[Last modified 2017-02-23]
Parties looking for an arbitrator will often wonder what to expect from a candidate under consideration. A 2016 article proposes a questionnaire to help reduce surprises. See Ema Vidak-Gojkovic, Lucy Greenwood and Michael McIlwrath, Puppies or Kittens? How To Better Match Arbitrators to Party Expectations, part IV-A, at 11 (Vienna International Arbitration Centre Yearbook 2016). [UPDATE Aug. 8, 2016: See also the authors’ survey-results report.] At the suggestion of a colleague, I’ve set out below my responses to the questionnaire.
1. Delegation: do you believe it is acceptable for an arbitrator to delegate work to a junior lawyer who is not a member of the tribunal?
DCT answer: 3 (it depends). This isn’t my practice (I’m a sole practitioner). In some circumstances, it might make sense for an arbitrator who practices in a firm to delegate research or drafting to a junior lawyer in the firm at a lower billing rate; the arbitrator should discuss this with the parties in advance.
2. Tribunal secretaries: do you believe that it is acceptable for a tribunal to appoint a secretary to assist it with the administrative tasks relating to the proceedings?
DCT answer: 3 (it depends). This isn’t my practice; it also might not be necessary if the arbitration is being administered by an institution. In any case, a proposal to appoint a tribunal secretary should be discussed with the parties in advance.
3. Preliminary or early decisions: do you believe it is appropriate for tribunals to attempt to identify and decide potentially dispositive issues early in a case, even if one of the parties does not consent to this?
DCT answer: 2 (sometimes). I look for potentially-dispositive issues, and I prefer that the tribunal and the parties collaborate in doing the same after disclosures and discovery (as applicable) have taken place.
In pre-hearing proceedings, though, I don’t decide such issues on my own initiative without first checking with the parties.
- Part of my job is to look for ways to help the parties control costs; it’d be unfortunate for the parties to spend time and money on proceedings that might have been avoided by early full- or partial summary disposition.
- On the other hand, I’m also sensitive to another possibility: One or both parties might have spotted the issue but kept silent for its own reasons.
If I were to think that an issue might be dispositive, then I might invite the parties to submit a motion and response, but absent such a motion, I normally wouldn’t decide the case summarily on that basis on my own initiative. And in any event:
- I’m mindful that the arbitration rules, the parties’ agreement, or both, might address the extent to which summary disposition is appropriate.
- Of course I’d give the parties notice and an opportunity to respond before deciding a dispositive issue on my own initiative.
4. Settlement facilitation: do you believe arbitral tribunals should offer to assist parties in reaching a settlement, and actively look for opportunities to do so?
DCT answer: 2 (sometimes).
(a) As I see it, the parties hired me to hear evidence and decide the case, not to push them to settle; as a general rule, I leave settlement discussions to the parties unless asked.
(b) At the initial scheduling conference, I encourage the parties to pursue settlement (possibly through mediation), especially as the facts become more clear. I will do what I can to support whatever settlement efforts the parties do make.
(c) If parties were to jointly ask me to help them reach a settlement, then I would try to do so — but without taking action that might reasonably be expected to raise doubts about my impartiality, because the parties might not settle, in which event I would still have to decide the case.
5. Early views of strengths and weaknesses of claims and defenses: do you believe arbitrators should provide parties with their preliminary views of the strengths and weaknesses of their claims and defenses?
DCT answer: 3 (it depends).
(a) To help the parties identify possible stipulations, I might offer neutrally-stated questions and/or observations about the likely difficulty (or the likely ease) of proving particular assertions.
(b) If the parties were to jointly ask, I might be in a position to provide an early neutral evaluation of the case.
(c) In any event, I strongly believe that it is my duty to keep an open mind until (i) each party has had a full and fair opportunity to submit evidence and arguments, and (ii) I have had a chance to fully consider each party’s submission.
6. IBA Rules of Evidence: do you believe international tribunals should apply the rules in proceedings even if one of the parties objects to their application?
DCT answer: 3 (it depends). My practice is to follow the parties’ agreement and the agreed arbitration rules; if those documents didn’t provide useful guidance as to a particular evidentiary issue, then the IBA Rules might represent a reasonable compromise between the American and European views. See also item 7 and item 16 below.
