The Arbitrator and the Law: Does He/She Know It? Apply It? How? And a Few More Questions - WAMR 2013 Vol. 7, No. 1

Author(s):

Gabrielle Kaufmann-Kohler

Page Count:

12 pages

Media Description:

1 PDF Download

Published:

June, 2013

Jurisdictions:

International

Practice Areas:

Authority of the Arbitral Tribunal,

Right to Determine Applicable Law,

Responsibility of Arbitrators,

Practice & Procedure,

Advocacy

Author Detail:

GABRIELLE KAUFMANN-KOHLER, is professor at Geneva University Law School since 1997, where she is the Director of the Private International Law Department. She is also the Director of the Geneva LLM in International Dispute Settlement (MIDS), a joint program of the Graduate Institute of International and Development Studies and Geneva Law Faculty (launched in 2008). Gabrielle is also a Partner at Lévy Kaufmann-Kohler in Geneva. She was formerly an assistant professor of private international law at the University of Geneva Law School, (1993-1997); a partner of Schellenberg Wittmer (1996-2007), and partner (1985-1995) and associate (1981-1985) at Baker & McKenzie, Geneva and New York. After studies at the University of Geneva (law degree 1974) and a doctorate from the University of Basle (summa cum laude, 1979), she was admitted to both the Geneva Bar (1976) and the New York State Bar (1982). Gabrielle teaches classes on international arbitration and mediation. Her current research project is on "Conflicts of norms in international arbitration." Past projects include: Fundamental and legal theoretical aspects of international arbitration;Arbitration & . . . economics, philosophy, sociology, and Transnational arbitration in China and multidisciplinary research (IT-law) on online dispute resolution. She practices in international commercial, investment, and sports arbitration and has handled over 180 international arbitrations, mainly as arbitrator. She appears on numerous institutional arbitration panels (including ICC, ICSID, and AAA) and conducts arbitrations under the rules of all major institutions. She chaired the ad hoc Division at the Olympic Games from 1996 until 2000. She is regularly ranked among the top ten arbitrators worldwide. Gabrielle is also Honorary President of the Swiss Arbitration Association which she chaired from 2001 to 2005; a member of ICCA, LCIA, AAA Board, HKIAC Advisory Board; President of FIAA (Foundation for International Arbitration Advocacy); and former member of ICC Court. She is fluent in English, French, German, Spanish, and has reading knowledge of Italian. Gabrielle may be contacted at gabrielle.kaufmann-kohler@lk-k.com.

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Description:

Originally from World Arbitration And Mediation Review (WAMR)

I. PRELIMINARY COMMENTS

Reflecting back on the cases in which I have been involved as an arbitrator, and certainly forgetting some of them, I realized that I have resolved disputes under German, French, English, Polish, Hungarian, Portuguese, Greek, Turkish, Lebanese, Egyptian, Tunisian, Moroccan, Sudanese, Liberian, Korean, Thai, Argentinean, Colombian, Venezuelan, Illinois, New York, and Swiss law. Do I know these laws? Except for New York law, which I learned many years ago and would not pretend to know now, and Swiss law, which I practice, although not that often as you see, the answer is clearly no. So how did I apply a law unknown to me? By ignoring it? By focusing on the facts and the equities? How did I become educated in the law? How did counsel teach me?

These are the questions that I would like to address with you now. I would like to do it in four steps:

• first, I will define the topic and put it into the proper perspective;

• secondly, I will draw a parallel with the position before national courts, because arbitration practitioners often approach this issue by reference to the practice in their courts;

• thirdly, I will review the rules and the practice in international arbitration; and,

• fourthly and lastly, I will consider case management (i.e. the arbitrator's perspective) and advocacy (i.e. counsel's perspetive).