CONTENTS

Preface to the Second Edition 
About the Authors      

Introduction: Overview of This Book and Why It Was Written   

PART ONE The Arbitrators       

CHAPTER ONE Behavior Expected of Arbitrators 
    
I.   Do Arbitrators Also Have Duties to Their Fellow Arbitrators?
II.  Arbitrators’ Duties towards Their Co-arbitrators in General 
III. Co-arbitrators Having an Undisclosed Conflict of Interest       

A.  With One of the Parties or Their Counsel
B.  Regarding Relations among Arbitrators

IV.   The Duty to Avoid Improper Ex Parte Communications              

A.  Ex parte Communications in General   
B.   Ex parte Communications by a Co-arbitrator    

V.   The Duty of Confidentiality
VI.  The Duty of Diligence  

CHAPTER TWO Reacting to the Co-arbitrator’s Misconduct  

I.    The Remedies Available in Case of Co-arbitrator Misconduct
II.   Non-Traumatic Remedies
III.  Remedies Contemplated by Various Codes of Ethics
IV.  Possible Removal of the Offending Arbitrator  
V.   Exclusion of the Offending Arbitrator from the Decision-making Process: The Truncated Tribunal           
VI.  Remedies Available under National Legislations          
VII. Conclusions    

CHAPTER THREE Collegiality Dimensions      

I.   Working Collegially throughout the Arbitration Proceedings

A.   Are Arbitrators Created Equal?
B.   Deliberation as a Process that Extends throughout the Arbitration Proceedings            

1.   During the process of the President’s appointment
2.   Prior to and during the Case Management Conference             
3.   During the phase of the parties’ submission of their briefings 
4.   Before and during the course of the Evidentiary Hearing          
5.   After the Evidentiary Hearing and up to the issue of the Final Award  

C.   Conclusions on Cooperation among Arbitrators           

IV.  Efficient Proceedings Management: The Special Role of the President          

A.  Early Disposition of Issues; Bifurcation             
B.   Hearing Organization and Overconcern for Due Process          
C.  Timely Production of the Draft Award  
D.   Addressing Technical Issues    

V.   Settlement Facilitation at Any Time     

A.   General Remarks         
B.   Indirect Settlement Facilitation             
C.   Direct Settlement Facilitation 

CHAPTER FOUR Behavior that Arbitrators Are Expected to Avoid         

I.   Noblesse Oblige           
II.  Examples of Inappropriate Behavior    

A.  Conducting Internal Debates during the Hearings       
B.  Maintaining Arrogant or Inappropriate Attitudes towards Counsel            
C.  Believing Themselves Better than Counsel      
D.  Showing Lack of Respect for the Procedure     
E.   Failing to Check for Conflicts of Interest in a Timely Manner   
F.   Indulging in the “Prima Donna” Syndrome as Opposed to Acting with a Degree of Humility         

CHAPTER FIVE The Dynamics of Deliberation             

I.    Deliberation Meetings and Negotiating Techniques     
II.   The Attitude Expected of the President              

A.   Prior to the Deliberation Meeting          
B.   During the Deliberation Meeting           
C.   Deliberation Meeting Should Be Final 

III.  The Attitude Expected of the Co-arbitrators     
IV.  “Split-the-Baby” Decisions: The “Courage to Decide” 
V.    Majority Decisions and Dissenting Opinions   
VI.  The Loneliness of the Sole Arbitrator   
VII.  Conclusions    

PART TWO Parties’ Counsel   

CHAPTER SIX Counsel Behavior that Risks an Adverse Decision from the Arbitral Tribunal     

I.   The “All-or-Nothing” Approach

A.   “All-or-Nothing” Approach to the Entitlement to Multiple Claims             
B.   “All-or-Nothing” Approach in the Defense against Claims       
C.   “All-or-Nothing” Approach with respect to the Quantum of the Claims

II.   Disloyal or Dishonest Counsel Behavior towards Arbitrators   

A.  Ex parte Communications and Other Impermissible Attitudes towards the Arbitrators              
B.   Providing False Information to the Arbitrators

III.  Incompetent or Unprofessional Behavior by Counsel 

A.   Counsel Ignorance of Substantive or Procedural Legal Aspects             
B.   Inability to Properly Conduct Cross-examinations of Witnesses              
C.   Unprofessional Behavior by Counsel at the Hearings  
D.   Lack of Preparedness by Counsel in Written or Oral Advocacy
E.   Filing of Unnecessarily Long Submissions
F.    Excessive Production of Documents or of Witness Statements              

