INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH LOUKAS MISTELIS 07
That particular formula you mentioned resonates with a Germanic-style legal training, where you relay the arguments to see what is to be decided, and what is not to be decided. I don’t have a problem with this formula in itself, but I do if the tribunal doesn’t add enough independent reasoning; particularly if it fails to provide the intellectual input for which it is well paid. That’s why I object to the use of secretaries in writing awards as a matter of principle. At the same time, you have to paraphrase as much as possible when writing awards. I don’t see the value in awards running into hundreds of pages – it’s not helpful to the practice or the parties. What is important is the intellectual input of the tribunal in trying to identify the issue and resolve it: if that’s not prominent there’s potential for a negative effect on the system.
I’ve also seen the ‘less-active’ arbitrator who waits until the end of the hearing before beginning any deliberations in relation to the award. In other cases, there may be a fact-finding based discussion between the arbitrators which goes something like: ‘We’re going into the hearing, what are your expectations? What do you think is going to be a problem? How do you think the case will go at this stage?’ This can go on for an hour or two, followed by a short deliberation at the end of the hearing, and then the distribution of tasks. BEN And which approach would you consider to be ‘best practice’? LOUKAS In an ideal world, parties should receive the ‘hands-on’ chair because the chair is paid much more than the other arbitrators! While the normal division of labour among panel members and the allocation of arbitrator fees is along the lines of 40/30/30, with a good chair it will be 50/25/25. I’ve seen the ‘less active’ route working well if a lot of ground work has been done before the hearing but, unfortunately, that doesn’t tend to happen so it’s often ineffective. There are generally a lot of small details that contribute to the way tasks are distributed – language, for example. Often all members of the tribunal are operating in a second language, which may be another reason why written submissions are so heavily relied on to form part of the award. If one arbitrator has stronger writing skills in the relevant language, there’s nothing wrong with delegating more of the writing to that person. BEN Yes, but as a user you need to understand what the process is. So you need to know if you’re dealing with a situation where the chair is going to write the award, and is therefore the most important player. Essentially, you need to understand how the game is being played. In the UK, wingmen often write the award because they’re a particularly eminent barrister or former Judge, or may have a particular understanding of the type of dispute. The chair will still run the process, but one of the wingmen will do all the work.
From a user’s perspective, it’s helpful to understand how the tribunal is operating because that affects how you present the case and how you react to the arbitrators. LOUKAS Roles and responsibilities aren’t clear, even to the arbitrators themselves sometimes. I was in a tribunal a few years ago where one of the arbitrators was a bit of a show-off; he kept trying to explain things to the parties, and in the end he interfered too much and undermined the chair. I almost felt as though there were two chairs, so it must have been very confusing for the parties. On a different case, the chair was notoriously lazy – this did not go down very well with me and my colleague – but the parties wouldn’t have been aware of it. I’m sure we’ve all seen lots of stylistic differences amongst arbitrators. I’ve been in cases where chairs didn’t even like co-arbitrators asking questions, but that’s less common. I believe every arbitrator has to justify their existence by contributing to the debate and cross examination; but a quiet arbitrator isn’t necessarily inactive. Most importantly, I agree with you that the tribunal should be reasonably transparent in how it operates, so that parties can follow the process.
THE SECRETS OF THE DELIBERATION ROOM
BEN Can I ask you about the secrets of the arbitration deliberation room? We’re very familiar with the approach of having three arbitrators; whether they’re all of the same status, or a chair and two wingmen. In your experience, is there much difference in the roles of party appointed arbitrators as compared with the chair? Particularly how they interact with one another, and whether you think there’s ‘best practice’. Or does it depend on the personalities of the individuals? LOUKAS I’ve seen different styles... There’s the ‘hands-on’ chair who will do a full first draft on his or her own, to be circulated for considered deliberation. Sometimes, but not very often, the chair will go to a hearing with effectively three-quarters of the award written. The draft will contain points for deliberation, reasoning and – on occasions where it’s very clear – the outcome, or possible outcomes. This is fairly common practice among continental European arbitrators.
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