Personal preface

Having known Robert Briner, to whom this book is dedicated, for more than twenty-five years, I ask the reader to allow me a personal digression by way of introduction.

Robert Briner and I first met at an ICC seminar in Malbun, Liechtenstein, although I no longer recall the subject of the seminar or the topics on which each of us spoke. The first time we actually worked together-which was in fact the only time both of us cooperated as arbitrators on the same cases-was between 1984 and 1988 at the IranUnited States Claims Tribunal at The Hague, where Robert first chaired Chamber Two of the Tribunal and later became my successor as President of the Tribunal. Since then, in our various functions, we have met at a great number of gatherings and panels in places all over the world. A feature we had in common, as I recall from the regular meetings of the International Council for Commercial Arbitration (ICCA), is that whenever dates for meetings, conferences or congresses had to be chosen far in advance, Robert and I seemed to be the only ones with diaries for the next four years containing whatever other events had already been fixed for that distant future.

On a personal level, a friendship developed, which included our wives Frances and Ali and was highlighted by wonderful dinners at our various homes and wellchosen restaurants throughout the world.

I have chosen as the topic of my contribution to this book a subject which has been suggested to me and which I know to be of interest to Robert, although it is likely that I have little to say that is new to him. [Page115:]

Dare to say 'No' to appointments

Many arbitrators will share with me the experience of being approached by a party or by two partyappointed arbitrators or by an arbitral institution, asking whether they would be prepared to accept an appointment for a particular case. Many may also agree with me that there is a great temptation to accept all or several appointments. I would like to suggest that the efficiency of case management would benefit from our saying 'No' more often.

One reason for saying 'No' may be that, although we might consider ourselves independent and impartial under normal objective criteria (including those now embodied in IBA Guidelines), it is possible that others involved in the case, including a party or its counsel, might see things differently, leading to a dispute over conflicts of interest that could hamper the efficient conduct of the arbitral procedure. Therefore, if in doubt, it might be wiser to refuse appointment than to accept it. This does not mean, however, that one should yield to abuses of the challenge procedure by parties or counsel. To do so would in itself undermine efficient case management.

A second and probably more likely reason to say 'No' is the time factor. It is a natural and most welcome result of the growth of national as well as international arbitration that the need for arbitrators is forever increasing. Although the number of possible candidates has also increased, many of us are receiving more enquiries as to our availability than before and have more concurrent ongoing cases than before. Over the years, I have frequently seen colleagues accept appointments and then, once the procedure was under way, regret that they had almost no or very little time available in the near and more distant future for procedural meetings, hearings and the timeconsuming examination of files. An extreme example was a wellknown London barrister who, as a coarbitrator in a case in which I was trying to set up a time schedule for the procedure, told us that his earliest availability for a hearing expected to last one or two weeks was in two years' time. Another example is an equally wellknown colleague from another country who told me that he regularly allowed 'overbooking' when accepting arbitral appointments because, in his experience, some cases would disappear due to a settlement or other reasons. I would venture to suggest that arbitrators owe parties more than that. We should only accept an appointment if, taking into account the normal development of the pending cases and the suggested new case, we can be sure of having enough time available to deal thoroughly with all the work and meetings coming up in the various proceedings. [Page116:]

I am aware that if an arbitrator says 'No' too often, there is a risk of developing the reputation of generally not being available. However, I believe this risk can be reduced if one explains the reason for one's refusal in a specific case in a professional and friendly manner and indicates that, after a certain period, one would be willing to accept further cases. Besides, could it not also be argued that the risk is at least as great for an arbitrator who, after accepting an appointment, proves to be unavailable to conduct the procedure efficiently and consequently acquires the reputation of obstructing efficient case management?

Getting the procedure off to a good start

Arbitration deals with disputes and therefore cannot be expected to make everybody happy all the time. This is certainly true for the merits of the case, but also to a lesser extent for the arbitral procedure. No arbitrator can assure that agreement will be reached with the parties or between all three members of the arbitral tribunal throughout the proceedings. Nevertheless, or perhaps precisely because of this, it is important to make every effort to get the proceedings off to a good start.

At the very beginning, it would seem preferable to try to select at least a tribunal chairman who is accepted by all parties and their counsel. Hence, most arbitral institutions, even if it is not written into their rules, rightly give the parties or the partyappointed arbitrators a period to agree on a chairman before they appoint one.

