Originally from Asian Leading Arbitrators' Guide to International Arbitration

This article aims to provide some information and (hopefully) some food for thought as to the means by which members of a multipartite arbitral tribunal reach their verdicts: what might be called “the deliberative process”. This is not a legal treatise, and there is in any event if not a dearth then far from a plethora of authority on the issue, so it inevitably follows that the content of this article will veer between the axiomatic and the anecdotal.

It is sometimes thought that the members of an arbitral tribunal only start their deliberations when long shadows are cast at the end of the last day and counsel pack their bags and wearily waft away from the dubious joys of legal battle.

This is a misconception. The arbitrators’ discussions on the final submissions and the crystallisation of their appreciation of the dispute and their views on it are the culmination of a series of deliberations which could commence very soon after the arbitration has started.

There is no universal approach to a tribunal’s deliberations. The manner in which any given tribunal will approach its task is driven by factors which include the personality, competence, experience and commitment of the arbitrators and the legal and cultural systems that they come from. In most cases the process is driven by the personality and experience of the chairman, although there are anecdotal instances of arbitrators accustomed to acting as chairmen whose dominant personalities will not allow them to accept a less pro-active role when they do not sit in that capacity.

Most tribunals will see the deliberative process kicking off in the early part of the proceedings. This will be particularly so when the members of the tribunal come from different legal systems and cultural bases resulting in a lack of an early community of thought in the tribunal.