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Arbitrator Style and Preferences — My Questionnaire Responses

[Last modified 2017-02-23]

Parties looking for an arbitrator will often wonder what to expect from a candidate under consideration. A 2016 article proposes a ques­tionnaire to help reduce surprises.  See Ema Vidak-Gojkovic, Lucy Greenwood and Michael McIlwrath, Puppies or Kittens? How To Better Match Arbitrators to Party Expectations, part IV-A, at 11 (Vienna Inter­nat­ion­al Arbitration Centre Yearbook 2016).  [UPDATE Aug. 8, 2016: See also the authors’ survey-results report.] At the suggestion of a colleague, I’ve set out below my responses to the questionnaire.

Please see especially item 16, which describes how I prefer to man­age an arbitration as an expedited joint business project.

1. Delegation: do you believe it is acceptable for an arbitrator to delegate work to a junior lawyer who is not a member of the tribunal?

DCT answer: 3 (it depends).  This isn’t my practice (I’m a sole prac­ti­tion­er). In some circum­stan­ces, it might make sense for an arb­i­tra­tor who practices in a firm to del­eg­ate research or drafting to a junior lawyer in the firm at a lower bill­ing rate; the arbitrator should dis­cuss this with the parties in advance.

2. Tribunal secretaries: do you believe that it is acceptable for a tribunal to appoint a secretary to assist it with the ad­min­is­tra­tive tasks relating to the proceedings?

DCT answer: 3 (it depends).  This isn’t my practice; it also might not be necessary if the arb­i­tra­tion is being administered by an insti­tu­tion. In any case, a proposal to appoint a tribunal secretary should be discussed with the parties in advance.

3. Preliminary or early decisions: do you believe it is ap­pro­pri­ate for tribunals to attempt to identify and decide potentially dis­positive issues early in a case, even if one of the parties does not consent to this?

DCT answer: 2 (sometimes).  I look for potentially-dispositive issues, and I prefer that the tribunal and the parties collaborate in doing the same after disclosures and discovery (as applicable) have taken place.

In pre-hearing proceedings, though, I don’t decide such issues on my own initiative without first checking with the parties.

  • Part of my job is to look for ways to help the parties con­­trol costs; it’d be unfortunate for the parties to spend time and money on proceedings that might have been avoided by early full- or partial summary disposition.
  • On the other hand, I’m also sensitive to another pos­sib­ility:  One or both par­ties might have spotted the issue but kept silent for its own reasons.

If I were to think that an issue might be dispositive, then I might invite the parties to submit a motion and response, but absent such a motion, I normally wouldn’t decide the case summarily on that basis on my own initiative.  And in any event:

  • I’m mindful that the arbitration rules, the parties’ agreement, or both, might address the extent to which summary disposition is appropriate.
  • Of course I’d give the parties notice and an opportunity to respond before deciding a dis­pos­i­tive issue on my own initiative.

4. Settlement facilitation: do you believe arbitral tribunals should offer to assist parties in reaching a settlement, and actively look for opportunities to do so?

DCT answer: 2 (sometimes).

(a) As I see it, the parties hired me to hear evi­dence and decide the case, not to push them to settle; as a gen­er­al rule, I leave set­tle­ment discussions to the parties unless asked.

(b) At the initial scheduling conference, I en­cour­age the parties to pur­sue settlement (possibly through media­tion), especially as the facts become more clear. I will do what I can to support what­ever set­tle­ment efforts the parties do make.

(c) If parties were to jointly ask me to help them reach a set­tle­ment, then I would try to do so — but without taking action that might rea­son­ably be expected to raise doubts about my impartiality, be­cause the parties might not settle, in which event I would still have to de­cide the case.

5. Early views of strengths and weaknesses of claims and de­fenses: do you believe arbitrators should provide parties with their preliminary views of the strengths and weaknesses of their claims and defenses?

DCT answer: 3 (it depends).

(a) To help the parties identify possible stipulations, I might of­fer neutrally-stated questions and/or obs­er­va­tions about the likely dif­fi­cul­ty (or the likely ease) of proving par­tic­u­lar as­ser­tions.

(b) If the parties were to jointly ask, I might be in a position to pro­vide an early neutral evaluation of the case.

(c) In any event, I strongly believe that it is my duty to keep an open mind until (i) each party has had a full and fair op­por­tunity to submit evidence and arguments, and (ii) I have had a chance to fully con­sid­er each party’s submission.

6. IBA Rules of Evidence: do you believe international tri­bu­nals should apply the rules in proceedings even if one of the parties objects to their application?

DCT answer: 3 (it depends).  My practice is to follow the parties’ ag­ree­ment and the agreed arb­i­tra­tion rules; if those documents didn’t provide useful guidance as to a particular evid­en­tiary issue, then the IBA Rules might represent a reasonable comp­rom­­ise be­tween the Am­­er­i­can and European views.  See also item 7 and item 16 below.

