1. The problem

It is widely agreed that the aim of arbitration is to have disputes resolved efficiently and fairly by arbitrators chosen for their expertise. Views differ, however, on how the opposing interests of procedural efficiency and fairness (or due process) should be balanced. Arbitration generally eschews the lengthy and complicated rules that define this balance in state courts, preferring the approach reflected in Article 19 of the 2012 ICC Rules of Arbitration, which states simply:

The proceedings before the arbitral tribunal shall be governed by the [ICC Rules of Arbitration] and, where the [ICC Rules of Arbitration] are silent, any rules which the parties or, failing them, the arbitral tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration.

When parties choose to arbitrate a dispute, they exercise freedom of contract, which is a principle found in most legal systems. What the parties may settle by an agreement between themselves, they can also resolve by handing the pen over to a third party (the 'arbitrator') whose job it is to fill in the missing parts of the settlement contract. However, arbitrators do more than just fill in a contract; they render an award that is enforceable. To this extent they exercise judicial power like a judge in a state court. This is why the exercise of the arbitrator's power is subject to limits defined by law. While the conduct of the arbitration is subject to any mandatory rules of law at the place of the arbitration and any provisions of that law required to fill gaps in the parties' agreement or in the rules to which they refer, the recognition and enforcement of the arbitral award is governed by the laws of the jurisdiction where recognition or enforcement is sought.

At the same time, arbitration proceedings are based upon a contract whereby the opposing parties purchase the services of an arbitration institution or a panel of arbitrators. Upon accepting a case, arbitrators, as dispute resolution professionals, have a responsibility to perform their function in a timely and competent manner, paying due attention to the quality of the service they provide.

The legal framework in which arbitration is placed knits together as the arbitration gets under way and as issues arise that need to be addressed. Although the rules comprising that framework are different in origin and scope, they can be seen to reflect and protect three underlying principles:

(i) When opting for arbitration, parties consciously seek to replace state court proceedings with a conflict-solving mechanism they consider to be more desirable. As a manifestation of freedom of contract, their choice will be respected in most states. In making that choice, they commit themselves to contributing to the proceedings, failing which they can be considered to have breached their contractual obligation and to be answerable to the other party for contractual remedies.

(ii) No matter whether we consider the parties' agreement, the surrounding contract laws, or the procedural rules governing the arbitration, a party will always have a right to be heard. This right is specifically recognized in Article V(1)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and is consistent with the generally accepted requirement of a fair trial affirmed in Article 6 of the European Convention on Human Rights. The right to be heard covers basic procedural guarantees such as the opportunity to make legal arguments, bring evidence, comment on the proceedings and respond to points of view put forward by the other side. It also implies the parties' right to be treated equally (cf. our comments below on the principle of equality of arms) and a party's right to be assisted by the counsel it chooses.

(iii) An arbitration will only be of any real use to the parties if the proceedings and the award are documented to create a record of what has actually happened.

These principles have been captured in Article 22 of the new ICC Rules of Arbitration, which reads:

Conduct of the Arbitration

1. The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.

2. In order to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.

3. . . . . . . . . .

4. In all cases, the arbitral tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.

5. The parties undertake to comply with any order made by the arbitral tribunal.

[Page7:]

Article 22 seeks to make the parties' agreement to arbitrate operational by creating an obligation to conduct the arbitral proceedings efficiently and ensuring that basic guarantees of due process are observed. It is the arbitrators who, after hearing the parties, set the rules and define the framework for the arbitration in a way that respects what can be assumed to be the parties' motives for choosing arbitration (e.g. flexibility, arbitrators' know-how, international representation).

One important consequence of the greater flexibility of arbitration as opposed to litigation is the considerable discretion arbitrators have in balancing the conflicting interests of efficiency and due process. Provided the arbitral tribunal fulfils its obligation to 'act fairly and impartially and ensure that each party has a reasonable opportunity to present its case'1, it is in principle free to set forth any rule it wishes, unless the parties agree otherwise.

In many cases, there will be no dispute between the parties on how the arbitration should move forward, given their common interest in having the dispute resolved in a timely fashion. However, there are times when one side (typically the claimant) pushes for speed and efficiency, while the other side (typically the respondent) insists on leaving no stone unturned.

