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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
The title of this paper, as suggested by the organizers of the 2011 Conference of the ICC Institute, refers to the "chairman" of the arbitral tribunal, but I nevertheless intend to use the word "president". There are many possible reasons for such a substitution. Suffice it to point to one, namely that this is also the term used in the new ICC Arbitration (and ADR) Rules, which entered into force on 1 January 2012.1
In fact, the ICC Rules, both in their previous and current versions, do not say much about the tribunal's president, beyond indicating how he is to be appointed (articles 12 and 13) and that he can, under certain circumstances, make an award by himself (article 31). In this, the ICC Rules are in no way an exception. Quite the contrary: most of the laws and rules on arbitration do not dwell much on the president or his role, other than providing a method for his appointment and, in some instances, granting him specific powers with respect to the making of awards or, more rarely, procedural orders. Likewise, in preparing this paper, I have come across only a handful of articles and studies devoted specifically to the president and his functions or powers.2
This may come as a surprise, given the importance of the brief and the role that the presidents of arbitral tribunals are called to assume in international arbitrations. Presidents have a "pivotal" role "in ensuring a smooth-running and fair arbitration"; they are, in a sense, "the glue that holds the whole process together".3 It is true that the president occupies a "special position"4 within the tribunal: he is often the only arbitrator whom neither party has directly appointed and is thus endowed with a "particular aura of independence".5 Being in charge of the conduct of the proceedings, he will be more involved in the arbitration process than his colleagues; he will interact with each of his co-arbitrators (or preferably with both of them together) and be the one point of contact or, to use a fashionable yet very fitting term, the interface between the tribunal, the parties and, where relevant, the arbitral institution that administers the proceedings.
Yet, it is just as evident that, as a matter of positive law, the president is cloaked with little formal authority in discharging all these responsibilities. In reality, he will have to "acquire" such authority and seek, elicit and secure the cooperation of the parties (and/or their counsel), as well as the support of his colleagues in the tribunal, using his experience, his qualities and his personality. All this is necessary for the president to steer the arbitration proceedings, fairly and efficiently, all the way to their conclusion, allowing the tribunal to fully achieve its mandate, while successfully accomplishing his own mission in this regard.6
As a consequence, the normative framework (see section 2) may be less important than the manner in which the president chooses to put his powers to use in practice (see section 3). To a great extent, this fact may result from a misunderstanding, namely that the president is a person vested with formal authority and power over others. In reality, he is, first and foremost, merely an individual tasked with the function (and the responsibility) of conducting a procedure.7
If the parties choose to have a three-member panel, the principle is that the arbitrators will jointly discharge their mandate. In other words, they will make their decisions together and collectively tend to the evidentiary proceedings, in particular by attending the hearing as a full tribunal.8
However, this is not to say that the president would be left without any additional prerogatives (see section 2.a)) or that there is no possibility for certain powers to be delegated to him (see section 2.b).
Case management (direction de la procedure) is an implied power of the president, subject to keeping the co-arbitrators informed and making sure they have no objections to his decisions in this context. This power derives from the arbitrators' general obligation to do the necessary to deliver an efficacious award within a reasonable time period, while keeping the costs of the arbitration under control. As long as the president does the job efficiently and without trespassing on the powers reserved for the full panel, this will be advantageous to all and is in fact the norm. As mentioned above, in most cases, the president is more regularly present and active in the arbitration-particularly with regard to its organizational and administrative aspects-than his two colleagues, who will generally rely on him as far as the day-to-day conduct of the proceedings is concerned. This is certainly the best practice, at least in the vast majority of arbitrations, namely all those where there is no intent to disrupt the proceedings-especially no arbitrator with a hidden agenda.
