Originally from Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42

Good morning ladies and gentlemen, a warm welcome also from my side to this conference and many thanks to Michael for your very kind introduction.

Before turning to the substance of my short presentation please note that at tab 5 of the conference binder you will find a more detailed written report on my speech.

I was instructed, I have to say, by Michael to set the floor by outlining the rights and obligations of arbitrators in the deliberations. But let me first briefly reflect why we are talking about the deliberations as a black box. What is a black box? If you do not have an idea or do not know, you obviously “Google”. That is what I did and Wikipedia has told me that a black box is a device whose inner workings are unknown, more precisely a device that can be seen only from the outside.

What does that mean? You see the input, the output and the transfer characteristics but not the internal workings. In terms of arbitration, we could say, and this obviously from the parties' perspective, you know the arguments and motions put forward in the proceedings, that is the input; you can see the result in the form of the dispositive section of the award, that is the output; and you can try to understand the reasons given for the decision in the award, that will be the transfer element. All the rest that may have happened in the deliberations remains undisclosed and undiscovered: for example, is there a relatively mild decision on the quantum of damages as a bargaining chip for the unanimous affirmation of liability?

What causes this black box? To me I think the answer is simple: because the parties are not allowed to attend the deliberations let alone to participate in them. The confidentiality of the deliberations is seen as an inherent feature of arbitration.