INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH LOUK AS MISTELIS 07
That particular formula youmentioned resonates with a Germanic-style legal training, where you relay the arguments to see what is to be decided, andwhat is not to be decided. I don’t have a problemwith 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 amatter of principle. At the same time, you have to paraphrase asmuch as possible whenwriting 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. 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 theremuch difference in the roles of party appointed arbitrators as comparedwith the chair? Particularly how they interact with one another, andwhether you think there’s ‘best practice’. Or does it depend on the personalities of the individuals? LOUK A S 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 awardwritten. 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. T HE SECRE T S OF T HE DEL I BER AT I ON ROOM
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, theremay 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? Howdo 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 Andwhich approachwould you consider to be ‘best practice’? LOUK A S In an ideal world, parties should receive the ‘hands-on’ chair because the chair is paidmuchmore 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, whichmay be another reasonwhywritten submissions are so heavily relied on to formpart of the award. If one arbitrator has stronger writing skills in the relevant language, there’s nothing wrong with delegatingmore of the writing to that person. BEN Yes, but as a user you need to understandwhat the process is. So you need to know if you’re dealing with a situationwhere the chair is going to write the award, and is therefore themost important player. Essentially, you need to understand how the game is being played. In theUK, wingmenoftenwrite theawardbecause they’rea particularlyeminent barrister or former Judge, ormayhavea particular understandingof the typeof dispute. The chair will still run theprocess, but oneof thewingmenwill doall thework.
Froma user’s perspective, it’s helpful to understand how the tribunal is operating because that affects howyou present the case and howyou react to the arbitrators. LOUK A S Roles and responsibilities aren’t clear, even to the arbitrators themselves sometimes. I was in a tribunal a fewyears 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 toomuch 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 withme andmy colleague – but the parties wouldn’t have been aware of it. I’msure 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.
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