Originally from The Arbitrator's Initiative: When, Why and How Should It Be Used? - ASA Special Series No. 45

1.    INTRODUCTION

There is a widespread trend in international arbitration which calls arbitrators to stop regarding their main duty purely in terms of “decision making” and start considering their role in much broader terms.  

If the general proposition that the arbitrator’s ultimate task is to determine a dispute between the parties, the ways in which such a task may actually be performed by an arbitrator may vary.  Recent revisions of international arbitration rules and arbitration guidelines show that great emphasis has been placed by arbitral institutions on the role of arbitrators as “dispute managers” as opposed to “adjudicators.” 

As a “dispute manager” an arbitrator is confronted with a number of tasks which range from the traditional activities which need to be carried out in order for the arbitration proceedings to run smoothly to the perhaps less common (pro)active initiatives that arbitrators are encouraged or required to take with respect to the settlement of the dispute before the final award is rendered.

If on the one hand arbitration rules and guidelines have raised awareness of the arbitrator’s possible role as a settlement facilitator, on the other hand they do not provide indications and/or suggestions as to how an arbitrator should actually exercise such a role.  

For good or ill arbitrators are seen to behave in accordance with their national procedural background.  Arbitrators from certain jurisdictions such as Switzerland, Germany or Austria may therefore take a more proactive stance towards the parties’ declared readiness to embark on settlement talks than arbitrators coming from other jurisdictions.

This paper will first analyse the arbitrator’s “new” role as it emerges from international arbitration rules and guidelines (see section 2 below); second, it will  make some references to the practice followed in selected civil law jurisdictions (see section 3 below), and it will finally deal with the question whether – irrespective of the arbitrator’s legal culture – there are any rules that an arbitrator would be well-advised to follow when she or he approaches the parties with a view to exploring whether there is any scope for the settlement of the dispute (see section 4 below).