CHAPTER SEVEN Counsel Behavior Leading to Inefficiencies  

I. Inappropriate or Inefficient Handling by Counsel of the Document Production and Redfern Schedule Processes

A.   Assessing the Need for Document Production in Arbitration   
B.   Abuses or Misuses by Counsel of the Document Production and Redfern Schedule Processes   

II.   Arbitrators’ Power to Counter the Inappropriate Behavior of Counsel            

A.   Not Contemplating Document Production or a Redfern Schedule Process at All            
B.   Being Aware of the Pitfalls of the Provisions of the IBA Rules on Document Production 
C.   Reigning in Counsel Abuse or Misuse of the Document Production and Redfern Schedule Processes 

III.   Obstructive or Dilatory Tactics by Counsel      

A.  Frivolous Challenges to Arbitrators’ Appointments      
B.  Frivolous Objections or Requests of Procedure            
C.  Counsel Agreement on Lengthy Terms for Their Submissions

IV.   Other Inappropriate Behavior by Counsel        

A.  Accepting Inappropriate Appointments as a Replacement or New Counsel   
B.  Unnecessary Aggressive Attitudes of Counsel
C.  Unsolicited Submissions and “Letter Writing Campaigns”      
D.  Submitting Inflated Claim Damages   
E.  Inability or Unwillingness to Seize Settlement Opportunities   

CHAPTER EIGHT Curing Counsel’s Inappropriate Behavior     

I.   The Role of Deontological Rules for Counsel in International Arbitration        
II.   Remedies Available to Arbitrators        
III.   Conclusions on Parties’ Counsel         

PART THREE The Other Players in Arbitration 

CHAPTER NINE The Parties     

I.   The “Courage Not to Arbitrate”
II.  The Need for the Parties’ Continued Involvement in the Arbitration Proceedings            
III.  Obstructive or Dilatory Tactics by the Parties  
IV.  The Parties’ Attitude towards Settlement         
V.   Conclusions for the Parties to Arbitration         

CHAPTER TEN Parties’ In-House Counsel      

I.   The Players Most Conspicuous by Their Absence from the Arbitration Proceedings            
II.  Role that In-house Counsel Should Play in Arbitration

A.   Choosing Arbitration as a Dispute Settlement Mechanism and Drafting the Arbitration Clause
B.   Managing and Documenting Pre-Arbitration Attempts at Settlement      
C.   Contributing to the Decision to Initiate an Arbitration  
D.  Selecting Outside Counsel and Controlling Counsel during the Proceedings    
E.   Selecting the Arbitrators in Collaboration with Outside Counsel              
F.    Determining the Arbitration Strategy: Written Submissions, Hearings and the Role of Corporate Management        
G.   Organizing Internal Resources: Claims, Documents, Witnesses and Experts     
H.   Proactively Participating in Attempts at Settlement     

III.  Role that In-house Counsel Should Play in Arbitration

CHAPTER ELEVEN The Arbitral Institutions    

I.   Administered Arbitration versus Ad Hoc Arbitration     
II.  The Role of Arbitral Institutions in General       
III.  Controlling the Time and Cost of Arbitration    

A.   Decisions to Be Taken by the Arbitral Institutions         
B.   Constitution of the Arbitral Tribunal     
C.   Conduct of the Arbitration Proceedings            
D.   Scrutiny of the Award  
E.    Time Limit for Rendering the Award     
F.    Determinations on Arbitration Costs and Fees              

IV.   Dealing with Dissenting Opinions         
V.    Possible Publication of the Awards      
VI.   Panels of Arbitrators Maintained by Arbitral Institutions           
VII.  Conclusions for Arbitral Institutions    

GENERAL CONCLUSIONS The Magic of Arbitrating      

INDEX 

 

 

Ugo Draetta is Past Professor of International Law at the Catholic University of Milan, Italy. He received his PhD in International Law (1968) and graduated from the Academy of American and International Law, at the International and Comparative Law Center, University of Texas at Dallas (1976). In 2005 he taught courses at the Hague Academy of International Law. 

During his professional experience, he has held the position of Vice-President and Senior Counsel-International of General Electric Co., USA (1987-1999). He is a member of the Board of Directors of major Italian companies.

In 2000, he started his independent arbitration practice. He has been involved in about 80 arbitration proceedings (ICC, UNCITRAL, Milan, Vienna, Dubai, and Madrid international arbitration chambers, ad hoc arbitrations) as President, sole arbitrator or co-arbitrator. His areas of expertise include international law; lex mercatoria; EU law; antitrust law; conflicts of laws and procedure; construction contracts; agreements for the sale of goods; merger and acquisition agreements; shareholders’ and joint venture agreements; R&D agreements; distribution agreements.

