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Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions

Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions ASA Special Series No. 42

  • Author:
  • Publisher: Juris Publishing
  • ISBN: 9781937518318
  • Published In: December 2013
  • Format: Paperback , 180 pages
  • Jurisdiction: International ? Disclaimer:
    Countri(es) stated herein are used as reference only
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This volume of the ASA Special Series reproduces the transcribed presentations and lively discussions at the ASA Annual Full Day Conference of 1 February 2013 held in Zurich on the topic "Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions". Moreover, it serves to publish selected arbitration materials and written contributions we received from a number of distinguished colleagues on the subject of the deliberations and decision-making process, including various forms of assistance to the tribunal.

At the Conference, the first Panel was moderated by Julian Lew and joined by Piero Bernardini, David W. Rivkin and Matthias Scherer as panelists. They provided an overview and interesting insights into the organization of the deliberations, the form of the deliberations and the drafting of the award. A lively debate with the audience ensued in particular on the question as to when the deliberations should commence: After the first round of written submissions? Or immediately after the hearing? Or only later when the post-hearing submissions have been received? This debate demonstrated as a pars pro toto that there is and cannot be a "best practice" with regard to the deliberations; it all depends on the circumstances of the case.

The second Panel was composed of Phillip Capper, Bernhard Meyer and Pierre Mayer as panellists and moderated by Markus Wirth. They addressed how to deal with potential conflicts in the deliberations, namely with various forms of bias and obstruction, as well as how to structure what may be called a bargaining process. Somewhat surprisingly, it turned out that, although there are provisions in most arbitration rules to deal with the problems of obstruction and bias, it appears that these are rarely invoked by the other tribunal members in order to resist or defend themselves against inappropriate behaviour of a fellow arbitrator. Are the relevant provisions in the various sets of arbitration rules perhaps wrong or not useful, or should they be revised?

The third Panel brought together Andrea Meier, Hans van Houtte, Zachary Douglas and Geoffrey Senogles as panellists and was moderated by Michael E. Schneider. They provided a detailed overview on various forms of assistance to the arbitral tribunal by third persons (such as tribunal-appointed experts, document production masters, experts’ facilitators, secretaries to the tribunal etc.) and addressed the advantages and dangers involved with the utilisation of such assistants. On one hand, it turned out from the presentations and discussions on this topic that the picture of the "lone" arbitrator who does all by himself should be put into perspective. On the other hand, it appears that there has emerged a consensus that more transparency with regard to the use of secretaries and other (legal) assistants would be desirable.

On behalf of ASA Swiss Arbitration Association, we would like to thank the moderators and panellists for all the time and effort they have devoted to the success of the Conference. It was a great pleasure to prepare and navigate through this Conference with such a great number of highly experienced and distinguished arbitrators.

Our special thanks and gratitude go to our Executive Director, Alex McLin, and his Assistant, Loraine de Weck, for the perfect handling of all organisational and administrative matters relating to the Conference, and to Robyn Nott for her impeccable transcription services.

We hope that all those who could make it to Zurich on 1 February 2013 have enjoyed the various contributions and debates as much as we did. Moreover, we hope that this volume of the ASA Special Series provides both interesting and entertaining reading, not only to the participants but also to all those who would have wished to attend. 

Table of Contents

Foreword

About the Editors

About the Moderators and Panellists

Programme of the Conference

Welcome Address and Introduction to the Conference Topic - Michael E. Schneider

The Legal Framework: Rights and Obligations of Arbitrators in the Deliberations - Bernhard Berger

Panel 1: Decision-making and Deliberations: Steps and Issues - Moderated by Julian Lew

Organisation of Deliberations - Piero Bernardini
Form of Deliberations - David W. Rivkin
Drafting the Award - Matthias Scherer

Panel 2: Conflict in the Deliberations: Dealing with Bias and Obstruction - Moderated by Markus Wirth

Dealing with Bias and Obstruction - Phillip Capper
Structuring a Bargaining Process - Bernhard Meyer
Dealing with Dissenting Opinions - Pierre Mayer

Panel 3: Assistance to the Tribunal: Options, Advantages and Dangers - Moderated by Michael E. Schneider

Assistance to the Tribunal: an Overview - Andrea Meier
Document Production Master and Experts' Facilitator - Hans van Houtte
The Secretary to the Arbitral Tribunal - Zachary Douglas
The United Nations Compensation Commission’s Utilisation of Experts - Geoffrey Senogles

Further Written Contributions on the Conference Topic

An Essay on the Challenges to Collegiality - William G. Bassler
Six Modest Proposals Before You Get To The Award  - Nicolas Ulmer
A Short Note on the Decision-making Process - Michael Black
Personal Views on How Arbitral Tribunals operate and Reach their Decisions - Nael G. Bunni
Notes and Samples on Tribunal Deliberations - Karl-Heinz Böckstiegel