Obviously, such efforts will not always succeed. In that case, most arbitral institutions, again for good reason, are strict in applying criteria for conflicts of interest at the beginning of the procedure, so as at least to avoid doubts in the eyes of one of the parties, which would make it more difficult for the chairman and the tribunal as a whole to shape the procedure efficiently.

One of the arbitrators' priorities should be to establish a good working relationship between themselves. Throughout the entire proceedings, and particularly when conflicts arise, a good working relationship will greatly facilitate case management. If, as sometimes happens, two of the arbitrators have known each other before, they should make an effort to include the third and new arbitrator in their relationship and ensure full transparency between all three of them. [Page117:]

Perhaps even more obviously, it is important for the arbitral tribunal to make every effort to establish a good working relationship with the parties and their counsel from the very outset. In my own experience, it is extremely helpful if a meeting in person can be arranged as soon as possible after the constitution of the tribunal. If the arbitrators and the parties' counsel do not know each other from former cases or meetings, it is helpful to be able to connect names with faces and personal reactions. For arbitrators and counsel who do know each other, this opportunity for a free exchange of information and views regarding the subsequent procedure before the tribunal starts managing the case should not be missed. Even in smaller cases, the costs connected with such a meeting are worth the result for the rest of the proceedings. Videoconferences or telephone conferences are alternative options but cannot fully replace a meeting in person. In ICC cases, an initial procedural meeting of this kind may be tied in with the signing of the Terms of Reference. At such a meeting, the arbitral tribunal may also become aware of differences of approach to the subsequent proceedings between parties from common law and civil law countries or between a party represented by an experienced international firm and a party represented by rather inexperienced inhouse, government or local lawyers. Such circumstances will need to be taken into account by the tribunal when shaping and explaining its procedural decisions.

Clarify the rules of the game early

There are many ways of managing cases efficiently, and it is one of the advantages of arbitration over court litigation that arbitral tribunals can shape a tailormade procedure that takes into account the many particularities of each case. In view of the options and possible variations, it is important for the tribunal to identify the principal rules of the game for a specific case as early as possible.

Before doing so, the tribunal will have to examine whether the parties have exercised their autonomy with respect to certain aspects of the procedure, whether applicable institutional rules set down a mandatory framework, and whether earlier consultations with the parties have led to particular considerations or consequences concerning case management.

The most obvious need is to establish a timetable for the subsequent procedure. The timetable should not only include the order of submissions, but also all other procedural steps that, on the basis of prior exchanges with the parties, are

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likely to occur, such as requests for interim measures, requests for disclosure of documents, submission of witness statements and expert reports. The timetable must of course be realistic. In light of the difficulty nowadays of finding dates and periods when all concerned are available, it is generally preferable to set generous deadlines for submissions so as to avoid subsequent requests for extensions, which then upset the remainder of the timetable, including the periods reserved for meetings and hearings. Whether one likes it or not, experience shows that if States or State institutions are involved as parties in the arbitration their complicated decision processes will often require longer periods for submissions.

Provisions for interim measures or any kind of discovery are necessary only if early consultations with the parties show that such requests will be submitted to the tribunal. Recent experience has shown that, more than before, such requests are forthcoming even from parties and counsel in civil law countries. While US style discovery has generally not been accepted in international arbitration, more limited requests for disclosure of documents have become a common feature for which the IBA Rules on the Taking of Evidence in International Commercial Arbitration may be helpful and are in fact frequently used as guidelines.

Unlike the practice followed in most civil law courts, it has become common in international arbitration for parties to be asked to submit written witness statements and expert reports either with their briefs or at later deadlines. Generally, such statements and reports will be of actual evidentiary value only if they can be tested by cross-examination in an oral hearing.

It is in the interests of both the parties-to make sure that their points come across-and the tribunal-to be able to efficiently assess the parties' sub-missions-that use of the briefs, documents, witness statements and experts reports submitted by the parties be made easy for the tribunal. Experience shows that submissions vary greatly depending on the country and jurisdiction and on the quality of the law firms or lawyers involved. The tribunal should therefore not shy away from discussing the matter with the parties and ruling on relatively trivial logistical matters. As an illustration, it might be helpful for briefs to be submitted separately from other documents, for a table of contents to be included with documents that are submitted unbound (so that the tribunal can pull up the most relevant pages), with dividers between the documents, and for submissions, or at least briefs, to be submitted in addition in electronic form so that they can be read during travel and used in word-processing. [Page119:]

Finally, it is advisable to agree on dates of meetings and particularly hearings at the outset, no matter how distant they may seem, so as to make sure that all concerned can block such dates. Also, the major features of how the hearing is to be conducted should be identified very early in the procedure, because parties and their counsel will have to take this into account when deciding on the content and form of their written submissions (briefs, witness statements, expert reports, legal authorities) to the tribunal.

