Originally from: Stockholm International Arbitration Review

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DELIBERATIONS OF THE ARBITRAL TRIBUNAL - ANALYSIS OF REASONED AWARDS FROM A SWEDISH PERSPECTIVE

Finn Madsen and Peter Eriksson

1. INTRODUCTION

1.1. General remarks

In 1989, in an article in the Journal of International Arbitration, Robert Coulson - at the time President of the American Arbitration Association - posed the question whether we know how arbitration panels decide. In the article, Coulson presented the results of a study conducted by the American Arbitration Association in which a number of randomly chosen arbitrators responded to questions relating to decision-making in domestic commercial arbitration practised in the United States. According to this study, informal consensus appeared to be the normal method used by arbitrators in reaching a decision and Coulson pointed out that the respondents stated that it was often not necessary to take a vote.

In reporting these findings, Coulson touched upon an issue on which we intend to elaborate on more closely in this paper. There appears to be a prevailing view among legal practitioners and academics that an arbitration panel in an international commercial arbitration should decide the award following deliberations among the arbitrators. There also seems to be a view that no rules exist as to how these deliberations are to be structured or carried out in practice. An example will serve to illustrate the crucial nature of the manner in which the decision making process is carried out:

In an arbitral proceeding, the claimant has claimed damages and invoked certain circumstances in support thereof. The claim brings to the fore two separate issues of fact, each of which bears directly on the outcome of the claim and which we denote as A and B respectively.