Arbitration Materials

Example of Decision Tree
Example of Dissenting Opinion in an Award
Example of Dissenting Arbitrator Refusing to Sign the Award
Mandate of Tribunal-Appointed Expert on Scheduling
Tribunal Assistant: Scheduling Expert
Tribunal Assistant: Scheduling Expert Terms of Reference
Tribunal Assistant: Quantification Expert
Tribunal Assistant: Quantification Expert Terms of Reference

About the Editors:

Bernhard Berger is a Partner in the international arbitration practice of Kellerhals Attorneys at Law, in Berne, Switzerland. He has served as chair, sole arbitrator, co-arbitrator and counsel in numerous international and domestic arbitrations under the ICC, SCAI, LCIA, SIAC, CAS, and UNCITRAL Rules; and in other ad hoc proceedings. Mr Berger's experience also includes various appearances as legal expert on Swiss arbitration law in arbitration and court proceedings both in Switzerland and abroad; and as counsel in arbitration-related Swiss court proceedings, namely on the recognition and enforcement, setting aside, and revision of awards. Mr Berger has an LL.M. from Harvard Law School and a Ph.D. (Dr. iur.) from the University of Berne Faculty of Law. He has authored numerous treatises and articles in the fields of international arbitration, civil procedure and contract law, including International and Domestic Arbitration in Switzerland (2010) and Allgemeines Schuldrecht (2012).

Michael E. Schneider is the President of the Swiss Arbitration Association (ASA). Mr Schneider, founding Partner of LALIVE in Geneva, has practiced international arbitration for more than 35 years, acting as counsel before arbitration tribunals under various rules, including those of the ICC, ICSID, LCIA, Stockholm Institute, the Cairo Regional Centre for International Commercial Arbitration (CRCICA), European Development Fund, UNCITRAL and before other international bodies, including the WTO Appellate Body and the United Nations Compensation Commission (UNCC). He has also been sitting as arbitrator (chair, sole or co-arbitrator) under the rules of many institutions in Switzerland and abroad. Mr Schneider is Vice Chair of the ICC Commission on Arbitration, and has been a member of several of its working groups (1998 Revision of the ICC Rules, Construction, Pre-arbitral Referee). He chaired the UNCITRAL Working Group II (Arbitration) on the revision of the Arbitration Rules (2006 to 2010) and is a member of the executive committee of the Dubai International Arbitration Centre (DIAC) and of its Board of Trustees as well as a member of the Board of Trustees of the Cairo Regional Center of International Commercial Arbitration (CRCICA). 
 

About the Moderators:

Piero Bernardini is an Of Counsel in the law firm Ughi e Nunziante in Rome. He was General Counsel of Eni Group (1980-1985) and served on the Board of Eni and as an Executive Committee member (1986-1990) as well as Chair of international arbitration--LUISS University--Rome (1982-2005). He is the President of the Italian Arbitration Association, a Member of the ICCA Council and has served as Vice-President of the ICC International Court of Arbitration (2000-2006). Further, he is a Member of the ICSID panel of conciliators and arbitrators by the Italian Government Appointment. Mr Bernardini has been acting as arbitrator, president of arbitral tribunals, member of ICSID annulment committees and counsel in more than 300 commercial and investment treaty cases, under the rules of ICSID, ICC, LCIA, NAI, Cairo Centre, UNCITRAL, CAM, AIA, VIAC, and SCC. He is a frequent speaker, moderator or chairman in national and international congresses and seminars and an author of numerous books and articles dealing with problems regarding petroleum, state contracts, investment protection, commercial contracts, and arbitration.

Phillip Capper is Partner and Head of International Arbitration at White & Case in London. He has been involved in countless international disputes as arbitrator, advocate, mediator, legal assessor, or adviser. As arbitrator, Phillip has chaired ICC, LCIA and UNCITRAL arbitral tribunals, and has served as sole arbitrator and party-appointed arbitrator in ICC and LCIA arbitrations. Phillip is a highly regarded advocate in arbitration. As counsel, he has acted under the rules of ICC, LCIA, and the Stockholm, Madrid and Prague Chambers of Commerce, as well as in contractual mediations and ad-hoc arbitrations under UNCITRAL Rules and otherwise. For the ICC in Paris he led small working groups drafting model clauses for ICC arbitration and ADR, and for use with the ICC Rules for Expertise. Formerly Chairman of the Faculty of Law at Oxford University, he is also now Nash Professor of Engineering Law at King's College London, teaching International Arbitration and Construction Law and directs the annual International Diploma Course for the Chartered Institute of Arbitrators in Oxford. Phillip is an Honorary Member of the Society of Construction Law, Honorary Member of the Royal Institution of Chartered Surveyors, and Honorary President of the Adjudication Society.