Adaptation of the procedure to specific types of disputes

Although many case management experiences and suggestions may be relevant to most arbitrations, specific types of disputes may require the procedure to be adapted. Sometimes such adaptations are already to be found in arbitration rules applicable to such disputes (e.g. those of ICSID, NAFTA or WIPO). As already mentioned, arbitrations involving States, State institutions or international organizations as parties call for consideration to be given to the particularities of these disputes as compared to those between private enterprises. Even normal commercial arbitration cases, such as construction disputes, disputes on large infrastructure projects, merger and acquisition disputes and multiparty disputes, may require variations from the normal pattern of case management.

Leave room for procedural flexibility

Although it is important to clarify the rules of the game as early as possible, it is also important to leave room for flexibility later in the proceedings. It is well known that cases often develop unexpectedly for the parties and/or the tribunal. What a party may have considered as essential and most important at the beginning of the dispute, often reflected in the Terms of Reference in ICC cases, might change or need adding to when it becomes aware of the other party's submissions and arguments. And what the tribunal considered as the major issues at the beginning may also have to be reconsidered after new submissions have been received from the parties and evaluated. Therefore, a tribunal cannot leave studying the parties' submissions until shortly before the hearing. New consultations may be required between the parties and the tribunal to determine how most efficiently to proceed under such new circumstances. For these reasons, early decisions on the subsequent procedure should not be taken in such a way that they can only be changed or amended with the full agreement of all the parties and the tribunal, for a party's interests or approach[Page120:]

may change in the course of the proceedings to such an extent that full consent may no longer be possible. The procedure has to go on, however. Before deciding on any changes or additions, the tribunal should make sure that the parties have been fully consulted.

Be firm against manipulation of the procedure

Although, as already mentioned, the tribunal should make every effort to consult the parties and to take into account their legitimate procedural and substantive interests, it should stand firm against any attempts to manipulate or sabotage the proceedings. As we all know, this is not a theoretical issue. The limit between effective representation of a party by its counsel and attempts to obtain unfair advantages in the procedure is not perceived in the same way in all jurisdictions and throughout the legal profession. Sometimes challenge procedures are abused, respondents apply delaying tactics, and attempts are made to submit surprise evidence too late in the procedure or even only at the hearing.

To be able to stand firm against such procedural behaviour, the tribunal should clarify the rules of the game sufficiently as early as possible, so as to a party from later claiming a 'misunderstanding'. It may be helpful to expressly mention certain matters such as that no new evidence may be submitted after a certain date, that extension requests will only be considered in exceptional and unexpected circumstances, and that testimony of witnesses and experts at the oral hearing must be limited to issues already raised in their written statements or reports.

We must also face the fact that manipulation or sabotage may sometimes come from one of the coarbitrators. This may occur spontaneously or due to pressure exerted by a party that may have appointed the arbitrator when that party feels that the case might go against it. Most modern institutional arbitration rules provide for such a situation and allow for the majority of the tribunal to continue and decide. However, parties and coarbitrators show great creativity in this connection. For the majority to be able to continue to do its job it is important that contacts and communications between the three members of the tribunal take place with full transparency and that, when one of the coarbitrator starts dissenting on procedural or substantive issues, every effort be made by the majority to continue keeping that arbitrator fully informed, invited to and involved in its deliberations and decisions. [Page121:]

Oral hearing

I have already explained above why it is important at the very beginning of the procedure, not only to fix dates for meetings and hearings, but also to identify the main features of how the tribunal intends to conduct the oral hearing so that the parties can take these into account when deciding on the form and content of their written submissions earlier in the proceedings.

As the case develops and submissions are made, further details will need to be clarified and decided regarding the oral hearing. Again, this should be done in consultation with the parties, be it after a meeting in person, a telephone conference or comments made by the parties on a draft circulated by the tribunal.