This conflict emerges most frequently in discussions on such issues as the procedural timetable, the number of submissions and the length of the proceedings. It is to some extent an inevitable result of the arbitration agreement, which, while implying a wish to resolve the dispute speedily and efficiently (especially if the arbitration clause specifies a time limit for rendering the final award or such a time limit is laid down in the applicable rules of an arbitration institution2), cannot override a party's right to present its case. The question therefore is how to reconcile the right to be heard with the right to benefit from the efficiency arbitration seeks to offer?

A frequent illustration of the conflict between efficiency and due process is when one or more of the parties opportunistically try to delay the proceedings. When considering the parties' divergent arguments on whether to delay or speed up the proceedings, or reduce or expand their scope, the arbitral tribunal's job will not be to give priority to one argument over the other, but rather to balance the interests at stake. How they should achieve this is open to debate. Some arbitrators-often the most popular and therefore the busiest ones-propose or (failing agreement between the parties) impose procedural directions that set precise and rather narrow limits on such matters as the length of submissions, the time allowed for hearing witnesses, and whether oral pleadings are permitted or only written submissions. Others-often those whose roots lie in the more pragmatic approach of Nordic/Germanic procedural traditions-tend to give the parties considerable latitude to decide on how to present briefs and evidence and make oral presentations.

When dealing with such situations, it is important to remember that there is no one-size-fits-all solution. Every dispute has its individual characteristics, as does every legal culture, every counsel and every party. In international arbitrations involving parties, counsel and arbitrators from different legal cultures, there may be different expectations on where a reasonable balance may lie. The members of the arbitral tribunal may come from different backgrounds and find it difficult to communicate among themselves over the choices to be made. However, such communication should be far easier if the choices made are grounded in the principles described above.

It will therefore be helpful for the arbitrators to bear those principles in mind when discussing the choices to be made, both amongst themselves and with the parties. They might encourage the parties to agree on a set of procedural rules and directions likely to provide some answers to the difficulties encountered. It is a feature of institutional rules that they recognize and reconcile the parties' agreement to arbitrate with the arbitral tribunal's right to decide. The new Article 22 of the ICC Rules of Arbitration, for instance, emphasizes the parties' commitment to the conduct of the arbitration (paragraph 1), while stating that the main responsibility to move the proceedings forward lies with the arbitral tribunal (paragraph 2). Then, in paragraph 4, the need to act fairly and impartially and respect the right of the parties to be heard is added as a guiding principle directed at both the parties and the tribunal.

In ICC proceedings, another means of achieving agreement on procedure is offered by the Terms of Reference, which must include 'particulars of the applicable procedural rules'.3 In any event, it is important for arbitrators and counsel to discuss the advantages and disadvantages of whatever procedural arrangements are proposed. In this [Page8:] article, we consider a number of questions that frequently come up when planning an arbitration and how they might be addressed in a manner that takes account of the need to balance efficiency and due process. First, however, we set out the premises upon which our remarks are based.

1) Our discussion is limited to international arbitration. In domestic arbitration, the parties are often in agreement on how the procedure should be conducted (it is commonly the case that they closely resemble state court proceedings), so procedural rules are rarely an issue in themselves. Likewise, questions over the taking of evidence are seldom disputed.

2) We assume that both parties are active participants in the dispute. A dispute in which only the claimant is active raises other issues, which we do not discuss in this article. In the situations we discuss, both parties typically invest considerable resources in the arbitration.

3) It is not our purpose to discuss the present state of laws and principles relating to arbitration procedure or means of recourse against arbitral awards. Our aim is more modest and more focused. We simply wish to suggest some ways of expediting arbitration proceedings while upholding justice and the rule of law.

4) All our suggestions flow from the underlying belief that international commercial arbitration is the most innovative and advanced means of dispute resolution we know. Its innovative qualities are rooted in the contractual flexibility described earlier and fostered by the constant competition between dispute resolution providers. Many innovative procedural techniques developed and refined in commercial arbitration have already inspired and helped to improve other forms of dispute resolution, including mediation and even state court proceedings. The taking of evidence along the lines set out in the IBA Rules on the Taking of Evidence in International Arbitration is one such example. We believe arbitrators should be constantly alert to the need to improve their procedural techniques. The proposals made below are intended to help towards this end.

2. General observations

Although managing an arbitration may in some respects be a highly complex job, with the arbitrators having to tread a fine line between differing demands and expectations, it should always be grounded in the very simple precept that basic and universally recognized procedural guarantees should always be applied. If not, the resulting award would risk being unenforceable.

