Originally from Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42

DAVID W. RIVKIN:

My thesis is that the black box should be as open as possible, as shown in Bernhard’s last slide. I think that the earlier and more often the arbitrators can discuss the issues, the better it will be for the process for building a consensus around a final award but also for shaping the process to be the most appropriate for the case. That also means that in appropriate ways and at appropriate times, the parties should understand the issues as the arbitrators are then seeing them, so that concerns can be met and the process can be focused on the issues that are most important to the deliberations and to the final award.

I say this whether I am wearing my hat as counsel for a party or my hat as arbitrator. As counsel for a party, I want to hear from the arbitrators what their thinking is, what their reactions are to the evidence and the arguments made, so that I can make sure I am addressing any particular concerns they have and also so that I do not present them with information or argument that will be unnecessary to their deliberations. As arbitrator, it leads to a more efficient process. I think it helps eventually gain unanimity and comfort among everyone involved.

I think that deliberations in some sense—not deliberations on the final result of course, but deliberations about the issues and how the arbitrators see the case unfolding, deliberations about where the focus of evidence and argument should be—that type of deliberation should begin as early as possible, including at the procedural conference. This is one reason why an in-person procedural conference, even if it means travel, even if it means time away, will often be much more effective than doing a relatively short telephone conference that simply sets procedures going forward. If you are together, if the arbitrators have read the papers that have already been submitted, if they can begin thinking about the types of issues they are going to have to decide and what the parties are going to present to them, it will help them shape the procedure that is appropriate to that case.