Matteo M. Winkler is an Associate Professor of Business and Human Rights at HEC Paris, a top-ranked global school of management. Since he graduated in law with Professor Draetta at the Catholic University of Milan with a thesis on the international regime of e-commerce (2001), he has published almost a hundred articles in peer and student-reviewed journals in Italian, English, and French on various subjects, mostly relating to public and private international law, especially in the field of international business transactions.

He has worked as a litigator in different law firms in Milan, Italy, specializing in civil and commercial litigation and arbitration. While pursuing his career as a lawyer, he obtained a PhD in international economic law from Bocconi University (2007) and a Master of Laws (LLM) from Yale Law School (2007). All the papers he submitted for his courses at Yale have been published in top American law journals such as the University of Pennsylvania Journal of International Economic Law, the Berkeley Journal of International Law, the Loyola L.A. International and Comparative Law Review, and the Journal of World Trade. His doctoral thesis, dedicated to the international regulation of multinational enterprises, was published by Giuffrè (now Lefebvre Giuffrè) in 2008.
In parallel with teaching international law and EU law at Bocconi School of Law and training professionals on various aspects of international business transactions, Mr. Winkler served as arbitrator and counsel in several proceedings until he moved to Paris to become a full-time academic at HEC Paris first as an Assistant Professor (2014-2020) and subsequently as an Associate Professor (2020).

Praise for Ugo Draetta's Trilogy on International Arbitration:

Monads or Triads: Conflict and Cooperation among Arbitrators

“Ugo Draetta’s book fills a gap in the international arbitration literature. The text reveals the author’s huge experience and know-how, but will make useful reading for experienced and unsophisticated arbitrators alike.” 
– Andrea Carlevaris, Secretary General of the ICC International Court of Arbitration
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“Highly readable and thought-provoking. Should be on the reading list for every arbitrator training course.” 
– Rusty Park, Professor of Law, Boston University – President, London Court of International Arbitration 
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“Dr Draetta’s comments and conclusions deserve to be read by all who want to understand modern international arbitration. His astute analysis clarifies many of today’s critical issues in international arbitration.” 
 
– Prof. Dr Kaj Hober, Professor of international investment and trade law, Uppsala University; Chairman of the Board, SCC Institute, Stockholm Chamber of Commerce
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Counsel as Client’s First Enemy in Arbitration:

“Ugo Draetta has an immense advantage over all other actors in arbitration: he has played every role … [He] has become a master in presenting these challenging relations with clarity, psychological insight and finesse.”

– Professor Pierre Tercier, Arbitrator, former Chairman of the International Court of Arbitration of the ICC
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“With his dual experience of arbitrator and in-house lawyer, Ugo Draetta provides to counsel in arbitration a guide of all the errors to avoid. Instead of a desiccated code of conduct, the reader enjoys a colorful and lively series of anecdotes with a tremendous educative power […}. Clients should require evidence that counsel have read this book before hiring them.”

– Yves Derains, Derains & Gharavi, Paris, Former Secretary General of the ICC Court of Arbitration, Chairman of the ICC Institute of World Business Law
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“The new book by Ugo Draetta exudes the wisdom he has accumulated in his experience as an arbitrator. His lesson of moderation, prudence and honesty should be reflected upon by all counsel concerned with efficiency.”

– Pierre Mayer, Partner, Dechert, Paris, Emeritus Professor of the University of Paris 1, President of the Arbitration Academy
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“[A] book whose irony and humor seize the reader from the first page and whose teachings will hardly release him before the very last phrase.” 

– Laurent Lévy, Partner and Arbitrator, Levy Kaufmann-Kohler, Geneva; Vice President, ICC Court of Arbitration
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“[His] book should be ‘must reading’ for all corporate lawyers who draft arbitration clauses or who are responsible for handling arbitrations in which their companies become involved.”

– Philip Allen Lacovara, CIArb
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Behind the Scenes in International Arbitration

"Until I read Behind the Scenes in International Arbitration, I never had imagined that a book on arbitration could be a page-turner... Ugo Draetta is generously sharing his experiences in this field by offering us a useful, wise book which can be read with the pleasure normally reserved to good novels."

-Diego P. Fernández Arroyo, Sciences Po Law School, Paris

"This book examines points of view on arbitration that are not very usual in this type of literature, so I sincerely congratulate the author."

-Bernardo Cremades, International Arbitrator

"A fascinating journey behind the curtains of international arbitration by one of the most renowned arbitrators and experienced practitioners. Ugo Draetta unveils the hidden dynamics of the relationship between arbitrators, advocates and in house counsels. A reading as pleasant as it is instructive"

-Alexis Mourre, founding partner of Mourre, Chessa, Le Lay Arbitration