Within the confines of these basic guarantees, which include a party's right to present its case, arbitral tribunals should be allowed to lay down all conditions they consider relevant. This may imply restrictions on the amount of time available for the questioning of witnesses or on the number of submissions. Such restrictions should always be based on the principle of equality of arms. This principle is in practice generally interpreted as implying the allocation of equal time to both parties. However, the tribunal should also consider proportionality and the relative needs of the parties. If, for instance, the question of whether an oral contract has been made is at issue, the party alleging the existence of the oral contract may require more witnesses to be heard than the other party, who may be content simply to point out the lack of any written evidence of the contract. The party requiring witnesses needs to be given the necessary time, but the tribunal should also be careful to allot equal time to the other party if requested.

Provided the opportunities given to the parties are equal, there is nothing stopping an arbitral tribunal from restricting the length of time during which counsel may speak at an oral hearing and, if necessary, terminating the hearing before they have finished their presentations. Provided such restrictions do not prevent the tribunal from understanding the merits of the case, including the evidence that has been presented, and provided the restrictions are applied to both parties, arbitrators should be allowed wide discretion.

When exercising their discretion, arbitrators are encouraged to take advantage of prevailing business practices and lawyers' working habits. Modern technology offers new and more effective ways of conducting proceedings. This is especially true when it comes to evidence. The arbitral tribunal should ask itself and counsel in what ways evidence could be effectively presented. There should be a reasonable relationship between the resources to be spent on presenting evidence and the value the evidence may be expected to have in the case. [Page9:]

It is not uncommon for parties with larger resources at their disposal to shower the tribunal and the other party with masses of documentary evidence with the devious intention of obfuscating important issues or making it difficult for the other party to offer any meaningful rebuttal. The tribunal should always use its discretion to prevent waste of time and costs and frustration of justice through tactics of this kind. Requiring a party to use highlights, excerpts, timelines and other techniques of presentation to help explain what the evidence is intended to establish can be an effective way of preventing abuse.

When deciding how evidence should be presented, the tribunal may be faced with a dilemma. Although the use of certain techniques of presentation may help to pinpoint the crucial issues in the arbitration, singling out statements and excerpts may put a false perspective on the issues, preventing a more nuanced impression that would be gathered from reading a larger part of the document or the document in full. Further, if in its final pleadings a party relies on a piece of evidence that has not been highlighted along the lines indicated by the tribunal, or if the tribunal refers to such evidence in its award, the other party might object and even challenge the award. It is therefore important to be clear on the legal effect of any techniques of presentation requested by the parties.

3. The new Appendix IV to the ICC Rules

The need for procedural rules of a practical kind that help to ensure efficient case management is highlighted in Article 24 and Appendix IV of the new ICC Rules of Arbitration. Article 24 requires a case management conference to be held and a procedural timetable to be drawn up as soon as possible in the proceedings. At the case management conference, the parties are encouraged to consider the case management techniques listed in Appendix IV, which reads as follows:

The following are examples of case management techniques that can be used by the arbitral tribunal and the parties for controlling time and cost. Appropriate control of time and cost is important in all cases. In cases of low complexity and low value, it is particularly important to ensure that time and costs are proportionate to what is at stake in the dispute.

a) Bifurcating the proceedings or rendering one or more partial awards on key issues, when doing so may genuinely be expected to result in a more efficient resolution of the case.

b) Identifying issues that can be resolved by agreement between the parties or their experts.

c) Identifying issues to be decided solely on the basis of documents rather than through oral evidence or legal argument at a hearing.

d) Production of documentary evidence:

(i) requiring the parties to produce with their submissions the documents on which they rely;

(ii) avoiding requests for document production when appropriate in order to control time and cost;

(iii) in those cases where requests for document production are considered appropriate, limiting such requests to documents or categories of documents that are relevant and material to the outcome of the case;

(iv) establishing reasonable time limits for the production of documents;

(v) using a schedule of document production to facilitate the resolution of issues in relation to the production of documents.

e. Limiting the length and scope of written submissions and written and oral witness evidence (both fact witnesses and experts) so as to avoid repetition and maintain a focus on key issues.

f. Using telephone or video conferencing for procedural and other hearings where attendance in person is not essential and use of IT that enables online communication among the parties, the arbitral tribunal and the Secretariat of the Court.

g. Organizing a pre-hearing conference with the arbitral tribunal at which arrangements for a hearing can be discussed and agreed and the arbitral tribunal can indicate to the parties issues on which it would like the parties to focus at the hearing.

h. Settlement of disputes:

(i) informing the parties that they are free to settle all or part of the dispute either by negotiation or through any form of amicable dispute resolution methods such as, for example, mediation under the ICC ADR Rules;

(ii) where agreed between the parties and the arbitral tribunal, the arbitral tribunal may take steps to facilitate settlement of the dispute, provided that every effort is made to ensure that any subsequent award is enforceable at law.