direction de la procedure
Such powers arise from the very nature of the presidential function, but also from the fact that there is a (sometimes simply practical) need for one member of a "composite" decisional body to represent it. This being so, the co-arbitrators should not be permitted to deprive their president of his prerogatives, like monitoring and conducting the proceedings or chairing the hearings. One reason for this is that there is, in principle, no contractual relationship among the arbitrators. Subject to any specific agreements regarding the splitting of their costs and/or fees, the arbitrators' relationship is procedural in nature, meaning that they must abide by the procedural rules applicable by virtue of the parties' agreement, including the definition and delimitation of the president's powers. At this juncture, it may be worth pointing out that such powers do not, as a matter of principle, go as far as to include the possibility for the president to actually give orders to his colleagues.9
• Disposing of hearing-related matters
The president has the power to set the place of the hearings, invite the parties to such hearings and determine their programme, exact times, duration and so forth. On these issues, consultation with his colleagues is absolutely indispensable,10 among other reasons to ensure their availability. Consultation with counsel is also necessary in order to ascertain their and the parties' availability and to ensure the smooth running of the arbitration. However, if necessary, the president (or the full tribunal) may impose on the parties a certain date and/or place for the hearings.
• Contacts with the parties
The co-arbitrators should at all times refrain from having individual contacts with the parties, while the president may have some contact with both parties together. These contacts can take place via telephone calls, at conferences or in procedural hearings. They will sustain the momentum of the proceedings and may help avoid or clear misunderstandings. For instance, the president will be available to elucidate any questions relating to orders issued by the tribunal, resolve procedural differences between the parties or provide an interpretation of some rule of procedure. However, the president should always reserve the possibility for the co-arbitrators to be (collectively) involved in such contacts. It may be opportune to outline this approach in an initial letter to the parties, a copy of which will of course go to the co-arbitrators, expressly indicating that the arbitrators, including the president, will not have any ex parte contacts with either party. Urgency is an exception but arises less and less frequently in practice, as it usually suffices to address an e-mail (with a copy to the other party), for instance to request the extension of a time limit or to obtain a decision on most other urgent matters. Ex parte contacts are thus very rarely necessary.
• Setting (or at least amending) time limits
This has become so customary that there should be a recognized implied power of the president to this effect-provided, of course, that no contrary rules, especially statutory ones, apply.
• Power to sign the tribunal's procedural orders alone
Most often, this power is also the subject of agreed applicable procedural rules. Rules of this kind have become so commonplace that, even in their absence, the president is presumed to have such power. However, subject to an agreement to the contrary, even though the president has the power to sign the tribunal's procedural orders, this ought to be done after consultation with the two co-arbitrators as to the contents of the procedural order, that is to say, the decision itself.11 There also seems to exist an implied power of the president to render procedural orders alone in case of urgency, with the possibility of revision by the tribunal if the circumstances warrant such revision.12 The real difficulty here is the proper definition of urgency, as well as the need to balance it against the severity or importance of the measure ordered. For instance, the president may venture into rendering a procedural order on his own if there is an imperative need to keep to mandatory time limits or protect evidence from disappearing. But this power may be excluded when the applicable rules clearly require the three members of the panel to make any rulings together.13
Always with the benefit of the assistance and support of his co-arbitrators, the president will have his own domaine réservé and, under all circumstances, will be called to play a specific role during the hearings.
• Representing the full tribunal
An example of an emerging implied power of the president (as opposed to a delegated power) is the increasing practice of having him represent the full tribunal at procedural hearings. This sometimes applies to the initial hearing but more often to the so-called "pre-hearing conference". Such appears to be the current trend, and it is usually already agreed upon at the earliest stage of the proceedings, albeit with the reservation that the co-arbitrators will be called if necessary. The pre-hearing conference will usually be held by telephone and will be devoted to procedural matters, limited to the administrative and organizational aspects of the hearing (e.g., sequence of witnesses, interpretation, allocation of time, etc.), but may sometimes also extend to the determination of actual procedural issues (e.g., whether or not to call certain witnesses, attendance at the hearing of certain persons, such as witnesses, when not examined, etc.).
• Chairing the hearings
As the ICSID Arbitration Rules state: "The President of the Tribunal shall conduct its hearings…"14 This includes the so-called police de l'audience, which encompasses time management (including suspensions of the proceedings, imposing silence or, if worse comes to worst, expelling a participant). This power obviously also includes putting questions to the parties and the witnesses, bearing in mind that the president should not monopolize the tribunal's question time and should always endeavour to cater for the needs and preferences of both counsel and the parties (for instance, there is no doubt that the arbitrators have the authority to put questions at any time but the issue is rather to use it at the right time and in the right fashion).
