Arbitrators are individualists

It’s a long and winding road that leads to the career of an arbitrator. It usually passes down the avenue of barrister, solicitor, judge, scholar, businessman, diplomat, politician or expert. Occasionally, it is little more than a sideline at first. Let us assume you are appointed as an arbitrator for the first time in your life. You have to schedule the hearings in between other business commitments, sometimes at the cost of your leisure or even vacation time. After several nominations, the function of an arbitrator takes on the dimensions of an important professional occupation. Sometimes it supplants and supersedes all other occupations. If you become drawn to arbitration as a scholar, for instance, one day you prefer to act as arbitrator than teach your students or write another book. As a barrister, you may prefer to arbitrate a dispute than represent clients. As partner of a large law firm you tend to wonder sometimes if you should quit, since there are so many appointments you have to turn down due to a conflict of interest. It happens that partners of the largest law firms, very much in demand as arbitrators, choose to retire from partnership to devote themselves entirely to the career of an arbitrator. As a result, the community of full-time arbitrators is growing.  

Arbitrators are often great individualists, authorities or sometimes even stars. Such individuals, to use a musical term, make great soloists.  However, it does not suffice to choose three competent, titled and wise soloists to make a band. An arbitral tribunal depends on the team spirit and the social abilities of its members.  Three outstanding soloists do not always form a good trio. To resort to sporting analogies, great arbitrators are somewhat akin to great tennis players. However, they are required to participate in a team event. Accordingly, an arbitral tribunal can best be compared to the crew of a coxed triple scull, with one of the rowers acting as coxswain. 

The ICC has witnessed cases in which the entire arbitral tribunal had to be replaced because three competent, titled and eminent arbitrators quarreled so much that they could not conduct normal correspondence, let alone bring the proceedings to a close and render the award. Arbitral tribunals sometimes represent an explosive mixture of various cultures, temperaments, customs, characters or patterns of behavior. 

As the French anthropologist Alain Peyrefitte, who also served as the Minister of Justice (interesting professional background, by the way), once said: “Human society is founded on trust.” It is a very good thing if the parties have trust in the arbitrators. It is equally important for the arbitrators to trust one another. 

Sometimes members of the arbitral tribunal live on different continents. They open their emails, receive snail mail, listen to the radio and are available on the phone at different times. Occasionally, the same letter or news reaches them at different times. An arbitrator in Australia knows what his colleague in Europe does not, while the American co-arbitrator is still fast asleep. An arbitrator should not correspond with only one co-arbitrator, without copying the other one on the message. If he does, the other arbitrator may feel, even in a trivial matter, that the two co-arbitrators have reached a prior understanding and that they understand each other better, perhaps even with regard to the merits of the dispute. It is best to avoid any misunderstanding by consulting only one arbitrator. However, if it happens, the two arbitrators should immediately share all of their thoughts with the other one. A situation in which two co-arbitrators consult each other to the exclusion of the third is unacceptable. Before contacting the other co-arbitrators one should keep in mind one’s public holidays, planned leaves and other important commitments.

Team spirit does not so much means friendship but a joint task, which, if implemented, should bring satisfaction to all members of the triple scull, which the arbitral tribunal is. Arbitration comes to an end one day, but friendship between arbitrators may remain forever.