panel.
However, I would discuss such a proposal with counsel only, and I would only proceed with their prior express consent and subject to their express understanding and agreement that in the event of a settlement failure, the panel would be allowed to continue handling the arbitration. A key question is whether the settlement discussions can be distinguished, either in time or subject matter, from the issues in the arbitration. E.g., the chances of there being settlement discussions are relatively high when the issues on which the panel must rule concern historical events and when the settlement discussions primarily focus on the future. If, however, there is a risk that confidential information may be shared with the tribunal during settlement discussions which could impact the assessment of the case, it will not be possible for the tribunal to mediate, in my view. I see two solutions for such a case: first, if the case and the parties' positions have been fully presented by both parties to their satisfaction, the panel could render an award under closed envelope, allowing the panel to proceed with the procedural aspects only if the settlement fails; second, the panel could propose the appointment of a third-party mediator.
For conflicts which are potentially broader than the dispute under review (e.g., where there is a risk that the dispute will arise again sometime in the near future), I would advise the parties to concert and negotiate the outcome of this scenario.
My approach to identifying potentially dispositive issues early
I have no objection to this identification as long as the panel is in agreement, the parties and their counsel are both given an equal opportunity to comment, and the identification does not prematurely impact the due process of the arbitration and the right to present one's case.
Identifying potentially dispositive issues early can have the advantage of narrowing the focus of the proceedings at an early stage, which is likely to speed things up and reduce cost.
As an example, the identification of dispositive issues may allow parties to reassess their position or approach to a case. I experienced the benefits of such identification in an international commercial arbitration where neither party had developed the appropriate legal approach because both law firms were unfamiliar with the legal concepts involved. The panel members unanimously agreed to proceed with the identification of dispositive legal issues and the counsel went back to the drawing board and understood that a new presentation was essential and in both parties' interest.
My approach to indicating the strengths or weaknesses of cases early
I would be reluctant to do so at an early stage in the proceedings, as such identification may be interpreted as a biased approach. But during the later stages of a case (e.g., when preparing for a significant hearing), identifying the main issues at hand can serve as an important cost and time saver.
How often do I use the IBA rules of evidence? Will I do it against one side's wishes?
Quite often. I find these a very useful tool, especially in arbitrations between parties from different legal systems. I consider it to be a useful compromise between the common law and the civil law approach on evidence.
I would generally not use the rules against a party's wishes. But I would suggest to my co-arbitrators that the issue be ruled upon as an interim order, after raising the question with all parties and allowing all to comment and to subsequently reply to one another's comments. If the use of the IBA rules would benefit the arbitration, it is worth trying to convince parties and to ultimately have both parties accept a presentation of evidence in a manner that is acceptable to both parties. However, if no agreement can be found, the panel should analyse whether the use of the IBA rules is possible according to the lex arbitri without the risk that the award be annulled.
Do I encourage the use of skeleton arguments?
Yes. It allows parties to structure and better present their case and fine tune with one another's approach. It also allows the arbitrators to better understand the case and the respective approaches and to raise appropriate questions. In my opinion, the use of skeleton arguments allows parties, counsel and panel members to speed up the in-depth analysis of the real issues at stake.
Do I encourage the use of discovery?
In most cases, parties will raise a request for discovery if they consider it appropriate or beneficial for their case. I would allow for discovery, and would also in rare circumstances actively encourage the use of discovery, where it is appropriate under the law applicable to the merits of the case and/or the applicable procedural rules. In other cases, I may raise the advantages of using discovery with the parties and their counsel first and allow them to comment on this and to subsequently reply to one another's comments. After all, discovery may substantially impact the speed of the procedure and considerably increase the costs. Arbitrators are expected to be cautious when considering suggestions that may impact the basic advantages of an arbitration procedure.
As a co-arbitrator - will I ever consult with the party who appointed me on the identity of the chair?