Deliberations must take place, as collegial decisions are of the very essence of multi-member tribunals.15 They represent key moments in the dynamics and internal workings of the arbitral tribunal. In this context, the role and powers of the president can be of considerable importance, especially when it comes to breaking a stalemate.
• Power to organize the deliberations
The president is generally deemed to be responsible for structuring, coordinating and overseeing the tribunal's deliberations. Deliberations can take place in a single meeting or over the course of several meetings (or by other means, including correspondence) throughout the arbitration, in different contexts and with varying degrees of formality. The one fundamental rule that applies here is that the president must always keep both co-arbitrators informed. He should avoid unilateral contacts with one co-arbitrator and in any event should always immediately inform the other of such contacts, requesting his opinion. The president will usually define the procedure to be followed during the deliberations, including their timing (e.g., whether the first deliberation should take place at or right around the time of the evidentiary hearing or final oral submissions) and their format (e.g., questionnaires, identification of the issues, decisions by claims, etc.). In this context, the president should not fail to stress the confidentiality of the deliberation process (unless his colleagues are clearly familiar with that requirement). This is indispensable: a breach of the confidentiality of the deliberations may endanger the award itself as it may cause a breach of the parties' equality and right to be heard.16
• The president's casting vote
The following section examines the delegation of certain powers to the president. At this juncture, it should be stressed that the deliberations cannot be delegated to the president by the co-arbitrators. However, in this regard, a distinction must be made. No delegation will be allowed at all when it comes to reaching an opinion on an award proper, that is to say, the determination required of the tribunal on matters that go to its jurisdiction or the merits of the dispute (the tribunal's pouvoirs juridictionnels). Delegation may be possible for other decisions, such as procedural orders or even provisional measures, either by agreement of the parties or pursuant to statutory provisions.17
In as far as the deliberations on the award proper are concerned, in order to break a stalemate, the president may have a casting vote or even the power to decide alone, which is not, strictly speaking, a "delegation". These options are generally provided for in most statutes and arbitration rules.18 In practice, it appears that this power is used very sparingly and that presiding arbitrators will usually manage to obtain a majority.19 Robert Briner reported that, in the period between 2000 and 2008, there were only three instances of awards rendered by presidents deciding alone in ICC arbitrations.20
In fact, the normative framework should allow the president to have the necessary powers to advance the proceedings. However, as discussed below (see section 3), he should use such powers wisely and as sparingly as possible. Before examining these issues, it is important to consider the possibilities for proper delegations.
As noted above, the delegation of tasks and powers to the president can be carried out either by the parties or by the arbitrators. The present discussion will be limited to the second alternative, since the first should not, in principle, give rise to particular difficulties (subject to any mandatory legal provisions prohibiting the delegation of certain powers).21
At any rate, it is clear that the arbitrators themselves may only delegate their responsibilities if the parties have not barred them from doing so. As seen above, there is no contractual relationship between the arbitrators, save for any specific agreements that they may conclude on the sharing of their fees or costs. As a result, unless there is a specific legal rule allowing delegation, the arbitrators' "agreement" to delegate is really just the exercise of a procedural discretion that the parties have, at least impliedly, vested in them. In order not to have to come back to this question, it should be pointed out here that the new ICC Rules do expressly insist on an expeditious and cost-effective conduct of the arbitration and refer to effective case management (article 22(1)-(2)). They also include an (updated) Appendix IV on Case Management Techniques, which provides examples of means to control time and costs. Whatever the reasons, there is no reference to the delegation of powers to the president as such a means or technique.22
What is expressly permitted or forbidden? As indicated, there is no possibility to delegate the power to decide on the case itself. The issue is whether it is permissible to delegate the conduct of the proceedings, especially the aspects related to time management and the taking of the evidence. There is little guidance to be found in the case law. The Aranella decision of the Paris Court of Appeal,23 in particular, did hold that delegation could be allowed, if limited to specific tasks (e.g., site visits). In casu, the decision acknowledged that the president did not become privy to any information that was not accessible to his colleagues (through subsequent expert hearings and transcripts of the site visits conducted by the president). However, this case's precedential value is limited: its reasoning expressly turns on the consent of the parties, namely that they were aware of the delegation, did not object to it at the relevant time and that they should thus be understood to have consented to it.