7. Document disclosure: do you believe it is appropriate for international tribunals to grant a party’s request for e-discovery?
DCT answer: 3 (it depends).
(a) I would follow the parties’ agreement and the arbitration rules to the extent that they expressly or implicitly addressed the issue.
(b) If those documents were silent on the question, I might well approve narrow, targeted e-discovery requests for specific documents (e.g., specific emails).
(c) Normally I’m not inclined to approve sweeping, look-under-every-rock discovery requests, electronic or otherwise, because:
- While counsel often want to find as much evidence as they can to support their case, such efforts can get very costly for both sides, sometimes resulting in little or no marginal benefit.
- Certainly counsel want to find out what documents might be used against them, but that goal can often be advanced by other means (see item 16 below).
- Unfortunately, sometimes counsel propound sweeping discovery requests so as to irritate and increase costs for the other side. Part of my job is to try to keep that from happening.
8. Skeleton arguments: do you prefer for parties to provide a summary of their arguments to the tribunal before the hearing?
DCT answer: 2 (sometimes). As discussed in item 16 below, in all but the simplest cases it can be helpful to go even farther than this question assumes.
(a) First, it’s almost always appropriate, early in the case, for the parties to exchange reasonably-detailed written statements of the following, to the extent not set forth in the pleadings:
(1) the specific material facts that the party intends to prove (and why those particular facts are material); and
(2) how the party currently intends to prove those facts.
This practice is recommended in section 11.33 of the Manual for Complex Litigation, published by the U.S. Federal Judicial Center (cites).
(b) In addition, in some cases it can save time if, before the hearing, the parties and I work together to prepare a timeline of events, preferably annotated with citations to the parties’ stipulations and to the then-available evidence.
These practices can help the parties save time and expense by:
- identifying possible stipulations and potentially-dispositive issues;
- focusing discovery (if any); and
- streamlining the presentation of evidence at the hearing.
9. Chair nominations: do you believe co-arbitrators should consult with the parties who appointed them before proposing names for a chair to the other coarbitrator?
DCT answer: 3 (it depends). I’m not opposed to this in principle, but the party-appointed arbitrators might be required to be neutral, in which case such consultations might be problematic.
10. Arbitrator interviews: are you available to be interviewed by the parties before being appointed (in accordance, for example, with the Guidelines for Arbitrator Interviews published by the Chartered Institute of Arbitrators)?
DCT answer: 1 (always). I’m happy to be interviewed “off the meter” for a reasonable period of time by parties looking for an arbitrator.
11. Arbitrator interviews: if you are appointed as a coarbitrator, do you think parties should interview a prospective chair that you and the other co-arbitrator have identified, before agreeing [to] the appointment?
DCT answer: 3 (it depends). I’d hope that the parties would take into account the recommendation of the “wing” arbitrators in appointing the panel chair, but I can’t imagine that I’d ever decline to serve as a wing arbitrator solely because the parties appointed a chair who hadn’t been recommended by the wings.
12. Counsel misconduct: for a counsel that has engaged in misconduct, do you generally take steps while the proceedings are underway, or include consideration of the misconduct in a subsequent award of costs, or do you believe it is not within the responsibility of the arbitral tribunal? (choose only one)
(a) Discipline during proceedings, immediately when misconduct occurs
(b) Discipline both during proceedings and in subsequent award on costs
(c) Take misconduct into consideration in cost award
(d) Do not believe counsel misconduct is responsibility of the tribunal
DCT answer: (b). Fortunately, I haven’t encountered counsel misconduct that was serious enough to require discipline. If I did, I expect that I’d proceed more or less as follows:
(a) During the proceedings, I’d impose tailored discipline, which in some cases might including an immediate award of relevant costs; and
(b) Later, if awarding costs for the entire case, I’d take the misconduct into account as appropriate;
(c) I’d always focus on keeping the proceedings on track while remaining fair to both parties (and always after notice and opportunity to be heard).
13. Costs: do you believe it is appropriate for a party to recover all of its reasonable costs (including counsel fees) if it has prevailed on its claims or defenses?
DCT answer: 2 (sometimes).
(a) I’m not opposed to awarding a party all of its costs if permitted by the parties’ agreement, including the agreed arbitration rules.