For obvious reasons, hearings on limited issues such as jurisdiction, requests for interim measures, or liability before quantum, may have to be shaped differently from a final oral hearing on all aspects and evidence of the case.

The period set aside for a hearing naturally depends on the size and complexity of the case. In modern international arbitration practice, where all involved are very busy and must accommodate other cases and commitments, there would seem to be no alternative to setting aside a fixed period of time for the hearing in advance. In some cases, it may be difficult to estimate the time needed, so flexibility may be needed and an additional reserve period held in case the initial estimate proves insufficient.

It is the tribunal's responsibility, after consultation with the parties and on the basis of its own knowledge of the file by that time, to ensure that the time set aside for the hearing is used to best effect.

Furthermore, every effort should be made to avoid the possibility of an ambush or surprise evidence at the hearing. By the time of the hearing, all major facts and arguments should be 'on the table', creating a level playing field for the parties. For the same reason, as mentioned before, no new documents should be admitted at the hearing unless agreed between the parties or exceptionally authorized by the tribunal.

In today's arbitration world where larger cases turn into battles of documents, the efficiency of the hearing depends quite considerably on how those hundreds of documents of thousands of pages are used in the hearing. In preparation, it may be helpful if the parties prepare a common bundle or hearing binders with [Page122:]

those documents or parts thereof which they actually intend to rely on and refer to in the oral hearing. In the hearing itself, if counsel and their support staff have the required knowhow, PowerPoint presentations of the documents or relevant parts, with highlighting of specific passages, may not only make the relevant texts available to all concerned, but will also save considerable time otherwise needed to search the document in the binders of documents.

Witnesses and experts

Close consideration must be given to the examination of witnesses and experts during the hearing so as to determine how best, in a given case, to bring out the true facts and the most convincing evaluation. Most of the time it would seem advisable only to hear witnesses and experts whose written statements and reports have been submitted in advance. To avoid repetition at the hearing, as everybody is expected to have examined such written statements and reports before the hearing, testimony at the hearing should be limited to a short introduction of the witness or expert by the presenting party plus direct testimony on any developments that may have occurred after the written statement, followed by cross-examination, further direct examination and so on. As far as I can tell, this is now the method most widely used in international arbitration, although I am aware that the taking of evidence in the courts of many civil law countries is quite different and other options may be appropriate if parties or counsel feel more comfortable with their traditional domestic practices.

The agenda of the hearing will have to depend on the particularities of the case and the procedure at hand. There is no one 'best' way to conduct a hearing. As some readers will know, in many cases that I have chaired the tribunal and the parties agreed on what some colleagues such as Jan Paulson and Gabrielle KaufmannKohler, in their publications, have called the 'Böckstiegel Method', which may be described as follows. From the gross time available for the hearing one deducts estimated time for coffee and lunch breaks, procedural discussions and questions by the arbitrators, so as to arrive at net time available for the parties. This time will normally be divided by two between the two parties and each party will be free to use its time as it prefers for introduction and examination of witnesses presented by itself or the other party. This method seeks, on the one hand, to ensure equality between the parties and, on the other hand, to give each party the freedom to use its time for what it considers most important in the hearing. [Page123:]

Variations may be necessary, however. For example, if many more witnesses are heard from one side than from the other side, one party may need more time for cross-examination than the other for introduction and direct examination. If some witnesses or experts need interpretation, additional time may have to be allowed, even if simultaneous interpretation is used to avoid the time lost by consecutive interpretation. Sometimes it may be advisable to recommend that the parties limit the oral examination of legal experts, as experience shows that while their written legal opinions submitted beforehand may be helpful, cross-examination of such experts is often of limited value. Lastly, the option of witness or expert conferencing might be considered as a means of helping the tribunal to weigh up conflicting testimonies regarding the same issue.

Photographs or videos of witnesses or experts?

Finally, I would like to raise in this connection a question that I have long wanted to discuss and for which this learned volume, written and read by leading practitioners of international arbitration, may present an ideal forum for opening the discussion. It may happen, at least in large arbitrations involving many witnesses and experts, that the tribunal only gets round to deliberating several months after the evidentiary hearing, often following two rounds of posthearing briefs. When evaluating the written and oral testimony of witnesses and experts, my coarbitrators and I have had difficulty connecting a face with the testimony, which would help in recalling the personal impression made at the hearing. Reading the transcript and one's own notes helps, of course, but the recollection of the conduct of a testifying person and his or her persuasiveness and credibility would be much better if at least a photograph were available.