Additional techniques are described in the ICC publication entitled "Techniques for Controlling Time and Costs in Arbitration". [Page10:]

4. Specific suggestions

a) In what circumstances should a party be allowed to insist on the postponement of deadlines or dates for hearings due to a practical impediment like counsel being extremely busy?

When answering this very practical question, the two competing principles of procedural efficiency and due process inevitably come into play. On the one hand, the trust that underlies the relationship between a party and the lawyer representing it in what may be a very serious legal conflict presupposes that the party be given the freedom to choose the lawyer it wants. It takes a bold arbitrator to reject a lawyer due to a busy schedule if the party represented by the lawyer is exposed to potential liability running into large sums of money and alleges that the case cannot be presented adequately by anyone else (for example, because of a long-standing client relationship). On the other hand, a party's right to choose its lawyer cannot take precedence over the other party's right to benefit from arbitration once agreed upon by the parties. As already mentioned, an agreement to arbitrate implies a commitment by the parties to contribute to the progress of the proceedings . . . even if this means retaining another lawyer.

It is important not to overestimate the difficulties caused by such a situation. Most lawyers work in firms where colleagues may assist if a given member of the firm is prevented from attending. If the arbitration agreement provides a time limit for rendering the final award, the tribunal will have strong grounds for ordering the arbitration to move forward with speed.

In principle, an arbitral tribunal should be free to set time limits and dates for oral hearings that can be considered reasonable given the complexity of the arbitration and the amounts in dispute. A party should not be entitled to repeated or lengthy extensions of time limits on the grounds that counsel or key persons are occupied on other matters. However, unavoidable delays may sometimes occur when lawyers with a very busy schedule are retained.

When faced with a dilemma of this kind, arbitrators may find it helpful to apply the 'veil of ignorance' test expounded by John Rawls in A Theory of Justice. Accordingly, they could ask themselves what the parties would have agreed upon if they were unaware of the position they were in as either claimant or respondent. However, such a test is not a panacea, and the arbitral tribunal should therefore always try to get an early impression of the relative importance of a speedy decision for each party.

Techniques available to the arbitral tribunal to help balance the parties' conflicting interests in efficiency and fair treatment include bifurcating the proceedings or dividing them into separate stages and issuing separate decisions at each stage. The parties may be insufficiently versed in the use of flexible techniques, and the tribunal should at all times keep this in mind and suggest procedures that might assist the overall flow of the arbitration and help the parties to assess the options at their disposal.

b) In what circumstances is it reasonable to restrict the amount of evidence presented by the parties?

Experience shows that the greater the value of the dispute, the more documents are produced in the arbitration. Experience also shows that many of these documents are not essential to the tribunal's understanding of the case or to the claims and allegations made by the parties. Therefore, one may ask if it is reasonable to impose restrictions on a party in that regard.

Whenever the arbitral tribunal is faced with the question of advancing speedily or allowing further evidence to be introduced that is likely to cause delay, the tribunal should keep in mind the fact that any waste of time and money caused by producing such evidence may to a large extent be mitigated in its decision on costs in the final award. By contrast, a decision to disallow further information on legal and factual issues may not be easy to rectify.

The arbitral tribunal should observe the principle of proportionality, which may be interpreted in different ways. For instance, parties to high-value disputes will need to be given a greater opportunity to present their case than parties to more trivial cases. However, the relative importance of the award to each of the parties should be taken into account, too. An amount may be considered large by one party but not by the other. Moreover, the conflict in question may require that a party relying on witnesses be given a greater opportunity to hear witnesses than a party relying on documents.

c) In what circumstances is it reasonable to restrict the presentation of evidence by parties?