Hans van Houtte, LL.M. Harvard, is President of the Iran-United States Claims Tribunal (The Hague) and teaches arbitration at the University of Leuven (Belgium), where he held successively the chair of international public law and international private law, while also teaching international business law. He has been a member of the Brussels Bar since 1971 and withdrew as litigation and arbitration Partner at Stibbe (Brussels) in 2000. Since then he has been an independent arbitrator. He sits frequently as an arbitrator in commercial and investment disputes (ICC, LCIA, ICSID, NAFTA, UNCITRAL, ICDR, CEP ANI, DIS, Vienna Centre, DIAC, SCAI, etc.) and has rendered over 200 awards. He also sat as a Commissioner for Real Property in Bosnia, was a member of the United Nations Compensation Commission (UNCC), an arbitrator at the Dormant Bank Accounts Tribunal (CRT, Zurich) and was President of the Eritrea-Ethiopia Claims Commission. He was also vice-president of CEPANI. He can be reached at [email protected].

Julian Lew has been involved with International Arbitration for well over 30 years as both as a practitioner and academic. He has acted as counsel and advised parties in all kinds of international arbitrations. He is now a full-time Arbitrator and sits as chairman of arbitral tribunals, sole arbitrator and co-arbitrator under all the major international arbitration systems, including ICC, ICSID, LCIA, SCC, SIAC, UNCITRAL, and Swiss Rules. Until 2005, he was a Partner at Herbert Smith, and head of its International Arbitration Practice. He is Professor of Law and Head of the School of International Arbitration, Queen Mary, University of London. He has written and published numerous books and articles on international arbitration including Applicable Law on International Arbitration (1978) and Comparative International Commercial Arbitration (2003) (with Mistelis and Kröll). He also has lectured extensively in many countries around the world on all aspects of International Arbitration. He is a member of the ICC International Court of Arbitration (UK) and a member of the Council of the ICC Institute of World Business Law. He was the Chairman of the ICC Commission Task Force on Intellectual Property and International Arbitration, and is currently joint chairman of the ICC Commission Task Force on Costs in International Arbitration. He has an LLB from the University of London and a Doctorate in private international law from the Catholic University of Louvain.

Pierre Mayer is one of the world's leading authorities in international dispute resolution. He has concentrated his practice in arbitration for more than 25 years, both as Counsel and as Arbitrator in international trade, joint ventures and industrial cooperation, technology transfer, and oil & gas distribution under the rules of ICSID, ICC and UNCITRAL. Mr Mayer is listed in The Legal 500 Paris, Chambers, Practical Law Company's Which Lawyer?, and Décideurs Stratégie Finance Droit as one of the world's most respected legal scholars, particularly for his expertise in private international law, a subject he has taught as a Professor of law since 1984 at Sorbonne University in Paris. Before joining Dechert LLP as a Partner in 2006, Mr Mayer was Counsel at Coudert Brothers in Paris for nearly 20 years and then at Clifford Chance as counsel, chairman or co-arbitrator, Mr Mayer has lent his expertise to a long list of arbitration cases in various industrial sectors and countries. His other professional activities include: President of French Committee on International Private Law, Associate member of the Institut de Droit International, Member of Council of the ICC Institute of World Business Law, former President of the Committee on International Commercial Arbitration of the International Law Association, former President of the Committee on Private International Law of the Union Internationale des Avocats (UIA). Mr Mayer has authored numerous publications in the fields of international arbitration, international private and commercial law.

Andrea Meier is a Partner in the international arbitration practice of Wartmann & Merker in Zurich, Switzerland. She represents clients before international arbitral tribunals and state courts in commercial matters, including disputes arising from industrial and infrastructure projects, banking and finance, and M&A transactions. She has also served as sole arbitrator, co-arbitrator and secretary in numerous international and domestic arbitrations under the ICC, SCAI, ICDR, and UNCITRAL Rules, and in other ad hoc proceedings. Ms Meier is co-chair of ASA below 40, the young practitioners' group of the Swiss Arbitration Association. She has an LL.M. from Harvard Law School and a Ph.D. (Dr. iur.) from the University of Zurich Faculty of Law. Ms Meier has authored various articles in the fields of international arbitration and civil procedure, including a chapter on the Emergency Arbitrator in the 2nd edition of the Zuberbühler/Müller/Habegger Swiss Rules Commentary and several chapters, including one on multi-party arbitration, in Arbitration in Switzerland: The Practitioner's Guide by M. Arroyo.