(b) Absent an agreement otherwise, I would expect that a party seeking its costs would provide reasonable supporting documentation, for example in accordance with traditional American practice.
(c) If the parties’ agreement gave me any flexibility, I’d normally consider the circumstances, including for example the difficulties and uncertainties of the issues presented and the parties’ conduct during the case.
14. Costs: do you believe it is appropriate for a party to recover the reasonable costs of any in-house counsel who conducted or assisted the party’s conduct of the arbitration?
DCT answer: 2 (sometimes). See #13 above. Where in-house counsel serve as lead- or assisting counsel, their costs should be treated in the same way as if they were outside counsel.
15. Do you view yourself as conducting proceedings more in the style of the common law, the civil law, or no preference / depends on situation?
DCT response: 4 (more civil than common law).
(a) I’m comfortable conducting arbitration proceedings in the common-law tradition, in which I was trained and in which I practice.
(b) In my view, though, the goals of arbitration might be better served, in some respects, by what I understand to be some of the practices used in civil-law jurisdictions. This stems from my view that, to the extent practicable, an arbitration should be managed as a business matter, as discussed in item 16 below.
In my view, an arbitration proceeding should be managed as an expedited, joint business project whose “deliverables” are the final evidentiary record and the final award. This view has been shaped in part by past experience as an arbitrator; as vice president and general counsel of a Nasdaq company; as a law-firm litigator; and as part of the leadership teams of bar associations and other voluntary organizations. (For more details, please see my “About” page and LinkedIn page.)
With the parties’ consent or as authorized by the agreed arbitration rules, I prefer to manage arbitration proceedings along generally the following lines:
If the parties have submitted detailed pleadings, then before the initial scheduling conference call, I will often consolidate the parties’ assertions, along with my initial questions about the case, into a skeleton draft of a “Hearing Plan” for use as a guide to disclosures, discovery, and the hearing proceeding.
Below is a (sanitized) excerpt of a skeleton Hearing Plan that I recently prepared for the initial scheduling conference call in a case in which I was the sole arbitrator:
- AAAAA Inc. (“Claimant”) is a [State] corporation.
Claimant position & evidence: Pled in Demand ¶2.
Respondent position & evidence: Stipulated.
* * *
9. During his trips to [State] as Regional Sales Manager for Claimant, Respondent stayed in an apartment in [City] that was provided by Claimant.
Claimant position & evidence: Pled in Demand ¶ 15.
Respondent position & evidence:
(This early organizing of the case will sometimes help facilitate settlement discussions.)
The idea of preparing a skeleton Hearing Plan is informed in part by:
- AAA Commercial Rule R-32(b), which provides that “[t]he arbitrator, exercising his or her discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute and may … direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case” (emphasis added);
- The arbitrator code of ethics of the American Arbitration Association, which contemplates that arbitrators will “engage in discourse with the parties or their counsel, draw out arguments or contentions [and] comment on the law or evidence …. These activities are integral parts of an arbitration.” Commentary, Canon I of the AAA’s Code of Ethics for Arbitrators in Commercial Disputes (emphasis added), available at https://goo.gl/kbAmoX (ADR.org); and
- The federal courts’ Manual for Complex Litigation, which recommends that at the initial pre-trial conference in complex cases, “the judge should require the attorneys to describe the material facts they intend to prove and how they intend to prove them,” Federal Judicial Center, Manual for Complex Litigation § 11.33 at 44 (4th ed. 2004), and that judges “requir[e], with respect to one or more issues, that the parties present a detailed statement of their contentions, with supporting facts and evidence ….” Id. at 46.
As soon as practicable after the (brief) initial scheduling-conference call, the parties should exchange the following, to the extent known to them at the time:
(i) specific, detailed, written contentions concerning “what happened” and what I should do about it (and why), to the extent not already stated in the pleadings — ideally, those contentions will be consolidated into a joint revision of the Hearing Plan;
(ii) all exhibits that the parties might use at the hearing, to the best of their present knowledge; and
(iii) preliminary “will say” statements, i.e., initial outlines of written witness statements to be used at the hearing as set forth in part 5 below.
All of these initial disclosures should be seasonably revised and/or supplemented as the case progresses.
