Originally from The Dark Side of Arbitration

This book is meant to revisit, update, integrate and harmonize the three books on international arbitration that I published with Juris Publishing over the last few years.  However, it is not a mere juxtaposition of the three previous books. That would hardly have been necessary. What I will attempt to do here is to capture and emphasize the central theme, or as the French say, the fil rouge that ties all the above books together and thereby reduce the books to unity.

I call this fil rouge the “dark side of arbitration.” A few words of explanation may be necessary to clarify this concept.

n most cases, the arbitration process unfolds smoothly and without problems. When this occurs, the process is rewarding for all the players involved.
And yet, pathological cases exist where problems arise from the misconduct of one or more of the players who act inappropriately, in violation of the applicable binding rules. These forms of inappropriateness are often not “in the dark” at all. They become known to the players involved and trigger the relevant remedial actions contemplated by such applicable rules. Examples of these triggers would be a party’s challenge of the independence or impartiality of the arbitrator(s), or request to have the award set aside on the same grounds. I will not deal with these situations in this book, as they are abundantly discussed in the available legal literature. 

By the phrase “dark side of arbitration” I refer to situations that are less discernible, more subtle or opaque, and, most importantly, where the appropriate remedies are not well-defined or at any rate are not easily identifiable. While these situations are likely to seriously affect the integrity of the arbitral process, the legal literature, statutory or case law are too often silent or reticent on them. In the course of over thirty years of practicing arbitration, first as an in-house counsel and then – and mainly – as arbitrator, I have had the opportunity to observe various behaviors on the part of all the players involved in international arbitration. Some of these behaviors, while not openly violating any binding rule, seemed 
to me inappropriate and open to criticism; some were counterproductive, others even bizarre. This book intends to cast light on these dark areas. Underlying this effort is the hope that once these behaviors are identified the various players in the arbitral process (both the established players and those just making their names in it or who aspire to do so) might be persuaded to avoid them, for the greater effectiveness, reliability and dignity of a process which, in my belief, all the players have an interest in safeguarding.