Procedural Profile

 

Inspired by widespread recent discussion of the desirability of greater accessibility to information concerning potential arbitrators’ procedural preferences, I have set out below a general description of my approach to a number of common issues.  These are obviously not statements of how I would act in any particular matter, but offered as an indication of my general thoughts on the process.  The subjects have been adapted, with modifications, from the seminal article on “Puppies or Kittens”[1]as well as the questionnaire employed by the Global Arbitration Review in support of its Arbitrator Research Tool. I hope that readers will find it useful.

Describe your current practice

Since retiring from Mayer Brown at the end of 2014, I have divided my time between serving as an arbitrator, pursuing public service opportunities and enjoying retirement.  I have limited, and intend to continue to limit, the appointments I take on in order to ensure that I have the time and flexibility to be responsive to the needs of each proceeding in which I am appointed.  As a result, I am able to respond promptly when unanticipated needs arise, prepare thoroughly for conferences and hearings, participate actively in those events and rule expeditiously once they are concluded.

Do you have or tend to work with a back office?

No, I have a freestanding solo practice.

Do you like to use a tribunal secretary?

While I have no objection to the use of secretaries for appropriate purposes in appropriate cases, as a solo practitioner I do not have associates available to serve that function.

How much does your approach vary, case to case? 

I am a great believer in the idea that the flexibility to tailor procedures to cases is one of the important advantages of arbitration.  My approach therefore varies with the size and complexity of the case; the agreements, applicable rules and preferences of the parties; and my judgment as to the process that will resolve the dispute as fairly, expeditiously and inexpensively as possible.  Variations in approach may affect, among other aspects, the overall schedule, the scope and timing of information exchange, the desirability of dispositive motions, the form of submission of evidence and hearing procedures.  However, I emphasize working these matters out at the outset of the proceeding, at the first organizational conference, and strictly adhering to the resulting procedural order. 

What is your approach to identifying potentially dispositive issues early?

I am open to entertaining potentially dispositive motions where a party can demonstrate a likelihood that a motion will resolve or materially narrow the issues to be decided without undue cost or disruption of the proceeding.  In my experience, the party that sees a likelihood of prevailing on such a motion will generally raise the issue itself.  Where appropriate, I may ask the parties at the organizational conference whether there are any such issues.  If no party raises such an issue, I would only do so myself if it appeared so obvious and so essential to the case that failure to raise it would risk unnecessarily prolonging the proceeding.

What is your approach to indicating the strengths or weaknesses of cases early?

In my view it is inappropriate for an arbitrator to prejudge a case or to give any indication that might be construed as prejudgment of a case before all of the evidence is in.  In appropriate cases, I may ask questions at an early stage to be sure I understand what actually is disputed and how obvious issues will be addressed, without, however, adopting or suggesting a view as to the implications of the questions or the answers.

How often do you use the IBA rules of evidence? Will you do it against one side’s wishes?

The IBA Rules by their terms were drafted “as a resource to parties and arbitrators to provide an efficient, economical and fair process for the taking of evidence in international arbitration.”  In my experience, in international proceedings parties most often agree that, without being binding, these “Rules” serve as appropriate guidance for the consideration of arbitrators in the exercise of their discretion in the exchange and presentation of evidence.  I believe that the Rules in the abstract constitute a fair and reasonable compromise of practices from different juridical traditions as well as practical guidelines for the efficient and fair conduct of proceedings, and as such provide a useful reference point regardless of the parties’ agreement.  By using them as guidelines rather than as hard rules, flexibility remains to accommodate the reasoned positions of the parties in the context of the particular dispute consistent with the objective of fair, efficient and inexpensive resolution of that dispute.

Domestic arbitrations are of course different. Many parties and their counsel, despite having opted for arbitration in lieu of litigation in the courts, nevertheless expect to incorporate at least some judicial procedures, such as depositions, into the arbitral process, particularly where direct testimony is not to be submitted in written form in advance of the final hearing.  I believe that arbitrators owe it to the institution of arbitration as well as to the parties to minimize the cost and burden of the proceedings, and I have found that the principles underlying the IBA Rules can be helpful and persuasive even in domestic cases.  However, where parties and counsel insist that incorporation of at least some judicial procedures such as depositions are essential to their ability to present their case, some accommodation may be appropriate.

Do you encourage the use of discovery?

No.  That said, I believe that the fairness of any dispute resolution depends upon both parties having equal access to the evidence that is material to the issues to be decided.  Such evidence often resides in the control of the opposing party or even third parties. So, while I do not “encourage” discovery as such, I recognize the need for appropriately disciplined, focused and managed information exchange confined to the issues in dispute and proportional to the magnitude of the controversy.

As a co-arbitrator – will you ever consult with the party who appointed you on the identity of thechair?

The answer depends on the agreement of the parties and the applicable law and rules.  However, where the parties agree and the rules permit, I believe it is conducive to confidence in the process for each party to have input into the selection of the chair, including through consultation with their party-appointed arbitrators.  As with any ex partecommunications, however, such consultations must be strictly disciplined to avoid inappropriate subjects.

As co-arbitrator – are you in favor of the parties interviewing candidates for chair that you haveidentified before any final appointment?

I am not in favor of any party interviewing a candidate for chair without the participation of the other party.  I have no objection if the parties agree to a joint interview.  Should any party interview a prospective chair without the participation of the other party, that fact and the substance of the matters discussed should be fully and timely disclosed.