After these initial disclosures, the parties and I would have a second conference call to firm up the overall schedule and to look for opportunities for stipulation and/or summary disposition.
In aid of this effort, I likely would question the parties about their specific factual contentions and how they intend to prove them, as recommended in section 11.33 of the Manual for Complex Litigation, published by the U.S. Federal Judicial Center (cites).
(a) At the first scheduling call, I typically outline some less-expensive alternative discovery methods that the parties could consider.
(b) As a general rule, the costly, “let’s allow counsel to look under every rock” approach to discovery should not be used in arbitration unless expressly authorized by the agreed arbitration rules or expressly agreed to by the parties.
(c) If targeted discovery requests are permitted, they should preferably be turned around quickly, e.g., in five to ten business days if possible.
(d) Any third-party discovery subpoena that a party wishes me to sign is to include a prominent citation of my legal authority to do so, mainly to help educate the third party and its counsel. For a survey of relevant case law, see generally Liz Kramer, Document subpoenas to third parties (ArbitrationNation.com 2012).
4. MOTION PRACTICE
Motions and other requests should be handled on a fast-track basis by email, conference call, or both. I make myself available for conference calls on reasonably-short notice and quickly turn around decisions on motions.
In traditional dispositive-motion practice, counsel will normally spend considerable time and money in writing an opening brief, a response, a reply, etc. Before that expense is incurred, I prefer holding an informal telephone conference call where counsel and I can review the updated Hearing Plan and explore whether an early disposition can realistically be expected.
(a) If a Hearing Plan has not been prepared and updated, then in all but the simplest cases, it likely would be preferable for counsel, before the hearing, to bring me up to speed about the basic chronology and disputed issues of the case. Among other benefits, such an approach:
(i) helps me, at the hearing, to rule more quickly on evidentiary objections, with a better sense for how the proffered evidence fits into the context of the case; and
(ii) might allow counsel to shorten their opening statements.
(b) Direct testimony should preferably be presented mainly by written witness statement — orally adopted and briefly summarized by the witness, followed by oral cross-examination. This is a common practice in international arbitration and in many U.S. federal-court bench trials (cites); it can save considerable time overall as well reducing the cost of a court reporter.
(c) To the extent practicable, testimony of multiple witnesses on a common subject should preferably be conducted in a witness-panel format — especially in the case of expert witnesses, which is sometimes referred to as “hot-tubbing” the experts (cites).
(d) Where possible, exhibits and written witness statements should be submitted in the form of a joint appendix or joint “bundle” for easy reference. (Exhibits used solely for impeachment might require different treatment, of course.)
Within the appendix or bundle, it’s often useful for exhibits to be arranged in chronological order so that they help to “tell the story.”
Except for exhibits used solely for impeachment, to save hearing time:
- exhibits should normally be pre-marked; and
- exhibits not objected to in advance should normally be admitted; see also subparagraph (f) below.
(f) As to evidentiary objections: Absent a controlling rule or agreement otherwise, the most cost-effective approach to evidentiary issues will often be for me:
(i) to be relatively liberal in admitting arguably-relevant, noncumulative evidence, but then
(ii) later, to carefully assess how much weight to give to any particular item of evidence based on its apparent probative value and reliability.
(g) Early in the case, the parties and I should discuss whether it might be appropriate (with the parties’ consent) for me to engage a neutral expert, in addition to — or if so agreed, in lieu of — party-appointed experts.
(h) Third-party subpoenas for the hearing should clearly state the authority by which the subpoena is issued, again to help educate the person(s) being served. For U.S. cases in which the Federal Arbitration Act applies, consider whether the subpoena should be denominated as a “witness summons.” See generally A Model Federal Arbitration Summons to Testify and Present Documentary Evidence at an Arbitration Hearing, by the International Commercial Disputes Committee and the Arbitration Committee of the New York City Bar Association (NYCBar.org 2015).
At the close of the evidence, before adjourning the hearing, I typically offer to do the following, subject to each party’s agreement:
(i) summarize, then and there, my tentative impressions of the evidence and how the law applies to it, so as to help the parties prepare their post-hearing briefs; and
(ii) later, circulate a draft award (possibly in outline form) and give the parties a reasonable period of time to review and comment on the draft, before issuing the final award.