7. Document disclosure: do you believe it is appropriate for international tribunals to grant a party’s request for e-discovery?

DCT answer: 3 (it depends).

(a) I would follow the parties’ agreement and the arbitration rules to the extent that they expressly or implicit­ly addressed the issue.

(b) If those documents were silent on the ques­tion, I might well ap­prove narrow, targ­et­ed e-discovery requests for spe­ci­fic documents (e.g., specific emails).

(c) Normally I’m not inclined to approve sweeping, look-under-every-rock discovery re­quests, elec­tronic or otherwise, because:

  • While counsel often want to find as much evidence as they can to sup­port their case, such efforts can get very costly for both sides, sometimes resulting in little or no marginal benefit.
  • Certainly counsel want to find out what documents might be used against them, but that goal can often be advanced by other means (see item 16 below).
  • Unfortunately, sometimes counsel propound sweeping discovery requests so as to irritate and increase costs for the other side. Part of my job is to try to keep that from happening.

8. Skeleton arguments: do you prefer for parties to provide a summary of their arguments to the tribunal before the hearing?

DCT answer: 2 (sometimes).  As discussed in item 16 below, in all but the simplest cases it can be helpful to go even farther than this question assumes.

(a) First, it’s almost always appropriate, early in the case, for the parties to exchange reasonably-detailed written statements of the following, to the extent not set forth in the pleadings:

(1) the spe­ci­fic material facts that the party intends to prove (and why those par­ticular facts are material); and

(2) how the party currently intends to prove those facts.

This practice is recommended in section 11.33 of the Manual for Com­plex Litigation, published by the U.S. Federal Ju­di­cial Center (cites).

(b) In addition, in some cases it can save time if, before the hear­ing, the parties and I work together to prepare a timeline of events, preferably annotated with citations to the parties’ stip­u­la­tions and to the then-avail­able evidence.

These practices can help the parties save time and expense by:

  • identifying possible stip­u­lations and po­ten­tially-dispositive issues;
  • focusing discovery (if any); and
  • streamlining the presentation of evidence at the hearing.

9. Chair nominations: do you believe co-arbitrators should con­­­­sult with the parties who appointed them before proposing names for a chair to the other coarbitrator?

DCT answer: 3 (it depends).  I’m not opposed to this in principle, but the par­ty-appointed arbitrators might be required to be neutral, in which case such con­sult­a­tions might be problematic.

10. Arbitrator interviews: are you available to be interviewed by the parties before being appointed (in accordance, for ex­ample, with the Guidelines for Arbitrator Interviews published by the Chartered Institute of Arbitrators)?

DCT answer: 1 (always).  I’m happy to be interviewed “off the meter” for a reasonable period of time by parties looking for an arbitrator.

11. Arbitrator interviews: if you are appointed as a co­arbi­tra­tor, do you think parties should interview a prospective chair that you and the other co-arbitrator have identified, before agreeing [to] the appointment?

DCT answer: 3 (it depends).  I’d hope that the parties would take into account the recommendation of the “wing” arbitrators in ap­point­ing the panel chair, but I can’t imagine that I’d ever decline to serve as a wing arbitrator solely because the parties ap­point­ed a chair who hadn’t been recommended by the wings.

12. Counsel misconduct: for a counsel that has engaged in misconduct, do you generally take steps while the pro­ceed­ings are underway, or include consideration of the misconduct in a subsequent award of costs, or do you believe it is not with­in the responsibility of the arbitral tribunal? (choose only one)

(a) Discipline during proceedings, immediately when misconduct occurs

(b) Discipline both during proceedings and in subsequent award on costs

(c) Take misconduct into consideration in cost award

(d) Do not believe counsel misconduct is responsibility of the tribunal

DCT answer: (b). Fortunately, I haven’t encountered counsel mis­con­duct that was serious enough to require discipline. If I did, I ex­pect that I’d proceed more or less as follows:

(a) During the proceedings, I’d impose tailored discipline, which in some cases might including an immediate award of relevant costs; and

(b) Later, if awarding costs for the entire case, I’d take the mis­con­d­uct into account as appropriate;

(c) I’d always focus on keeping the proceedings on track while re­main­ing fair to both parties (and always after notice and op­por­tu­ni­ty to be heard).

13. Costs: do you believe it is appropriate for a party to re­cov­er all of its reasonable costs (including counsel fees) if it has prevailed on its claims or defenses?

DCT answer: 2 (sometimes).

(a) I’m not opposed to awarding a party all of its costs if permitted by the parties’ agreement, including the agreed arbitration rules.