Would you describe your procedural style as closer to common or civil law?

The continuing confluence of common and civil law procedures in international arbitration is to my mind very healthy and advanced.  I am very comfortable with that evolution and respect the importance of accommodating the traditions of all parties.  As a matter of background, I was trained in the common law.  I understand that some advocates trained in the civil law tradition prefer the “inquisitorial” mode of procedure to the “adversarial”; while I think that compromise is possible in such matters as information exchange to accommodate differing traditions, I am most comfortable with common law procedure’s ability to produce a fair and just result, including in particular the central role of counsel as advocates and the importance of cross-examination to test witness credibility.  

From a different perspective, it seems to me that the common law tradition properly places the burden on counsel for the parties as adversaries and as the participants with the most direct access to the relevant evidence to prove prove their case or defense.  The allocation to the parties and counsel of responsibility for investigating, evaluating and presenting their positions properly capitalizes as well on their respective incentives to make the best case they can.  That allocation, however, does not absolve the arbitrator of responsibility for managing the process or for ensuring his or her understanding to the facts, authorities and arguments in issue.  As a result, it is my practice to ask questions actively, not to displace counsel, but to discharge what I see as my own responsibility.  

What is your preference on the presentation of evidence?

The presentation of the direct testimony of witnesses by written statement in advance of the hearing saves hearing time and helps the arbitrators to understand the case.  Even more importantly, exchange of written statements is the only means of avoiding trial by ambush in proceedings in which pre-hearing depositions are not permitted.  In my experience as an advocate, written statements proved quite adequate substitutes for depositions.  The prospect of cross-examination serves to deter or expose over-reach by counsel in “assisting” in the drafting of statements, but that assistance can also help to produce clear, unambiguous testimony. Brief oral direct testimony may be useful.  Courteous, focused cross-examination is essential to sorting out factual disputes.

How do you prefer to receive expert testimony?

Because of the frequently complex nature of expert testimony, written reports or witness statements are almost essential.  Ideally, effective reports begin with executive summaries of the expert’s conclusions on what he or she deems the key issues, followed by a more detailed explanation of the data reviewed, methods employed and derivation of the resulting conclusions.  Opportunities for brief introductory oral testimony at the hearing allow for explanation of key points and potentially questions by the arbitrator(s).  Often it is helpful if opposing experts have met in advance of the hearing to produce a joint report on the matters on which they agree and disagree, addressing methodologies, inputs and conclusions. Cross-examination of expert witnesses is particularly important, and an opportunity for the tribunal to question opposing experts individually and/or together in order to ensure that issue is fairly joined is often highly productive.

Do you encourage the use of skeleton arguments?

I believe that hearings are most efficient when the parties have provided the arbitrators with succinct outlines of their positions and the supporting precedent and evidence.  While the precise definition of “skeleton arguments” is somewhat elusive in my experience, in concept such submissions serve that objective.  In addition, joint exhibit lists, agreed chronologies of significant events and a brief catalogue of the identity and role of important players in the material events can be very helpful in facilitating arbitrators’ grasp of the case.

What is your approach to counsel misconduct? Do you prefer to deal with it there and then or towait until the end of the case?

The answer obviously depends on the misconduct and the case.  Other than a neutral admonition, I would ordinarily defer addressing the issue until the final award, unless repeated or serious violations threatened to disrupt or undermine the integrity of the proceeding.  The timing of a sanction such as an adverse inference would depend greatly on the nature of the misconduct, its impact on the dispute as a whole and maintaining the fairness of the proceeding for both sides.  In rare cases, an immediate and more pointed admonition may be appropriate in order to make clear that recurrence of significant misconduct will not be tolerated.  

What is your usual approach to costs?

The answer again depends on the agreement of the parties and the applicable law and rules.  Absent a mandatory prescription to the contrary, I believe that having costs follow the event, subject to adjustment for any conduct that unjustifiably increases the costs, is the most appropriate standard.

What is a ‘normal’ turnaround time for you to deliver an award (assuming no exceptionalcircumstances)?

I am committed to maintaining my calendar so as to have substantial flexibility in scheduling hearings, ruling on motions and issuing awards.  As a result, I am able to deliver awards generally within thirty to sixty days, subject always to the requirements of the parties’ agreement and applicable rules and the complexity of the case, as well as the assumption of no exceptional circumstances and the schedules of my co-arbitrators.

What is your approach to proposing settlement mid case? 

I believe that settlement is most often in the best interest of all parties if it is possible.  However, I believe that it is the duty of the arbitrator to decide cases fairly and impartially rather than facilitate negotiations and that that obligation takes priority over participating in potential settlement discussions.  In my view, effective mediation generally requires candid ex partecommunications between the mediator and the parties individually, in order to discuss the strengths and weaknesses of their respective cases.  Such communications would be highly problematic if mediation fails and the case returns to arbitration before an arbitrator who had been party to such communications.  As a result, while I may suggest that the parties consider settlement when appropriate, I do not participate in any such discussions.

 

 

 

 

 

 

[1][1]  “Puppies or Kittens? How To Better Match Arbitrators to Party Expectations,” Ema Vidak-Gojkovic, Lucy Greenwood and Michael McIlwrath, available at http://res.cloudinary.com/lbresearch/image/upload/v1460717417/puppies_or_kittens_a_modest_proposal_to_help_arbitrators_better_match_themselves_with_user_expectations_evg_lg_mm_for_aay_2015_153116_1150.pdf(last accessed July 17, 2018).