The president may benefit from delegated powers with respect to the time management aspects of the arbitration (to the extent that this prerogative is not in part already vested in him as an implied power). He has the power to set and amend time limits. However, setting the procedural timetable itself is a matter that cannot be totally delegated, since: (1) it calls for the availability of all three arbitrators; and (2) it is linked to the shaping of the procedure itself, that is to say, its overall conduct (involving issues such as how many (rounds of) written the chairman 's role in the arbitral tribunal's dynamics submissions are to be made, the timing for the supply of the evidence, etc.). The tribunal may likewise delegate to the president the power to amend the procedural timetable, subject to the same restrictions (e.g., to consult with his colleagues if the amendment calls on their availability or represents an actual change in the shape of the procedure, especially where a decision to stay, or to lift a stay of the proceedings is at issue).
The arbitral tribunal shall itself take the evidence. This rule appears in certain statutes, like the Swiss PILA, which states in its article 184 that "[t]he Arbitral Tribunal shall itself conduct the taking of evidence".24 Is it possible to derogate from this general rule? The PILA does not provide for derogations, and it is generally admitted that, as a result, no delegation is possible (without the parties' consent).25 Other laws, such as the Italian Code of Civil Procedure, allow for the taking of the evidence to be delegated by the tribunal to the presiding arbitrator (or another member of the panel) without particular restrictions.26 The French Code of Civil Procedure now expressly permits the delegation of the steps concerning evidentiary and procedural matters, including in international arbitrations, but only if the parties allow it.27 Hence, it is possible for the arbitral tribunal to delegate a given evidentiary step (such as examining a witness or attending a site visit, including in the company of experts) to the president. It is true that this would deprive his co-arbitrators of the immediate "perception" of the evidence that only physical attendance can provide (such as remembering the attitude of a witness in order to assess his credibility), but this may be balanced against other factors (such as the possible urgency of hearing a witness or visiting a certain site, or cost-efficiency). At any rate, it is unlikely that a purported violation of the principle of collegiality in this respect would endanger the award. First, because the discontented party must object immediately, but also because such a violation would not normally result in a breach of due process or the equality of the parties. Second, this situation is not unlike the one that arises when an arbitrator is replaced during the proceedings. His successor will not have direct knowledge of the procedural and evidentiary steps carried out before his appointment but said evidentiary steps do not have to be repeated, at least not as a necessary consequence.28
Whatever the case may be, is it acceptable for the tribunal to decide that the president will perform all the steps in the evidentiary proceedings by himself without the parties' consent? The answer to this question is usually negative,29 but there does not appear to be any real reason to distinguish between the two situations (partial or total delegation of activities relating to the taking of the evidence).30 Such delegation should therefore be possible, subject of course to the parties' right to object. In all such cases, it is obviously appropriate for the arbitrators to advise the parties in advance, in order to give them a reasonable opportunity to make their positions known. This last caveat concerns the manner in which the president's powers are exercised, which forms the subject of the following section.
In principle, the president will be more actively involved in the proceedings than his two co-arbitrators, in particular by being responsible for the day-to-day monitoring and administrative "follow-up" activities on behalf of the full panel. His colleagues will normally rely on him in this regard. Thus, there is an implied duty for the president to see to it that the arbitral tribunal actually discharges its obligations during the whole course of the proceedings (be it by delegation or otherwise). That being said, it is comforting for the president when one or both of the coarbitrators support him in this regard, for instance by drawing his attention to the need or opportunity to do something at any given time.
The president must at all times remember that the tribunal is entrusted with a single core duty, namely to resolve the dispute. Other obligations (e.g., cost-efficiency or sound and efficient time management) are not to be disregarded but are ancillary to this main duty, and their import tends to vary from one arbitration to the other. Thus, the president must focus on this main objective and, by his conduct, make his awareness of that objective known to all-the parties and their counsel, his coarbitrators and, where relevant, the arbitral institution.
