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Behind the Scenes in International Arbitration

Behind the Scenes in International Arbitration

Author: Ugo Draetta
Publisher: Juris Publishing
ISBN: 9781933833804
Published In: May 2011
Format: Paperback , 126 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Behind the Scenes in International Arbitration reveals what really happens behind the scenes of the large stage of the international arbitration -- a world of its own. Though arbitration has become a big business, its proceedings are not open to the large public, because of their confidential -- and sometimes opaque -- nature. Thus, Ugo Draetta offers his perspective as an insider, outlining some behaviours of the various players in the arbitration stage, which are sometimes irrational, emotional, bizarre or counterproductive.

Drawn from the personal experiences of the author's 30 years in the field, the book is essentially based on a number of real life anecdotes (obviously on a no name basis), some of which will have you laughing out loud. The players identified in the book are (a) the Parties, (b) the outside counsel, (c) the in-house counsel, (d) the arbitrators, and (e) the arbitral institutions. A separate chapter is devoted to each one of these players, ending with a “memo” summarizing the behaviours to be avoided.

Behind the Scenes in International Arbitration is not a legal book, nor a book dealing with “ethics” of the arbitration... As examples, the author considers the "King Solomon" syndrome of many arbitrators, the prima donna attitudes, the loneliness of the sole arbitrator, and compares the number of arbitration cases with the number of shark attacks resultant of available statistics. This book aims to increase the efficiency, seriousness and dignity of arbitration proceedings, to the advantage of those who are presently players or aspire to become players in the arbitration stage.

INTRODUCTION: WHY THIS BOOK, AND FOR WHOM IT IS INTENDED?

CHAPTER ONE: THE PARTIES
1. The "courage not to arbitrate".
2. The frequent lack of interest of parties in the pending arbitration.
3. The parties and attempts to settle.
4. Memo to the parties to an arbitration.

CHAPTER TWO: COUNSEL FOR THE PARTIES
5. The various ways in which counsel can irritate arbitrators: (a) Unnecessarily aggressive attitudes;
6. ... (b) Presenting too many arguments;
7. ...(c) Presenting excessive amounts of documentation and failing to organize it;
8. ... (d) Inappropriate behavior at the hearings;
9. ... (e) Inappropriate attitude towards the arbitrators.
10. The apparent reluctance to settle.
11. Memo to counsel for the parties.

CHAPTER THREE: IN-HOUSE COUNSEL OF THE PARTIES
12. The players most conspicuous by their absence from the arbitration proceedings.
13. Memo to in-house counsel on their role in an arbitration: (a) Choosing arbitration as a dispute settlement mechanism and drafting the arbitration clause;
14. ... (b) Managing and documenting pre-arbitration attempts at settlement;
15. ... (c) Contributing to the decision to initiate an arbitration;
16. ...(d) Selecting outside counsel and controlling them during the proceedings;
17. ... (e) Selecting the arbitrators in collaboration with outside counsel;
18. ... (f) Determining the arbitration strategy: written submissions, hearings and the role of corporate management;
19. ...(g) Organizing internal resources: claims, documents, witnesses and experts;
20. ... (h) Proactively participating in attempts at settlement.

CHAPTER FOUR: THE ARBITRATORS
21. The various ways in which arbitrators can irritate counsel for the parties: (a) Coming unprepared to the hearings; (b) Conducting internal debates during the hearings; (c) Maintaining arrogant or inappropriate attitudes towards counsel; (d) Believing themselves to be better than counsel; (e) Showing lack of respect for the procedure; (f) Not checking in a timely manner for conflicts of interest; (g) Indulging in the prima donna syndrome.
22. Co-arbitrators in particular.
23. The Chairperson of the Arbitral Tribunal in particular: (a) Availability and preparation;
24. ... (b) The efficient management of the arbitration proceedings.
25. Ways in which the Chairperson can facilitate a settlement between the parties: (a) General remarks;
26. ... (b) Indirectly;
27. ...(c) Directly (by communicating the preliminary opinions of the arbitrators, participating in settlement negotiations, caucusing).
28. The loneliness of the sole arbitrator.
29. Memo to arbitrators.

CHAPTER FIVE: THE DYNAMICS OF DELIBERATION
30. Introduction: deliberation meetings and negotiating techniques.
31. The attitude of the Chairperson.
32. The attitude of the co-arbitrators.
33. The "courage to decide": the King Solomon syndrome and the decision on costs and fees.

CHAPTER SIX: ARBITRAL INSTITUTIONS
34. General remarks.
35. Is there a crisis in administered arbitration?
36. The number of ICC cases (and the number of shark attacks).
37. Some general observations.
38. Panels of arbitrators: Beauty contests?
39. Controlling the time and costs of arbitration.
40. The scrutiny of the draft award and the management of dissenting opinions; whether to publish the award.
41. Memo to arbitral institutions.

CONCLUSIONS
42. Taking pride in arbitrating

Ugo Draetta is Professor of International Law at the Catholic University of Milan, Italy. As an international arbitrator, he has acted in over 50 arbitration proceedings. Mr. Draetta is former Vice President and Senior Counsel -- International -- for General Electric Co. (USA); member of the Scientific Committee of the Italian Arbitration Association; member of the Board of editors of the Revue de droit des affaires internationales/International Business Law Journal, published by Sweet & Maxwell.