The Arbitrators - Chapter 4 - Behind the Scenes in International Arbitration
Ugo Draetta is Professor of International Law at the Catholic University of Milan, Italy. As an international arbitrator, he has acted in over 50 arbitration proceedings. Mr. Draetta is former Vice President and Senior Counsel -- International -- for General Electric Co. (USA); member of the Scientific Committee of the Italian Arbitration Association; member of the Board of editors of the Revue de droit des affaires internationales/ International Business Law Journal, published by Sweet & Maxwell. For more information see www.ugodraetta.com
Originally from Behind the Scenes in International Arbitration
CHAPTER FOUR -- THE ARBITRATORS
I. THE VARIOUS WAYS IN WHICH ARBITRATORS CAN IRRITATE COUNSEL FOR THE PARTIES
I have already had occasion to repeat the well-worn saying that “arbitration is only as good as the arbitrators”. The arbitrators are the key players in the arbitral proceedings and their level of capability and quality is decisive in ensuring that the process functions properly.
International arbitrators inhabit a world of their own, which tends to resemble a closed shop or club, so much so that “Mafia” is jokingly said to stand for “Mutual Association For International Arbitration”. Its members communicate by taking part in arbitrations, attending conferences and writing in learned journals. They have no professional governing body with its own codes and disciplinary organs, nor are there any official (or at any rate trustworthy) lists or rankings of arbitrators.1 In order to achieve a successful career, an arbitrator can really only rely on his or her reputation and credibility. This is his or her most precious asset, as it takes long years to build, but can be very quickly lost as the result of one glaring error, news of which soon travels by word of mouth round the circles that count (essentially outside and inhouse counsel, other arbitrators and arbitral institutions). In reality, most arbitrators come to be selected on the basis of information passed on by word of mouth. Once that reputation and credibility is lost, it is usually never recovered. This fact is well known to all arbitrators, especially Chairpersons, of whom it is sometimes said that they take on too many commitments and are then unable to fulfil them.
21. The various ways in which arbitrators can irritate counsel for the parties: (a) Coming unprepared to the hearings; (b) Conducting internal debates during the hearings; (c) Maintaining arrogant or inappropriate attitudes towards counsel; (d) Believing themselves to be better than counsel; (e) Showing lack of respect for the procedure; (f) Not checking in a timely manner for conflicts of interest; (g) Indulging in the prima donna syndrome.
22. Co-arbitrators in particular.
23. The Chairperson of the Arbitral Tribunal in particular: (a) Availability and preparation;
24. ... (b) The efficient management of the arbitration proceedings.
25. Ways in which the Chairperson can facilitate a settlement between the parties: (a) General remarks;
26. ... (b) Indirectly;
27. ...(c) Directly (by communicating the preliminary opinions of the arbitrators, participating in settlement negotiations, caucusing).
28. The loneliness of the sole arbitrator.
29. Memo to arbitrators.