All the time people ask me if it makes a difference whether I am sitting with co-arbitrators from the civil law or the common law tradition. I tell them there’s not much difference. It all depends on the people. Some people have vast international experience, and by that I mean truly international experience beyond the English-speaking, cricket-playing world. They have arbitrated all over the world with co-arbitrators from all over the world, and lawyers from all over the world have appeared before them. They take a comparative law approach. Actually, I would say, it is not even primarily a legal approach; it’s a practical approach.
Determining the applicable law and its content is by no means the first task in arbitration. It is one of the last, once the facts of the case have been established.
II. The Need to Be Flexible
An arbitration is a project and you have to work well with people to make the process work. What shapes an arbitration is the interaction of the participants. Surely, the arbitrators matter, but they tend to be the most flexible people in the room. That is why they were chosen. The lawyers for the parties tend to be slightly less flexible. They come in all types. I have seen some quite flexible lawyers who move effortlessly through international cases. They learned, probably through their local practice, that if you want to win cases, you must understand the triers-of-fact and work well with the other people involved in the case. On the other hand, I have also seen many inflexible lawyers. Some are so specialized in big-ticket litigation that it is hard for them to understand that arbitration is not litigation with another name, or even “litigation light.”