The Arbitrators' Perspective: Judging and Justification in the Face of Subconscious Influences and Cultural Differences - World Arbitration and Mediation Review, Vol. 9 No. 4
Susan D. Franck is a Professor of Law at Washington & Lee University and will be a Visiting Professor of Law at Fordham Law School focusing on international economic law and dispute resolution. Professor Franck has authored articles appearing in the American Journal of International Law, Duke Law Journal, Fordham Law Review, Minnesota Law Review, Washington University Law Review, Virginia Journal of International Law, and Harvard Journal of International Law. She also practiced international arbitration at Wilmer Hale and Allen & Overy. Professor Franck is an elected member of the American Law Institute, Vice-Chair of the Academic Council of the ITA, and former co-chair of the American Society of International Law’s International Economic Law Interest Group.
John Crook teaches international arbitration at George Washington University Law School and frequently acts as an arbitrator in investment treaty cases in ICSID, the PCA, and other settings. During three decades in the US State Department’s Office of the Legal Adviser, he was US Agent at the Iran-US Claims Tribunal and was deeply involved in creating the UN Compensation Commission. He later was General Counsel of the Multinational Force and Observers (which operates peacekeepers in the Sinai Desert) and a member of the Eritrea-Ethiopia Claims Commission. Mr. Crook is past vice-president of the American Society of International Law and a member of the Board of Editors of the American Journal of International Law.
Dominique Brown-Berset is a partner of Brown&Page, a law firm specializing in dispute resolution, contract and commercial law, and public international law. She practices mainly in the field of international arbitration and business transactions. She is listed, inter alia, on the CAS, HKIAC, JCAA, SIAC, KLRCA panels of arbitrators. She holds law degrees from Lausanne University Law School (Switzerland), Paris I, Panthéon-Sorbonne (France) and Harvard Law School (US). She is a member of the management board and of the supervisory council of the Swiss Institute of Comparative Law (appointed by the Federal Government since 2007 and 2006 respectively) and of the Société Suisse des Juristes (since September 2003). She is a former co-chair of the arbitration committee of the IBA (2004 - 2006), and former International vice-president of the Chartered Institute of Arbitrators (1996 - 2004). She is the immediate past president of the executive board of Arbitral Women (July 2012). At the end of 2014, she became part of the panel of arbitrators of the Court of Arbitration for Sport (CAS). She has been acting as counsel, co-counsel and arbitrator (also sole arbitrator and chairperson) in over 200 cases covering a broad range of international arbitration cases, in particular in arbitration involving states and international organizations both at private and governmental levels, in cases relating, inter alia, to transfer of technology, construction of turnkey factories and other major projects, procurement contracts, license agreements, distribution agreements, agency, joint venture, and shareholders’ agreements, sale and purchase contracts, telecom, post M&A disputes and the like. Her industry experience includes, banking and financial services, telecommunications, computers (software and hardware), satellites, aviation, avionics, glass and paper production, steel, chemicals and petrochemicals, LNG projects, oil and gas (and other energy sectors), mining, food, pharmaceuticals and biotechnology, shipping and shipbuilding, intellectual property rights, luxury goods, textiles and arts, beverages and real estate.
Manuel Conthe is currently an independent international arbitrator (up to March 2015 he was Of-Counsel at Bird & Bird). He is both a lawyer and economist, and has been appointed to arbitration panels on investment treaty, energy, oil & gas, M&A and financial and corporate disputes under UNCITRAL and ICC rules. He was Chairman of Spain’s Securities & Exchange Commission, Vice President for Finance in the World Bank, Deputy Minister of Economy and Director General of the Treasury and Financial Policy of Spain. He chaired the drafting of Spain´s 2006 Corporate Governance Code (the “Conthe Code”). He writes a prestigious column in Spain’s leading business newspaper, “Expansión,” and is the author of three books on economic paradoxes, game theory and behavioral Law & Economics.
The Honorable L. Yves Fortier, PC, CC, OQ, QC, After graduating from McGill University and Oxford (Rhodes Scholar), Yves Fortier joined Ogilvy Renault in Montréal (now NRF) and practiced law as a trial lawyer until 31 December 2011 when he left NRF to practice as an independent arbitrator (Cabinet Yves Fortier). He has argued cases before all courts in Canada, before the ICJ in The Hague and before arbitral tribunals. In 1976, he took silk (QC) and in 1982 - 1983 he was President of the Canadian Bar Association. From 1988 to 1992 he served as Canada’s Ambassador and Permanent Representative to the UN in New York. In 1989, he was President of the Security Council. Since 1992, Mr. Fortier has practiced law almost exclusively as an arbitrator. From 1998 to 2001, he was President of the LCIA. He has been Chairman of the Sanctions Board of the World Bank since 2012. In 2013, Mr. Fortier was sworn in as a member of the Privy Council of Canada.
Originally From World Arbitration and Mediation Review (WAMR)
The Arbitrators’ Perspective: Judging and Justification in the Face of Subconscious Influences and Cultural Differences
Professor Susan D. Franck
Introduction & Moderator
Panelists: Professor John R. Crook
L. Yves Fortier
Leading arbitrators from around the world engage in an informal roundtable discussion of the impact that subconscious influences and cultural differences have on arbitral decision-making. The discussion contextualizes the themes from the Workshop by examining them in light of dynamics between counsel and the tribunal, and in intra-tribunal deliberations. Arbitrators identify key concerns in arbitral advocacy and share insights regarding the impact of subconscious influences.
Susan Franck: We have been talking about how subconscious influences and cognitive illusions can influence arbitrators. Now is the time for the arbitrators to speak. We have heard how arbitrators perceive things, but now it is truly our opportunity to think more broadly. From an academic perspective, I think it is particularly useful to have this opportunity to put international arbitrators in a larger context. Arbitrators are human beings, and so are other decision-makers, whether they are counsel, insurers, judges, mediators, or other third-party neutrals involved in dispute settlement.
Having an opportunity to focus on the arbitral mind is really a unique opportunity, and we are blessed to have an exceptional panel here today. I wanted to provide a bit of perspective, because this truly is a unique panel with a breadth of experience. We have four different countries and legal traditions represented. We have people who have worked in a variety of international arbitrations: public, private, commercial, and treaty law.
To my immediate right is John Crook. He has worked primarily in investment treaty arbitration disputes, but he also has experience as an arbitrator in public international law claims at the Eritrea-Ethiopia Claims Commission. Of course, prior to that, he served as the US advocate to the Iran-US Claims Tribunal. Then we have Dominique Brown-Berset. She is a specialist in international disputes and public law. I was impressed to read that she had done over two hundred cases in a variety of contract, commercial, and public law disputes all over the world in a variety of sectors. Immediately to her right is Yves Fortier, who I am sure we all know. His biography states that, since 1992, he has almost exclusively served as an arbitrator. He has experience in both commercial and treaty arbitrations. He has acted as an advocate for all sorts of courts and tribunals. Manuel Conthe comes to us from Spain, where he has expertise in energy, financial securities, and arbitration. He has written in this specific area, so he has quite a wealth of information that he can bring from his experience as an arbitrator.