Arbitrators should have a mind for innovation. The information society has provided us with a broad range of techniques for communication and managing information. Many of these techniques are already in use in arbitration. Nowadays, both [Page11:] briefs and supporting documents are commonly submitted as pdf documents by email. This practice has helped to reduce uncertainty over compliance with time limits. More often than not such documents are subsequently also produced on paper and forwarded by courier. One might ask, however, whether the presentation of documents by email is sufficient in itself and, if the answer is no, whether it would suffice to send them subsequently by ordinary mail rather than by courier.

A party's right to present its case does not imply that it may do so in any way it desires. The tribunal should be free to suggest and, if no agreement is reached between the parties, order that evidence be presented in a specific format.

In modern arbitration a party or its counsel can no longer use as an excuse the fact that it has decided not to make use of such technologies in widespread use. Therefore, arbitral tribunals should be free to propose or even impose rules that refer to commonplace communication and case management techniques to make the arbitration more effective while at the same time giving the parties a full opportunity to present their case. For instance, they might require that documents containing crucial evidence be submitted on paper, but background material in electronic form only. The purpose of the background material should be to help understand the main issues.

Preparatory conferences are often held by telephone, while witnesses resident in remote locations may be heard by video links or Skype. Techniques used to handle documentation include virtual data rooms.

There are various ways in which evidence can be presented. Evidence from witnesses can be produced in written witness statements or by examining witnesses. In each case, various techniques may be used, such as witness conferencing, video conferencing, or taped witness statements.

A separate but related issue is whether the tribunal may require the parties to make limited presentations of the main issues as they see them shortly before the close of the proceedings (e.g. digests or executive summaries). This can be quite helpful, especially if each party presents its case in more or less the same way. By requiring each side to make a final submission in accordance with a specified format, the arbitral tribunal may gain extra insight into the crucial issues.

However, such an attempt can be counterproductive if the parties come from different backgrounds and have different working methods and expectations. For example, they might place different emphasis on the use of written submissions as supposed to closing oral arguments. The tribunal should always remember it has an obligation to render a fair and correct decision, rather than reward the best written final submission or the best closing speech. Sometimes, requiring identical work products may underscore rather than eliminate differences.

d) To what extent should the arbitrators defer to the parties' presentation of expert evidence?

As is well known from both state court proceedings and arbitration, one or more of the parties may try to transform the dispute into a battle of experts by calling experts in support of their claims and relying heavily on testimonies from such experts. If the members of the tribunal are not experts, they may find this creates a difficult working environment and undermines their decision-making power. Although in many fields of technical and scientific expertise experts may have reason to differ, there are also times when they create disagreements under the pressure of their mandate. It may be hard for an arbitral tribunal composed of lawyers to assess to what extent disagreements between experts are reasonable or unreasonable.

A technique increasingly employed to overcome this handicap is expert witness conferencing or so-called 'hot tubbing'. This means that the tribunal requires both parties' experts to be present at the same time and directs a controlled dialogue between the experts, with a view to getting the experts to explain why and on what they disagree.4

Such a direct confrontation of experts can be more useful than letting the parties' counsel conduct the examination of expert witnesses. Experience shows that many experts are less antagonistic and rhetorical when communicating with colleagues within their field of expertise than are lawyers when communicating such expertise at second hand. However, it should be recalled that an arbitration is best conducted as an adversarial process and the use of such techniques should not make it inquisitorial, nor should it remove the opportunity for a party's counsel to cross-examining experts called by the other party. [Page12:]

e) To what extent should arbitrators try to sort out unclear legal matters by asking questions at the risk of being seen to 'assist' one of the parties to the detriment of the other?

In international arbitration, it frequently happens that the parties' different legal cultures lead to misunderstandings over legal matters and unclear legal positions. Whilst arbitrators clearly have a duty to clarify the parties' legal positions for the benefit of their own understanding, how should they deal with the situation in which one party has obviously misunderstood the other party's legal arguments? On the one hand, a fair trial presumes that the parties know what they are doing. On the other, it is vital that the arbitrators act impartially and also are seen to do so.

Both courts and arbitral tribunals are regularly faced with such situations. One approach that judges and arbitrators sometimes adopt is to suggest through careful hinting, e.g. 'Does claimant plan to call Mr A to testify?' or 'We note that claimant has presented as evidence correspondence between the parties after the signing of the contract, but that an earlier draft was circulated between the parties before the contract was agreed. Does any party intend to present as evidence the correspondence relating to this earlier draft?'