Bernhard F. Meyer is a Senior Arbitrator and Arbitration Counsel at MME Partners, Zurich, Switzerland. He was involved in more than 200 international arbitrations as chairman, arbitrator and counsel under the Rules of the ICC, SWISS CHAMBERS, AAA/ICDR, LCIA, HKIAC, SIAC, VIENNA RULES, WIPO, UNCITRAL and others. He is Vice-Chair of ASA, Chairman of the ICC Commission on Arbitration in Switzerland, Jurisdictional Council Member of the Inter-Pacific Bar Association (IPBA), Member of the ABA Arbitration Commission and he is holding other functions in various arbitration bodies. Mr Meyer studied law at the University of Zurich (Dr. iur.) and Northwestern University School of Law, Chicago, Illinois, USA (LL.M). He is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Fellow of the Singapore Institute of Arbitrators (SCIArb), and has authored or co-authored a significant number of publications in the arbitration field as well as in other fields of international commercial law.

David W. Rivkin is a Litigation Partner of Debevoise & Plimpton LLP in the firm's New York and London offices, has broad experience in the areas of international litigation and arbitration. He has handled international arbitrations throughout the world and before virtually every major arbitration institution. Subjects of these arbitrations have included long-term energy concessions, investment treaties, joint venture agreements, insurance coverage, construction contracts, distribution agreements and intellectual property, among others. Mr Rivkin also represents companies in transnational litigation in the US, including the enforcement of arbitral awards and arbitration agreements. He is consistently ranked as one of the top international dispute resolution practitioners in the world and has been consistently ranked among the top ten international arbitration practitioners worldwide in Chambers Global which has called him "among the very, very best", has noted that he is "wonderful as counsel and wonderful as arbitrator" and is well regarded for producing "high-quality work that is fair and balanced." In 2012, the American Lawyer's Am Law Litigation Daily named Mr Rivkin one of two "Global Lawyers of the Year." In 2011, the National Law Journal named him one of the country's "Most Influential Attorneys". He has also been ranked as the leading American in international arbitration in Who's Who Legal (2013) and in Euromoney's Expert Guide to the Leading Lawyers: Best of the Best (2013). Mr Rivkin has served on the boards of many arbitration institutions, and he is currently also the Vice President of the International Bar Association.

Matthias Scherer is a Partner of LALIVE (Geneva/Zurich). He has practiced international arbitration for 20 years, acting as counsel before arbitration tribunals under various rules, including those of ICC, UNCITRAL, ICSID, Swiss Chambers, LCIA, and CAS. He is regularly appointed as arbitrator by leading institutions, such as ICC, Swiss Chambers, ICSID, Stockholm Chamber of Commerce, DIAC, LCIA, and PCA in Switzerland and abroad. He frequently represents parties in arbitral matters before the Swiss Supreme Court. Matthias Scherer is a past vice-chair of the International Bar Association's arbitration committee and of the arbitration committee of the Swiss Chambers of Commerce. Matthias Scherer is the editor of the journal of the Swiss Arbitration Association, the ASA Bulletin, co-editor of the Swiss International Arbitration Law Reports, and a member of the Board of Editors of the International Arbitration Law Review (London).

Geoffrey Senogles is a chartered accountant Vice President, Forensic Accounting in Charles River Associates in Geneva and London. His core practice is acting as expert witness on financial damages matters in international arbitration--treaty and commercial. He has testified in arbitrations under ICSID, UNCITRAL and ICC rules and involving claims across a diverse range of sectors. Particular sector experience includes; power, energy, telecommunications and commodity trading. He also leads business valuation, financial investigation and oversight mandates. Assignments have taken him extensively to the Middle East as well as Africa and North America. Between 2000 and 2003, he worked on staff at the United Nations Compensation Commission. He has testified to the Iran-US Claims Tribunal and has spoken at legal conferences, seminars. He lectures on financial damages on the 'MIDS' LL.M. programme at the University of Geneva and is listed in the 2012 and 2013 Who's Who in Commercial Arbitration.

Markus Wirth is a Senior Partner in the Litigation / Arbitration Team of HOMBURGER in Zurich. He has more than 35 years' practice in contract and corporate law, advising on transactions and as counsel in commercial and civil law disputes. As arbitration counsel, Markus Wirth has represented Swiss and foreign companies as well as foreign governments and state organizations in numerous arbitrations seated in Switzerland and abroad under a variety of institutional rules and ad hoc proceedings. Today he acts mainly as arbitrator in which capacity he has by now served in over 130 international arbitrations in Switzerland and abroad (Europe, North America and Asia), in the majority as chairman of the panel or as sole arbitrator. He is the immediate past president, and honorary president, of the Swiss Arbitration Association (ASA), a member of the ICC International Court of Arbitration and a Fellow of the Chartered Institute of Arbitrators, London. He presently chairs ASA's task force on the revision of Chapter 12 of the Swiss International Private Law Act on international arbitration in Switzerland.

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