Only if that is allowed under the applicable rules, and to the extent all parties agree that it would be beneficial to the arbitral procedure. If not, no, under no pretext. I would expect the party that nominated me as co-arbitrator to trust my judgment and, when allowed, to limit consultations on the identity of the chair to a strict minimum. In my view, co-arbitrators should not be allowed to become negotiating proxies for the parties who appointed them. When that happens, the co-arbitrators' involvement generally becomes an impediment to reaching an agreement on the appointment of a suitable chair. I have in the past sometimes proposed that counsel to the parties negotiate among themselves, and quite often this works out well.
As co-arbitrator – am I in favour of the parties interviewing candidates for chair that you have identified before any final appointment?
My preference on the presentation of evidence
Regarding written evidence, I prefer counsel to use a unified numbering system from the outset and to organize documents in pre-determined well defined sections. As an example, procedural evidence should be separated from evidence that is pre-contractual, contractual, problem related, and so on. Adding structure and accessibility is the aim and repetition should be avoided.
Also, I encourage counsel to concert in so far as is possible, with a view to them agreeing on as many factual and legal elements of the dispute as possible. This speeds up the procedure and helps arbitrators to focus on the remaining unresolved issues.
With respect to assessing witnesses and expert witnesses, I have no outright preference.
Witness conferencing (aka "hot tubbing") can be a very useful technique. In complex arbitrations, it may reduce the time spent by the tribunal, and, as each witness speaks under the control of his or her peers, witnesses are generally disinclined to lie. As fact witnesses are able to supplement and correct each other during the conference, this may contribute to a more complete and accurate picture of the factual situation. However, although the tribunal might save time during the hearing, more time is needed for preparing the logistics and synchronising the agendas of all participants. Also, it should not be forgotten that there is cost involved in having the fact witnesses participate in a conference, which may take longer than the classic examination and cross-examination of witnesses. That is why the desirability for witness conferencing should be assessed with great care, depending on the circumstances of the case. In my experience, witness conferencing requires a pro-active arbitral tribunal and chair.
My approach to counsel misconduct. Do I prefer to deal with it there and then or to wait until the end of the case?
I would deal with it sooner rather than later to prevent the problem escalating. To the extent possible, I try to limit the impact on the dispositive issues of the parties. After all, we expect the behavior of gentlemen and women and professionalism in the broadest sense of the word. Parties should not either suffer or benefit from the misconduct of a counsel.
My usual approach to costs
I prefer parties to know and agree from the outset what costs apply, who will ultimately bear them (e.g., loser pays principle or not), and who and how they must be advanced. Any discussion on substantiation, coverage, height, reimbursement, etc. should take place as early as possible in the procedure. I would promote transparency and interim reporting to allow the parties to assess the costs as the procedure progresses. Interim reporting is of course subject to the parties' agreement, as revealing costs during the proceedings could impact a party's strategy.
A ‘normal' turnaround time for me to deliver an award (assuming no exceptional circumstances)
As a sole arbitrator, a usual time is two to three months in complex cases.
As a co-arbitrator or chair, the turnaround time naturally depends partially on co-arbitrators whom I have not necessarily selected or helped to select. I usually advocate a speedy delivery and I do not hesitate to remind my co-arbitrators of commitments and/or promises made to parties and their counsel. In most instances, I have succeeded in delivering an award as co-arbitrator or chair in two to three months for complex cases.
My procedural style: closer to common or civil law?
My procedural style can be seen as a balanced mixture of both legal systems, forged by my extensive experience as counsel in common law cases and my original training as a civil law lawyer.
My policy on cancellations
If an arbitration is cancelled, I usually charge for the time spent prior to notification of the cancellation. Subject to the terms of reference and the arbitration rules, I may ask for compensation for the cancellation or adjournment of pre-agreed meetings, the time for which I cannot re-book with other paying work.
Have I ever been challenged? Is it reported?
I have never been challenged.
How booked up do I tend to be?
I tend to be booked for a maximum of 8 months for up to 4 international cases. If smaller cases allow me to fill in gaps, I may consider accepting them.
Any types of appointment or case that I prefer not to accept (e.g., construction disputes, investor appointments in investor-state disputes)
I am open to any type of appointment.
My particular areas of specialist knowledge (legal or industry-related)
Information technology, telecommunications, intellectual property, media, construction and energy.