Originally from The American Review of International Arbitration (ARIA) 

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International arbitrators do some things in conducting arbitrations, that tend to go without saying, but that I struggle to accept without question. I speak not of major procedural missteps that run afoul of principles of due process or of procedural “best practices” codified in soft law instruments like the IBA Rules on the Taking of Evidence. Rather, I speak of some of the smaller, uncodified procedural behaviors—procedural habits, I call them —that international arbitrators adopt within the confines, and between the interstices, of those codified due process and soft law “best practice” parameters. I speak of widely followed arbitrator habits such as not revealing their preliminary views of the merits of the case prior to award, reserving arbitrator questions of witnesses and counsel at hearing until after counsels’ examination of witnesses or argument is completed, and deferring any arbitrator deliberations of the merits until after final hearing. I speak as a former counsel in international arbitrations for three decades, and as an international arbitrator for the past two decades.

Reasonable international arbitrators can reasonably disagree about these procedural habits, none of which ordinarily implicate concerns of due process. There are no right or wrong habits. Typically, in any individual case, it is the chair of a three-member arbitral tribunal who prescribes how he  prefers to conduct the proceedings, and the party-appointed arbitrators defer to the chair.  Thus, much depends on the particular chair’s procedural habits and preferences. But in my experience there is widespread adherence to the procedural habits that I question here. My principal objective in voicing my reservations about these procedural habits is not to condemn them as wrong, but rather to bring them to light so as to invite more serious scrutiny and debate.

I address below, first, questionable arbitrator habits common to all arbitrators and arbitrations, and second, questionable arbitrator habits specific to chairs and party-appointed arbitrators in three-member arbitral tribunals.