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Arbitrators are Individualists

posted 5 years ago

It’s
a long and winding road that leads to the career of an arbitrator. It usually
passes down the avenue of barrister, solicitor, judge, scholar, businessman,
diplomat, politician or expert. Occasionally, it is little more than a sideline
at first. Let us assume you are appointed as an arbitrator for the first time
in your life. You have to schedule the hearings in between other business
commitments, sometimes at the cost of your leisure or even vacation time. After
several nominations, the function of an arbitrator takes on the dimensions of
an important professional occupation. Sometimes it supplants and supersedes all
other occupations. If you become drawn to arbitration as a scholar, for
instance, one day you prefer to act as arbitrator than teach your students or
write another book. As a barrister, you may prefer to arbitrate a dispute than
represent clients. As partner of a large law firm you tend to wonder sometimes
if you should quit, since there are so many appointments you have to turn down
due to a conflict of interest. It happens that partners of the largest law
firms, very much in demand as arbitrators, choose to retire from partnership to
devote themselves entirely to the career of an arbitrator. As a result, the community
of full-time arbitrators is growing. 

Arbitrators
are often great individualists, authorities or sometimes even stars. Such
individuals, to use a musical term, make great soloists.
 However, it does not suffice to choose three
competent, titled and wise soloists to make a band. An arbitral tribunal
depends on the team spirit and the social abilities of its members.
  Three outstanding soloists do not always form
a good trio. To resort to sporting analogies, great arbitrators are somewhat akin
to great tennis players. However, they are required to participate in a team
event. Accordingly, an arbitral tribunal can best be compared to the crew of a coxed
triple scull, with one of the rowers acting as coxswain.

The
ICC has witnessed cases in which the entire arbitral tribunal had to be replaced
because three competent, titled and eminent arbitrators quarreled so much that
they could not conduct normal correspondence, let alone bring the proceedings
to a close and render the award. Arbitral tribunals sometimes represent an
explosive mixture of various cultures, temperaments, customs, characters or
patterns of behavior.

As
the French anthropologist Alain Peyrefitte, who also served as the Minister of
Justice (interesting professional background, by the way), once said: “Human
society is founded on trust.” It is a very good thing if the parties have trust
in the arbitrators. It is equally important for the arbitrators to trust one
another.

Sometimes
members of the arbitral tribunal live on different continents. They open their
emails, receive snail mail, listen to the radio and are available on the phone
at different times. Occasionally, the same letter or news reaches them at
different times. An arbitrator in Australia knows what his colleague in Europe
does not, while the American co-arbitrator is still fast asleep. An arbitrator
should not correspond with only one co-arbitrator, without copying the other
one on the message. If he does, the other arbitrator may feel, even in a
trivial matter, that the two co-arbitrators have reached a prior understanding
and that they understand each other better, perhaps even with regard to the
merits of the dispute. It is best to avoid any misunderstanding by consulting
only one arbitrator. However, if it happens, the two arbitrators should
immediately share all of their thoughts with the other one. A situation in
which two co-arbitrators consult each other to the exclusion of the third is
unacceptable. Before contacting the other co-arbitrators one should keep in mind
one’s public holidays, planned leaves and other important commitments.

Team spirit does not so much means friendship but a
joint task, which, if implemented, should bring satisfaction to all members of
the triple scull, which the arbitral tribunal is. Arbitration comes to an end
one day, but friendship between arbitrators may remain forever.
  

Author

posted 6 days ago

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