(b) Absent an agreement otherwise, I would expect that a par­ty seeking its costs would pro­vi­de reasonable supporting doc­u­men­ta­tion, for example in accordance with traditional American practice.

(c) If the parties’ agreement gave me any flexibility, I’d normally con­­sid­er the circumstances, including for example the difficulties and un­cer­t­ain­ties of the issues presented and the parties’ conduct during the case.

14. Costs: do you believe it is appropriate for a party to re­cov­er the reasonable costs of any in-house counsel who conduct­ed or assisted the party’s conduct of the arbitration?

DCT answer: 2 (sometimes).  See #13 above. Where in-house coun­sel serve as lead- or assisting counsel, their costs should be treated in the same way as if they were outside counsel.

15. Do you view yourself as conducting proceedings more in the style of the common law, the civil law, or no preference / depends on situation?

DCT response: 4 (more civil than common law).

(a) I’m comfortable conducting arbitration pro­ceed­ings in the common-law trad­i­tion, in which I was trained and in which I practice.

(b) In my view, though, the goals of arb­i­tra­tion might be better served, in some respects, by what I understand to be some of the practices used in civil-law jurisdictions. This stems from my view that, to the extent practicable, an arbitration should be man­aged as a business matter, as discussed in item 16 below.

16. Please provide a statement of how you prefer to conduct arbitration proceedings in cases in which you have been, or could be, appointed:

In my view, an arbitration proceeding should be managed as an expedited, joint business project whose “de­liv­er­ables” are the final evidentiary record and the final award. This view has been shaped in part by past ex­per­ience as an arbitrator; as vice president and general coun­sel of a Nasdaq comp­a­ny; as a law-firm litigator; and as part of the leader­­ship teams of bar as­so­ci­ations and other volun­tary organi­za­tions.  (For more details, please see my “About” page and LinkedIn page.)

With the par­ties’ consent or as authorized by the agreed arbitration rules, I prefer to manage arbitration proceedings along generally the following lines:

1. EARLY SKELETON HEARING PLAN

If the parties have submitted detailed pleadings, then before the initial scheduling conference call, I will often consolidate the parties’ assertions, along with my initial questions about the case, into a skeleton draft of a “Hearing Plan” for use as a guide to disclosures, discovery, and the hearing proceeding.

Below is a (sanitized) excerpt of a skeleton Hearing Plan that I recently prepared for the initial scheduling conference call in a case in which I was the sole arbitrator:

  1. AAAAA Inc.  (“Claimant”) is a [State] corporation.

Claimant position & evidence: Pled in Demand ¶2.

Respondent position & evidence: Stipulated.

* * *

9. During his trips to [State] as Regional Sales Manager for Claimant, Respondent stayed in an apartment in [City] that was provided by Claimant.

Claimant position & evidence: Pled in Demand ¶ 15.

Respondent position & evidence:

(This early organizing of the case will sometimes help facilitate settlement discussions.)

The idea of preparing a skeleton Hearing Plan is informed in part by:

  • AAA Commercial Rule R-32(b), which provides that “[t]he arbitrator, exercising his or her discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute and may … direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case” (emphasis added);
  • The arbitrator code of ethics of the American Arbitration Association, which contemplates that arbitrators will “engage in discourse with the parties or their counsel, draw out arguments or contentions [and] comment on the law or evidence …. These activities are integral parts of an arbitration.” Commentary, Canon I of the AAA’s Code of Ethics for Arbitrators in Commercial Disputes (emphasis added), available at https://goo.gl/kbAmoX (ADR.org); and
  • The federal courts’ Manual for Complex Litigation, which recommends that at the initial pre-trial conference in complex cases, “the judge should require the attorneys to describe the material facts they intend to prove and how they intend to prove them,” Federal Judicial Center, Manual for Complex Litigation § 11.33 at 44 (4th ed. 2004), and that judges “requir[e], with respect to one or more issues, that the parties present a detailed statement of their contentions, with supporting facts and evidence ….” Id. at 46.

2. DISCLOSURES

As soon as practicable after the (brief) initial sched­ul­ing-conference call, the parties should ex­change the fol­low­ing, to the extent known to them at the time:

(i) specific, detailed, written contentions concerning “what hap­pened” and what I should do about it (and why), to the extent not already stated in the pleadings — ideally, those contentions will be consolidated into a joint revision of the ­Hearing Plan;

(ii) all exhibits that the parties might use at the hearing, to the best of their present knowledge; and

(iii) preliminary “will say” statements, i.e., initial outlines of writ­ten witness statements to be used at the hearing as set forth in part 5 below.

All of these initial disclosures should be sea­s­on­­a­bly revised and/or sup­ple­ment­ed as the case progresses.

