[Last modified 2017-04-20]
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.
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. Please see the arbitration procedures document for some specific preferences of mine.