Being focused is one of the salient traits of a leader, that is, someone who is able to set goals, communicate them to others and marshal the necessary support for their realization. However, the president will have to adjust to the circumstances. He should tailor and fine-tune his own "style" of procedure to the specifics and evolution of the arbitration at hand. First and foremost, however, he should carefully evaluate who he going is to work with, especially to determine, as early as possible, (1) whether the parties are going to act in good faith towards the resolution of their dispute or whether one of them will likely endeavour to derail it; and (2) whether one or both of his co-arbitrators will cooperate or, to the contrary, adopt a partisan approach.31 This is in fact essential, since, as seen above, the president has little power of coercion over the parties and none over his colleagues. He can give "orders" to the parties on behalf of the tribunal but should manage this commodity as sparingly as possible to avoid any wear and tear or even the risk of confronting a party or its counsel. To illustrate the point, the axiom here is that a good question will more often than not be preferable to an outright order.
The president should make the parties aware that he has some authority and that he is willing to use it. The question is how and in what circumstances, while never forgetting that the president is not a sole arbitrator but rather the first among his colleagues and equals, the two co-arbitrators. The tribunal's brief is a joint brief that the parties first agree upon among themselves and, subsequently, with the arbitrators.
As to timing, the president should identify any "crisis"-or at least potential watersheds-in the arbitration and adjust his conduct accordingly. Every arbitration will feature some episodes of paroxysm or crisis, for which the tribunal and especially the president should be prepared, as well as, thankfully, some periods of relative calm.
Whether, at any given point in time, the situation requires a close watch or a less hands-on approach, the president may wish to decide from the outset how he would like to be perceived by the parties and how he intends to go about discharging his (and the tribunal's) duties towards them. Being excessively autocratic or authoritarian during the whole process will usually lead to fast decisions, which is an advantage in itself, but these decisions may be less than well accepted, especially if their grounds are not crystal-clear. This may lead, in turn, to a loss of trust in the arbitral tribunal, misunderstandings and aggravation. The tribunal must have and show respect for the attorneys and their work. For instance, imposing extremely tight time limits (or systematically refusing to extend them) will not be satisfactory to counsel if they do not see a need for this. It will not enhance the expeditiousness of the proceedings if counsel subsequently need extensions or if they prove unable to deliver quality products, whether in the form of written submissions, evidence and/or performance at the hearings. In other words, the president should not confuse the expeditious conduct of the proceedings with their hurried completion, especially if, at the end of the day, the arbitrators need a long time to agree upon, draft and notify an award (which will likely be the case if the work of counsel has been rushed).32
A relaxed approach is probably warranted in normal circumstances, provided of course that counsel are experienced and the parties are acting in good faith. That being said, the president should be able to determine immediately whether this "free rein approach" should be suspended (or abandoned altogether) at any moment, for instance if a crisis arises. This is true during the hearings but also outside the hearings. To continue with the equestrian metaphor, the conduct of the president must evidence that he is holding the reins loose but still holding them, ready to tighten his grip instantly if necessary. This in turn calls for availability, determination and firmness.
All the previous remarks lead to the following question: what are the specific qualities required of the tribunal's president and how should he display them? The answer to this question applies to the president's conduct vis-à-vis the parties and their counsel, as noted above, but also to the way he acts towards his fellow tribunal members and, more generally, to the way he discharges his overall responsibilities in connection with the arbitration.
