Arbitration Materials - Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42
Bernhard Berger is a Partner in the international arbitration practice of Kellerhals Attorneys at Law, in Berne, Switzerland. He has served as chair, sole arbitrator, co-arbitrator and counsel in numerous international and domestic arbitrations under the ICC, SCAI, LCIA, SIAC, CAS, and UNCITRAL Rules; and in other ad hoc proceedings. Mr Berger's experience also includes various appearances as legal expert on Swiss arbitration law in arbitration and court proceedings both in Switzerland and abroad; and as counsel in arbitration-related Swiss court proceedings, namely on the recognition and enforcement, setting aside, and revision of awards. Mr Berger has an LL.M. from Harvard Law School and a Ph.D. (Dr. iur.) from the University of Berne Faculty of Law. He has authored numerous treatises and articles in the fields of international arbitration, civil procedure and contract law, including International and Domestic Arbitration in Switzerland (2010) and Allgemeines Schuldrecht (2012).
Michael E. Schneider is the President of the Swiss Arbitration Association (ASA). Mr Schneider, founding Partner of LALIVE in Geneva, has practiced international arbitration for more than 35 years, acting as counsel before arbitration tribunals under various rules, including those of the ICC, ICSID, LCIA, Stockholm Institute, the Cairo Regional Centre for International Commercial Arbitration (CRCICA), European Development Fund, UNCITRAL and before other international bodies, including the WTO Appellate Body and the United Nations Compensation Commission (UNCC). He has also been sitting as arbitrator (chair, sole or co-arbitrator) under the rules of many institutions in Switzerland and abroad. Mr Schneider is Vice Chair of the ICC Commission on Arbitration, and has been a member of several of its working groups (1998 Revision of the ICC Rules, Construction, Pre-arbitral Referee). He chaired the UNCITRAL Working Group II (Arbitration) on the revision of the Arbitration Rules (2006 to 2010) and is a member of the executive committee of the Dubai International Arbitration Centre (DIAC) and of its Board of Trustees as well as a member of the Board of Trustees of the Cairo Regional Center of International Commercial Arbitration (CRCICA).
The case was mainly about an early termination of a long term supply contract whereby the question of whether or not the early termination was valid/invalid played a major role. The other questions were somewhat subsidiary to this principal decision and it was obvious that the Arbitral Tribunal will be split over the termination issue (as the parties were). There were procedural issues as well, over which the par- ties carried out bitter disputes.
The applicable law was from a Southern European (civil law) country, other than Switzerland. All parties, party representatives and all arbitrators, except for the Swiss Chairman, were from that Southern European Country (hereinafter referred to as “XY”).
The decision tree was meant and did serve the Arbitrators to (1) define their respective positions on the many issues internally and (2) thereafter to “negotiate” solutions on the overall issues. The outcome was a unanimous decision in the end.