The Tribunal's Deliberations - Chapter 22
L. Yves Fortier is Chair and Senior Partner of Ogilvy Renault in Montreal. He is former President of the London Court of International Arbitration and former President of the Canadian Bar Association (1982-83). From 1988 to 1992, he was Canada’s Ambassador and Permanent representative to the United Nations in New York. Since 1992, he has acted as arbitrator and mediator in many major international commercial, investment and sports disputes in different part of the world in ad hoc arbitrations and arbitrations under the hospices of the ICC, LCIA, AAA, ICSID, CAS and other arbitral institutions. He has served as Chair of two panels of the U.N. Compensation Commission in Geneva. He is a former member of the Claims Resolution Tribunal for Dormant Bank Accounts in Zurich. He is currently Judge ad hoc of the International Court of Justice in the Hague and also a member of the International Council for Commercial Arbitration (ICCA).
It is often said that the single most important element of a successful arbitration, and the most significant decision which a party to arbitral proceedings is called upon to make, is the constitution of the tribunal. I subscribe absolutely to this view. The selection of experienced arbitrators is by far the single best means of ensuring that the proceedings will be conducted in a manner both fair and efficient. The importance of that selection becomes all the more manifest once the proceedings are closed, the hearing is over and the ultimate job of the tribunal commences.
I refer, of course, to the tribunal’s deliberations, a process that unfolds outside of the parties’ presence and beyond the gaze of counsel. It is a process in which, in my experience, the tribunal truly coalesces; where (typically) three arbitrators are called upon to act in unison, at a level of intensity that far exceeds that which prevails during the pre-hearing and evidentiary phases of the arbitration. It is during their deliberations that, at the end of the day, the arbitrators must earn their keep, and where, more than at any other time during the proceedings, the chemistry which prevails – or not– among the members of the tribunal becomes as important as their experience and expertise.
Very early in my career as an arbitrator, I learned that to ensure constructive and productive deliberations, the members of the tribunal should do their utmost, at the earliest possible opportunity, to establish a bond between themselves. The universe of international arbitrators is still relatively small. It is thus possible that members of the tribunal will have participated together in an earlier symposium or conference or may even have appeared together, as counsel or arbitrator, in another case. Whether or not they know one another, however, it is vital to the successful outcome of the arbitration that the chairman convene an early meeting of the three arbitrators, in a relaxed setting, at which it is understood that the order of the day is getting to know one another, and not getting down to business. A dinner on the eve of the first meeting of the tribunal with the parties often provides an ideal opportunity for such a “rencontre.”