When it comes to the way in which he exercises his authority, the president should basically remain himself. In other words, he should make use of his intrinsic qualities and accept his shortcomings (especially if the appointing counsel and arbitrators already knew him well when they selected him, thus accepting both). Reading the various descriptions of the qualities required of a president is truly frightening, as it seems that he must have them all: authority, experience, charisma, technical competence, reputation, courteousness, self-control, self-esteem, courage and so on. Obviously, it does not hurt to have any (or all!) of these features, but it appears that conscientiousness (which calls for availability), openness to new experiences, the ability to communicate, patience and a capacity to adjust to the circumstances are sufficient if the president is and remains focused on his well-defined objectives.33
"He will learn how to handle his co-arbitrators. The dynamics within an arbitral tribunal are a fascinating aspect of international arbitration, the study of which is yet to be done. Here we have three arbitrators, coming possibly from different legal, cultural and geographical backgrounds, who may have never met before and who have immediately to form a functioning unit able to dispose of procedural and substantive issues. Two of these arbitrators will have been appointed by parties having opposite interests, and each one may have his own conception of how to behave towards his appointing party, towards the opposite party, towards his colleagues. How to handle his co-arbitrators, how to build up the internal cohesion of the arbitral tribunal while at the same time respecting his colleagues' differences and allowing their expression in an appropriate manner, and how to maximize the chances that, whatever the outcome of the case, both party-appointed arbitrators will come out with the satisfactory feeling of having made a substantial and appreciated contribution to the decision-making process-these are the challenges facing the chairman."34
Handling-a word Jacques Werner uses twice in this quotation-co-arbitrators should not be confused with manipulation and should be understood as interacting with them or perhaps at most "managing" them, which is exercising the leadership that the president's role calls for.
As with the parties, and even a fortiori, the president should avoid adopting an authoritarian approach or an excessively lax attitude towards his co-arbitrators. The "right" conduct will of course depend on the personality of the president and those of his colleagues (as well as the specificities of the given arbitration), but the goal is to build a team and foster cooperation within it.
It is essential for the president not to give the impression that he would prefer to work alone in an ivory tower or to ostracize one of his colleagues, especially if this colleague is more junior than the other or less experienced in international arbitration. After all, the parties have agreed that there will be three arbitrators, not only the president. The latter therefore has to find the right balance to create and nurture a certain team spirit within the tribunal. In a nutshell, he will wish to make his fellow arbitrators feel that they are members of a united panel in which each member is expected to contribute to the achievement of the common goal-and thus never forget what that common goal is, namely resolving the dispute.
This does not mean that the president should ignore a colleague's request for assistance, for instance because he is less experienced in arbitration. More generally, it is not unusual for arbitrators to ask for guidance, for example as to when it would be advisable to study the submissions and the attached evidence (e.g., at the time of their receipt or subsequently). The president should always provide such guidance, while keeping the other arbitrator informed and eliciting his comments if that should be necessary. Likewise, advising the co-arbitrators with as much advance notice as possible that he will need their assistance is a good way for the president to nurture team spirit. He may thus implicitly coordinate the learning curves of the panel members and ascertain that both his colleagues will be available at the right time to supply their input. For instance, it is useful for the president to let the co-arbitrators know how he intends to deal with requests for document production orders, that is to say, whether he intends to ask their opinions before submitting a draft order to them or whether he intends to prepare a draft and then ask for their comments on it. In both instances letting them be prepared in time for their task. The same issue will arise, a fortiori, when the time comes for the deliberation and drafting of the award (see below).
A visibly united panel will also have an effect on counsel and the parties, who will usually take stock, be comforted and conduct themselves accordingly, for instance by not counting on either co-arbitrator to support any counter-productive motion, which in turn will be beneficial for the arbitration process as a whole.
This is not to say that all of the tribunal's decisions have to be taken unanimously. Unanimous decisions may be more easily accepted by the parties and also more readily enforced. Nevertheless, the president must be prepared to accept that unanimity is not always possible, be it for good reasons (such as serious differences of opinion, especially on legal matters) or bad ones. In fact, looking for unanimity at all costs may be detrimental.35 First, what matters and what the president will seek is not unanimity but a collective decision-a decision that may perhaps dissatisfy one arbitrator but that is the result of an actual debate within the tribunal. A unanimous decision may appear to be satisfactory at first but can eventually prove unsatisfactory for all three arbitrators if it is not the end product of actual concert but rather the result of overstretched compromises and concessions. Second, and possibly worse, unanimous decisions may be achieved when the three arbitrators strive for unanimity at all costs, failing to consider alternative possibilities out of fear of breaking an apparent consensus, or, worse still, when one, possibly two or even all three arbitrators believe that the other two arbitrators have such convincing arguments that they should not (or no longer) express their own views on a given issue. Nothing endangers the decision-making process more than an arbitrator deciding to withhold his opinion in order not to appear to be breaking unanimity. If dissent is hidden, the arbitrators are not doing their job, and grudges will often surface later in the process, exacerbated by the passage of time.
