The Quality of Arbitral Decision: Making and Justification - WAMR 2013 Vol. 7, No. 1
R. DOAK BISHOP, who currently serves as Chair of the ITA, is a partner in King & Spalding’s Houston Office. He co-chairs the Firm’s International Arbitration Practice Group. B.A. degree with high honors and departmental distinction from Southern Methodist University (1973), and J.D. degree with honors from the University of Texas Law School (1976), Research Editor of the Texas Law Review. Over 35 years of legal practice, with a focus on international arbitration and foreign investment disputes. Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. Board of Directors of the American Arbitration Association; Board of Trustees of the Center for American and International Law; Vice-Chair of the Institute of Transnational Arbitration; Member, U.S. delegation to the NAFTA Advisory Committee on Private Commercial Disputes; Advisor to the American Law Institute’s Restatement of the Law (3rd) of International Commercial Arbitration; Adjunct Professor, SMU 2013] Law School (1999) (International Commercial Arbitration) and University of Houston Law School (2002) (Foreign Investment Disputes); Co-Chair, International Litigation Committee of ABA’s Litigation Section (1998-2000); Chair, Litigation Section of the State Bar of Texas (1998-1999). Specialties in international arbitration of international energy disputes, investment and infrastructure disputes, construction disputes, and environment issues. Registered more than 30 ICSID arbitrations and represented investors in about 40 investment arbitrations against foreign governments. Arbitrator in about 70 arbitrations, including NAFTA and BIT arbitrations under the UNCITRAL Rules. Editor, The Art of Advocacy in International Arbitration (2nd ed. Juris Publishing 2010); co-author with Professor James Crawford and Professor Michael Reisman, Foreign Investment Disputes: Cases, Materials and Commentaries (Kluwers, 2005); Editor, Enforcement of Arbitral Awards Against Sovereigns (Juris 2009). Doak may be contacted at email@example.com.
Originally from World Arbitration And Mediation Review (WAMR)
The theme of this year’s workshop, borrowing from a theatrical expression, is the final curtain in the arbitration, that is, the closing stages – the deliberations, the award, and the enforcement of that award. I chose my topic with the idea that it would be consistent with the theme of this year’s program, to complement it, but at the same time not to duplicate it. So, the topic I have chosen is the quality of arbitral decision-making and justification. It is not a topic that is discussed at every international arbitration forum, and I am hoping it will make a modest contribution to our discipline.
Let me begin with what many might consider an unusual statement, at least for international arbitration today. This is advice that Lord Mansfield is supposed to have given to the judges of the King’s Court Bench about 200 years ago, and here is what he said: “Consider what justice requires and decide accordingly, but never give reasons, for your judgment will probably be right, but your reasons will certainly be wrong.” Please note the distinction he is making between the decision and the justification of that decision because that is part of the theme of my topic, and I will return to that point a little later.
I want to be clear at the beginning about what I am not addressing today. Gary Born, in one of his books, said that the requirement for a reasoned award is not the same as a requirement for a well-reasoned award. What I am not discussing today are the minimal requirements for what constitutes a reasoned award. Other people have addressed that issue many times, and I won’t repeat those discussions. I am much more intrigued by that second concept: what constitutes a well reasoned award. I would suggest that it is not a matter of formalisms; it is not a matter simply of whether the award is drafted in the form of logical syllogisms, or for that matter in any particular form.