Co-authored with Michael McIlwrath, General Electric Company, and Ema Vidak-Gojkovic, Baker & McKenzie
GAR Live Stockholm recently shone a spotlight on our article “Puppies or Kittens? How To Better Match Arbitrators to Party Expectations”, published in the Austrian Yearbook on International Arbitration earlier this year.
In our article we proposed that arbitrators complete a questionnaire to help parties select candidates that match their expectations. Our proposition is simple: arbitrators themselves should state their preferences with respect to certain issues relevant to the conduct of proceedings. The arbitrators would not be asked about their views on substantive legal issues.
In appointing an arbitrator a party is seeking to identify an individual with an approach to procedural issues, case management and handling of evidence and settlement, which aligns as closely as possible with the party’s view on how the arbitration should be conducted. Yet, there is a dearth of available information as to how an arbitrator is likely to conduct a case. Obtaining this information can be the single most difficult challenge when identifying candidates for nomination.
What is lacking is easily accessible information about the procedural preferences and soft skills of the people that parties may consider appointing as arbitrators. As a result, parties tend to rely on two proxies for these qualities: the arbitrator’s nationality and the arbitrator’s legal qualification. Both of these, however, may be based on inaccurate assumptions that may disappoint the parties’ expectations. But parties have no choice — in no other field are users expected to hire professionals in such a vacuum of information.
The situation can be remedied if arbitrators make such information available, for example by completing a questionnaire about their approach to case management, to delegation of work to tribunal secretaries, to settlement discussions, to disclosure, and to costs, amongst others.
The proposal was discussed by Kai Hobér, Jean Kalicki, Peter Leaver QC, Michael J Moser and Carita Wallgren-Lindholm at GAR Live Stockholm when they considered how to ascertain arbitrators’ predilections and preferences in order to make effective appointments. Although our proposal was met with some skepticism by the panel of arbitrators, the ensuing discussion was itself a good demonstration of how our proposal could benefit users of arbitration. Peter Leaver QC was quoted as saying: “People are often surprised at how reluctant I am, as an English lawyer, to grant disclosure.” Eliminating such incorrect stereotypes and assumptions is precisely what our proposal is designed to accomplish.
Further, the arbitrators lamented – as do we – the reluctance of parties to appoint arbitrators who are young or relatively unknown. People are reluctant to embark on risky endeavors, even if there is a potential for a significant gain. Parties who are facing a potentially long-lasting and exhausting dispute are understandably even more risk-averse. Consequently, they want to know as much as possible about the conduct of their case. This leads to repeated nominations of “familiar”, well-known arbitration names, even when better choices might be available.
People also show aversion to anything uncertain and unknown. Familiar arbitrators (more known/certain) will hence appear more attractive than potentially better, but less known/certain candidates. In other words, experienced arbitrators, who have already earned a reputation (be it a great or simply an acceptable one) will almost always trump a younger, less known candidate. This is not because of the younger candidate’s age or gender, but because they represent an additional “unknown” and an “uncertain” element to an already risky situation.
For very large cases people will always want experienced “big names”. But even there our “Puppies or Kittens” proposal has value and can help better match arbitrators with party expectations. As for “smaller” disputes of just a few million dollars, there needs to be some proportionality and ability to appoint unfamiliar and more diverse faces. Our proposal will increase how familiar the less experienced arbitrators appear to the parties. This will make it easier for the parties to appoint an arbitrator they have not encountered in the past.
Young arbitrators can make themselves more familiar — by disclosing their procedural preferences from the outset. This would bridge the bias against the unknown, which in the world of international arbitration that was for many years dominated by senior Caucasian males, would mean reducing the bias against appointing women arbitrators, young arbitrators, and arbitrators of color.
We have established a survey to gauge the reaction of the arbitration community to our proposal, which is available here. If you are reading this, it means that like most of us, you are interested in actively developing the future of international arbitration. Please help us shape it by taking a minute to complete the linked survey.
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Obviously, Tribunals will have to conform to the Rules applicable to each case. Of course, most Rules provide the Tribunal with significant discretion in terms of how to manage the procedure. However, in those circumstances where procedural arrangements are agreed by the parties, a Tribunal must be sensible to those wishes. I would not be opposed to the Questionnaire proposal. But, of course, what may be appropriate for certain subject matter may not be for different subject matter. So, no reason for arbitrator candidates not to answer questions on procedural approaches during the pre-appointment process. While agreeing with Peter Leaver’s approach to document production, I do not believe that Tribunals should be shy of themselves requesting documents which they consider potentially relevant but which the parties have not requested/produced.
David, these are fair points, but the ultimate goal of a survey is better predictability and party satisfaction with their choices. An “it depends” or “it’s case-specific” is available as an option, but in some cases it may not be what the party wants to hear.
For example, take the issue of document disclosure, a suggested example for which is Question 7 of the Puppies survey: “do you believe it is appropriate for international tribunals to grant a party’s request for e-discovery?” The possible answers are: 1 (always) 2 (sometimes) 3 (it depends) 4 (rarely) 5 (never)
Now consider some real examples I have recently encountered. One colleague was seeking names of arbitrators for consideration in a rare case of wanting relatively broad document disclosure. Another colleague sought the names of arbitrators who would not tolerate broad (and expensive) discovery requests just to appease the litigation culture of the other side. A 1 or 2 would keep an arbitrator in consideration in the first case, and arbitrators answering a 4 or 5 would be considered in the other. Candidates who responded with a 3 (it depends) would likely be eliminated as injecting too much uncertainty on a key issue.
The result, obviously, is that capable arbitrators will be excluded from consideration in both cases. But that will always happen. The question is whether parties are rejecting them for the wrong reasons, or based on inaccurate information or stereotypes. The difference that Puppies seeks to inject (and there may be many ways to do it) is to give arbitrators a way to express their preferences so parties will appoint them for the right reasons and will, ideally, be more satisfied with what they get.
David, also…I think your point “Tribunals should not be shy of themselves requesting documents which they consider potentially relevant but which the parties have not requested/produced” would be a very good question to include in the survey!
Authors, I am in favour of the idea and even more so after reading your linked article. In the article you mention trip advisor and other web services that provide user ratings as a source of information. Have you thought about the web market for filling arbitrator questionnaires? For example, hopeful arbitrators might contract the work *to an expert* via sites such as upwork. I didn’t think the world of arbitration extended to such places until I saw the drafting of a VIS moot memorial advertised on one.
James, thank for the feedback, and hope all is well with your arbitration practice in Poland.
Good suggestion on the website. We (the co-authors) left this question open. Preferences on procedure could easily be disclosed with an arbitrator’s bio, for example. This is what IMI certified mediators do in their profiles published on the IMI website (IMImediation.org), ie, they explain their “style” of mediation and what parties should expect from them if they are appointed. Some are much better than others. Another might be Arbitrator Intelligence, which eventually will make such information available, I believe. Institutions might provide this with arbitrators on their published rosters. And, of course, it could be an independent website.
The feedback we have received on the proposal has been overwhelmingly positive from parties and counsel. Arbitrators, however, have been ambivalent about committing to certain procedural notions. I find this interesting since, ultimately, “Puppies” is really a suggestion to arbitrators on how to better market their services and gain appointments where parties are more likely to be happy with their work.
Hi Mike! I agree. I personally take it as a marketing suggestion and I think that as an industry we need to be much more open to more ideas like this.