There is a fine line between, on the one hand, being overly suggestive and, on the other hand, clarifying mere misunderstandings by filling in obvious gaps in the parties' arguments, their chain of evidence, or their legal submissions. The arbitrators should always consider whether any suggestion they make could be construed as impairing one or both parties' impression of their impartiality. A test of impartiality is whether a particular question could be asked equally of both sides at any stage in the proceedings. A test of the need for clarification would be for the tribunal to ask itself whether there is a risk that the losing party will be surprised by the tribunal's reasoning or findings, and if so whether the party has reason to be upset.

f) In what circumstances would it be acceptable to render decisions on a purely written basis only?

Different legal cultures have different views on whether cases should be presented orally or through written documentation only. Both approaches have their advantages and disadvantages, which may vary depending on the matter in dispute and the style preferred by the litigator.

The first question to ask is whether a party has a fundamental right to plead its case orally. Many states and institutional rules give the parties such a right. According to Article 25(6) of the 2012 ICC Rules of Arbitration, the arbitral tribunal may decide the case solely on the documents submitted by the parties 'unless any of the parties requests a hearing'. If the rules allow the tribunal to decide this question at its discretion, the next question is in what circumstances would it be appropriate to dispense with an oral hearing and decide upon the basis of written material only?

Supreme courts in many states, including Denmark and Sweden, often render their decisions on a purely written basis. Decisions are always made on this basis in appellate proceedings, which could in some ways be compared to arbitration as the powers of appeal courts are not limited to the annulment of the decision of a lower court. Furthermore, the well-known Uniform Domain Name Dispute Resolution Policy (UDRP) implemented by the World Intellectual Property Organization as a sui generis form of arbitration for disputes relating to internet domain names is based on a written procedure.

If a dispute involves only legal issues, if the parties are resident in distant places, and if the amount in dispute is relatively small, there may be grounds for conducting the arbitration on paper only.

g) How long should the award be?

One of the main purposes of writing an award is to show the parties that the arbitral tribunal has understood the case. Some arbitrators simply refer to the briefs the parties have presented and transcripts of the oral hearings. Others prefer to give their own account of the evidence that has been presented, at the risk of being accused of having misunderstood the facts.

It seems to be more valuable to the parties to have a full account of the deliberation of the arbitral tribunal, with extensive references to the evidence that has been submitted (where relevant), rather than an extensive and detailed statement of the facts (narratio).

Again, it must be emphasized that each arbitration is unique and that the arbitrators should ask themselves what service the parties may be expecting of them, given the circumstances. For instance, if both parties have appointed legal scholars as arbitrators, it may indicate that they expect thorough legal analysis in the award. [Page13:]

5. Concluding remarks

As indicated above, there are numerous ways of making arbitral procedures more efficient through the use of novel techniques and technologies. To balance the need for efficiency against the need for due process when applying such techniques, it may be useful to consider the following:

First, the tribunal should at all times be mindful of remaining impartial and creating a work product that will be able to stand up under court scrutiny and other review. A good way for an arbitral tribunal, especially when composed of members from different backgrounds, to make sure that this requirement is met, is to write down the arguments in favour or against the outcome sought. Regardless of whether the decision needs to be in writing, the exercise of going through the analysis in writing is always useful.

Secondly, and finally, arbitrators are hired for their expertise, but also for their impartiality, and the latter is the most important quality. That they remain impartial throughout the proceedings is equally crucial. One way for an arbitrator continuously to check his or her impartiality is to ask the following questions:

1. If this (unreasonable or reasonable) submission had been made by the other party, would I have made the same decision, because it is the right decision on the merits?

2. Irrespective of whether my decision has been produced speedily, or after great deliberation accompanied by written reasons, will it stand up if the reasons are made known to the parties?

If either of these questions is answered negatively, the decision should be reconsidered.

1
ICC Rules of Arbitration, Article 22. Cf. Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Article 19: 'Conduct of the arbitration (1) Subject to these Rules and any agreement between the parties, the Arbitral Tribunal may conduct the arbitration in such manner as it considers appropriate. (2) In all cases, the Arbitral Tribunal shall conduct the arbitration in an impartial, practical and expeditious manner, giving each party an equal and reasonable opportunity to present its case.'

2
e.g. ICC Rules of Arbitration, Article 30.

3
ICC Rules of Arbitration, Article 23(1)(g).

4
For further discussion of this technique, see W. Peter, 'Witness "Conferencing"' (2002) 18:1 Arbitration International 47.