After these initial disclosures, the parties and I would have a second conference call to firm up the overall schedule and to look for op­por­tu­nities for stipulation and/or summary disposition.

In aid of this effort, I likely would question the parties about their specific factual contentions and how they intend to prove them, as recommended in section 11.33 of the Manual for Com­plex Litigation, published by the U.S. Federal Ju­di­cial Center (cites).

3. DISCOVERY

(a) At the first scheduling call, I typically out­line some less-expensive alterna­tive discovery methods that the parties could consider.

(b) As a general rule, the costly, “let’s allow counsel to look under every rock” ap­proach to discovery should not be used in arb­i­tra­tion unless expressly authorized by the agreed arb­i­tra­tion rules or expressly agreed to by the parties.

(c) If targeted discovery requests are permitted, they should pref­er­a­bly be turned around quickly, e.g., in five to ten business days if possible.

(d) Any third-party discovery subpoena that a party wishes me to sign is to include a prominent citation of my legal authority to do so, mainly to help educate the third party and its counsel. For a survey of relevant case law, see generally Liz Kramer, Docu­ment subpoenas to third parties (Arb­i­tra­tionNation.com 2012).

4. MOTION PRACTICE

Motions and other re­quests should be handled on a fast-track basis by email, conf­er­ence call, or both.  I make myself available for conf­er­ence calls on rea­son­ably-short notice and quickly turn around de­ci­sions on motions.

5. DISPOSITIVE MOTIONS

In traditional dispositive-motion practice, counsel will normally spend considerable time and money in writing an opening brief, a response, a reply, etc. Before that expense is incurred, I prefer holding an informal telephone conference call where counsel and I can review the updated ­Hearing Plan and explore whether an early disposition can realistically be expected.

6. HEARING

(a) If a ­Hearing Plan has not been prepared and updated, then in all but the simplest cases, it likely would be preferable for coun­­­­sel, before the hearing, to bring me up to speed about the basic chronology and disputed issues of the case. Among other benefits, such an approach:

(i) helps me, at the hearing, to rule more quickly on evid­entiary objec­tions, with a better sense for how the proffered evidence fits into the context of the case; and

(ii) might allow counsel to shorten their opening statements.

(b) Direct testimony should preferably be presented mainly by writ­ten witness statement — orally adopted and briefly summarized by the witness, followed by oral cross-examination.  This is a common prac­tice in international arbitration and in many U.S. federal-court bench trials (cites); it can save considerable time overall as well reducing the cost of a court reporter.

(c) To the extent practicable, testimony of multiple witnesses on a com­­mon subject should preferably be conducted in a witness-panel format — especially in the case of expert witnesses, which is some­times referred to as “hot-tubbing” the experts (cites).

(d) Where possible, exhibits and written witness statements should be submitted in the form of a joint appendix or joint “bundle” for easy reference. (Exhibits used solely for impeachment might require dif­fer­ent treatment, of course.)

Within the appendix or bundle, it’s often useful for exhibits to be ar­ranged in chronological order so that they help to “tell the story.”

Except for exhibits used solely for impeach­ment, to save hearing time:

  • exhibits should normally be pre-marked; and
  • exhibits not objected to in advance should normally be admitted; see also subparagraph (f) below.

(f) As to evidentiary objections:  Absent a controlling rule or agree­ment otherwise, the most cost-effective approach to eviden­tiary issues will often be for me:

(i) to be relative­ly liberal in admitting arguably-relevant, noncum­u­lative evidence, but then

(ii) later, to carefully assess how much weight to give to any par­ticular item of evidence based on its ap­par­ent probative value and reliability.

(g) Early in the case, the parties and I should discuss whe­ther it might be appropriate (with the parties’ consent) for me to en­gage a neutral expert, in ad­di­tion to — or if so agreed, in lieu of — party-appointed experts.

(h) Third-party subpoenas for the hearing should clearly state the authority by which the subpoena is issued, again to help educate the person(s) being served. For U.S. cases in which the Federal Arbitra­tion Act applies, consider whether the subpoena should be de­nom­i­na­ted as a “witness sum­mons.”  See generally A Model Federal Arb­i­tra­tion Summons to Test­i­fy and Present Documentary Evidence at an Arb­itration Hearing, by the International Commercial Disputes Com­mit­tee and the Arbitration Committee of the New York City Bar As­so­ci­ation (NYCBar.org 2015).

7. POST-HEARING

At the close of the evidence, before adjourning the hearing, I typic­al­ly offer to do the following, subject to each party’s agreement:

(i) summarize, then and there, my tent­a­tive im­pres­sions of the evidence and how the law applies to it, so as to help the parties prepare their post-hearing briefs; and

(ii) later, circulate a draft award (possibly in outline form) and give the parties a reasonable period of time to review and com­ment on the draft, before issuing the final award.

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