It is the president's responsibility (at least chiefly) to identify such risks and prevent their realization. In order to do so, the president must not only evince impartiality, but also exercise the leadership his role calls for in a conspicuously impartial way. For instance, if one of the co-arbitrators is more formidable, experienced or prestigious than the other, the president may wish to invite the latter to express his views first. It is also important for the president always to reflect on the right time to express his own opinion. Once it is out, it will not be possible to withdraw it easily, and the two co-arbitrators will react and take a stance commenting on it, objecting to it, accepting it reluctantly or enthusiastically and so forth. At any rate, the president should not take silence for consent if he feels that such silence may be coerced. This also applies to the president himself, who may prefer to overcome his self-restraint and opine first if he fears that his colleagues will otherwise put so much pressure on him that he will not dare speak his own views.36 Another possibility is for an arbitrator to say that he is playing "devil's advocate". It is telling that this is a frequently heard excuse for reluctantly expressing one's inner feelings in contradiction to the majority's view and it should thus be a red light for the president that may signal the uneasiness or reluctance of an arbitrator. The flip side is that the president may also wish to ask one of his colleagues to play devil's advocate in order to test an ostensibly agreed-upon proposition and its actual acceptance by each member of the tribunal. If the president becomes aware of instances of "self-censorship" by a co-arbitrator, provided this awareness does not arise very late in the process, he may wish to reopen discussions on previously agreed propositions, while making sure that he does not antagonize either of his two colleagues in the process. There are courteous and efficient ways of doing so, such as expressing regret for not having thought of the matter earlier or pointing to some passages or elements in the parties' submissions or in the evidence that the tribunal may not yet have (sufficiently) taken into account.
The same applies even if the president has a feeling that one of his colleagues is less than impartial, provided there are no suspicions that some information may be clandestinely communicated to one of the parties. Even a biased arbitrator may be helpful, in particular if he possesses specialized knowledge of relevance to the arbitration, for instance if he is the one member of the tribunal who is the most familiar with the law governing the merits (or has special expertise in a relevant area of said law). If this arbitrator does raise objections, they may be legitimate and it will be important to address them. If they are not, he will have been part of the deliberation process, which is advantageous in many regards.37
As for the actual drafting of the award, the basic principle mentioned above, namely that the co-arbitrators should be informed in advance of how the president intends to proceed so that they may prepare in time, naturally also applies in this connection. The president will usually draft the award himself, submitting working drafts, questionnaires and so on to his colleagues. Dividing the drafting work is also possible, and the late Robert Briner, for example, recommended and practiced this method.38 This is a difficult decision, which will very much depend on the circumstances, including any specific expertise of the co-arbitrators. A good example is that of construction arbitrations, where it may be efficient to have a co-arbitrator draft the more technical sections of the award, such as those relating to quantification, if he is especially experienced in this area, for instance because he is an engineer by training. There are two caveats to this. First, synchronizing the work during the drafting and subsequent editing of the various parts of the award in order to produce a logical and coherent final text is a heavy and timeconsuming task. Second, such "split" drafting should not impair the deliberation itself, namely by resulting in one arbitrator taking full responsibility for his part of the award, without actual control by the others. Thus, if there are successive drafts and/or rounds of deliberations, it will be useful to identify each time what has been agreed and finally deliberated as well as what remains to be decided. The redlining of "travelling drafts", possibly accompanied by a checklist or table of open items, is often a good way of doing this.