I must admit that in my own practice I have never discussed this option with the parties or even asked for photographs. However, I wonder whether other practitioners would agree with me in considering it useful. Could we ask for photographs already attached to written witness statements or expert reports, or at least those actually examined at the hearing, to be attached to the transcript of the testimony?

Videos have been used for depositions and videoconferences have been used if a witness could not attend a hearing in person. They may serve as substitutes if the greater evidentiary value of live oral testimony at the hearing cannot be achieved for some reason. Could it be helpful and worthwhile-at least in large cases-to have a video made of the oral testimony at the hearing? Would this be in conflict with any protection of privacy, even if agreed by the parties? I [Page124:]

hope it will not be thought an abuse of this learned book if I invite the reader to communicate his or her reaction. Given that cases often turn on the tribunal's personal impressions and recollection of the oral testimony at the hearing, it would seem worth considering whether the evidentiary value of testimony might be improved in this way.

Promoting amicable settlements?

Let me briefly mention an issue that has been frequently discussed in recent years. As many of us know, in domestic arbitration in a number of countries such as China and Germany, the parties expect the arbitrators to discuss an amicable settlement of the case at an appropriate moment in the proceedings. This in fact does lead to an amicable settlement in a majority of domestic arbitrations in those countries. In many other countries and jurisdictions, on the other hand, it is not expected and often not even admissible in law that arbitrators assume such a role.

If one looks at present practice in international arbitration, it seems that an active role by arbitrators in finding an amicable settlement is still the exception. However, once parties have become aware of the submissions of the other side, they frequently take the initiative and in fact reach a settlement either by themselves or with the help of the arbitral tribunal.

Deciding the case

If no further briefs are due after the hearing, it would generally seem preferable for the members of the tribunal to have at least a first round of deliberations the day after the hearing while everybody still has a vivid memory of the testimony and arguments heard.

If, however, an oral evidentiary hearing has been held and witnesses and possibly experts examined, it would seem advisable in most cases to invite posthearing briefs from the parties, in which they can present their evaluation of the oral evidence and of the case at large at the end of the proceedings. Parties will often wish, at least in larger cases, to be given an opportunity to reply to the posthearing brief of the other side in a second round. For both rounds, it may be appropriate to limit the number of pages of the posthearing briefs so as to ensure some equality in the parties' presentations. Finally, the tribunal will generally need a statement of the costs of arbitration from each party so as to be able to decide on this matter in its award. [Page125:]

Like the earlier stages of the proceedings and the hearing, there is no 'best' approach when it comes to the tribunal's deliberations. Consideration may need to be given to the particularities of the case, its size and complexity, variations in the relief requested by the parties, disputed procedural and substantive issues, the separation of liability and quantum, etc.

If there is still a good working relationship between the members of the tribunal at this stage, deliberations may be much more informal than otherwise. If, however, disputes on procedural and substantive matters have arisen, the chairman would be well advised to conduct the deliberations using a rather formal procedure with written records.

In any event, total transparency is as important as giving each arbitrator full opportunity to present his or her views. In most cases, the first round of deliberations should be held during a meeting in person between the members of the tribunal, which will show those issues where agreement can be reached and those where disagreement still exists. It will depend on circumstances whether it is more advisable for the partyappointed coarbitrators to express their opinions first-in that case probably starting with the arbitrator appointed by the claimant-or for the chairman's inclinations to be disclosed first so that the discussion can concentrate on issues where the coarbitrators disagree.

When it comes to drafting an award, the most usual practice seems to be for the chairman to make a first preliminary draft on which the arbitrators then comment either orally or in writing. However, if the working relationship between the members of the tribunal is still good or if certain parts of the draft depend on particular expertise which one of the arbitrators has, it may turn out to be more efficient to split the drafting between the members of the tribunal.

The tribunal must not forget that it owes answers to the parties who agreed to bring the case before it. An effort should therefore be made to deal with all the main arguments and contentions of the parties, although it may of course be appropriate and is admissible to indicate that a contention or an argument is not considered relevant or persuasive.

May the present author, whose primary occupation used to be that of a university professor, be allowed to make one final recommendation: Decide the case, no more! The award is not the place for the arbitrators' missionary feelings or academic ambitions. [Page126:]