Originally from The American Review of International Arbitration (ARIA)

PREVIEW PAGE

I.  INTRODUCTION

When I was asked to contribute to this important book on the issue, I resisted the urge to quote Piero Calamandrei’s classic work, Eulogy of Judges Written by a Lawyer.  Of course, I lack the great Italian jurist’s talent and elegance, and I would also be writing about my obligations, as I function as an arbitrator and so would never be subjected to the sin of cabotinism.

In a nutshell, the arbitrator’s mission is to settle the claim by applying the relevant legal rules to the facts of the case. A simple concept in formulation, but complex in application, both domestically and internationally.

In fact, to fulfill his role properly, the arbitrator must have significant personal and professional characteristics, which include useful interaction with the parties and their lawyers, all of whom, along with the arbitral institution – when it is active – are responsible, to varying degrees, for the success of the arbitration process. Apart from the numerous occasions in which losers complain about the outcome, expressing their disappointment with the institute, but disregarding the potential of their defeat also occurring before the Judiciary, for the simple reason that they do not have a good case.

Full-time arbitrators are typically lawyers, professors, or former judges, both in Brazil and elsewhere. However, most arbitrators are still practicing attorneys, partners, or associates of law firms (which raises the risk of possible conflicts), and there are also professionals from other fields, such as economists, administrators, and engineers.

Appointment as an arbitrator is, in some ways, recognition by peers and parties that the candidate has the moral and intellectual qualities to carry out the high duty of deciding a dispute. More precisely, from the perspective of litigation lawyers, this is a one-of-a-kind and incredibly useful experience that allows them to enhance their legal practice by understanding how to assess the weight of multiple arguments in convincing the judge. In this regard, I feel that an effective lawyer is one who discovers three arguments to win a case; a great lawyer finds five; an excellent lawyer finds seven; and an extraordinary lawyer recognizes which of the seven arguments is the finest, or his/her “winning horse.” And serving as an arbitrator refines and develops this impression by inviting you to engage in a logical exercise for which you are not always prepared, namely meditating on who is correct from an unbiased and non-partisan standpoint.

Naturally, within the narrow confines of this text, I do not intend to offer anything new that other excellent authors have not already published on the role of the arbitrator in Brazil. Many of them have written appropriately, because – to recall the sports announcer who gives the floor to the commentator, a former football player – [you give him the floor because he’s] “the one who knows[,] because he’s been on the pitch.”