If the president has doubts about the integrity of one of his colleagues or feels that a stalemate is looming in the deliberation and drafting process, he may take the additional precaution of asking his co-arbitrators for their express confirmation that he has correctly reproduced the tribunal's decisions in the draft as it stands or ask for any suggestions that either of them might have at that juncture.39 If an arbitrator fails to participate in the deliberation and drafting of the award in spite of invitations and reminders to this effect, the president will have no alternative but to continue the deliberation process by carrying on the exchange of further drafts with both his colleagues, thus always keeping the "absent" arbitrator fully informed. Likewise, the president will have to show courage and good time management if he eventually resorts to rendering the award by himself, or even mentions this possibility to his colleagues.40 Before suggesting this extreme solution, which should always be reserved as a last resort, the president would be well advised to explore all possible avenues to keep the deliberation process from completely derailing. For instance, in an ICC arbitration, if possible in the circumstances of the case, this would be the time to close the proceedings. From that moment onwards, if an arbitrator "absconds", the ICC Court will have the power to allow the continuation of the arbitration with a truncated panel, without replacing the defaulting arbitrator.41
Similar questions arise if the president delegates some of his tasks to an assistant or to the secretary of the tribunal. This situation is examined in detail in Constantine Partasides' contribution to this dossier.
For present purposes, it is important to underscore again that the arbitrators-the president included-may not delegate their deliberation, that is to say, the forming of their decisions. Concretely, arbitrators should in general not commission a third person to draft texts pertaining to the essence of a decision without first having made that decision and, thus, giving directions as to the end result and, usually, the reasons that intimately support that result. But this is the sole limit on delegation. Arbitration has evolved: confronted with large teams of lawyers on each side and massive dockets, including hundreds of exhibits and authorities, the arbitrators and especially the president will, in order to be more efficient, have to delegate certain tasks and organize their activities and the tribunal's work accordingly. Although it has elicited severe criticism, the trend appears to be moving towards this sort of delegation. Arguing that it may tamper with the quality of the drafting does not seem warranted: an assistant may be more literate than the president of the tribunal, especially if the former is a born speaker of the arbitration's language and the latter is not. The exact limit in this regard may be difficult to establish. It is often said that writing will expose many issues that have gone unnoticed or even call into question decisions that had been made. While this may be so in some cases, the observation should not be generalized. After all, the same could be said of the other tasks that arbitrators perform, be it legal research or studying the evidence. Some presidents will be experts at team work and be able to manage assistants while fully preserving their ability to deliberate and decide, while others will not and will prefer to do everything themselves. Both systems work and neither is objectionable, provided there is always the required control.
In this area, as well as in those discussed earlier, the president's approach and methods in taking on and discharging his mandate will play a significant role, not only in the tribunal's dynamics but more generally in those of the arbitration itself.
1 According to article 12(5) of the ICC Rules (2012), where the parties have agreed that their dispute will be referred to three arbitrators, the third arbitrator "will act as president of the arbitral tribunal".
2 Christian Gavalda, 'Le président du tribunal arbitral international', Petites Affiches No. 96, 25 May 1990, pp. 13-19; Claude Reymond, 'Le président du Tribunal arbitral', Études offertes à Pierre Bellet (Paris, 1991) pp. 467-482. The references to Claude Reymond's article in the following footnotes are to the French language version. The article was re-published in English a few years later in the ICSID Review: see Claude Reymond, 'The President of the Arbitral Tribunal', ICSID Review 9 (1994) p. 3 et seq.. More recently, see Neil Kaplan and Karen Mills, 'The Role of the Chair in International Commercial Arbitration', in M. Pryles and M. Moser, eds., The Asian Leading Arbitrators' Guide to International Arbitration (Huntington, 2007) pp. 119-163; Robert Briner, 'The Role of the President', in L.W. Newman and R.D. Hill, eds., The Leading Arbitrators' Guide to International Arbitration, 2nd ed. (Huntington, 2008) pp. 49-66.
3 Kaplan and Mills, supra note 2, at p. 119.
4 Gary Born, International Commercial Arbitration (Alphen aan de Rijn, 2009) p. 1663.
5 Peters Phillip, 'Presiding Arbitrator, Deciding Arbitrator: Decision-Making in Arbitral Tribunals', Austrian Yearbook on International Arbitration (2011) pp. 129-160 at p. 138.
6 About this distinction between the authority of the arbitrator as an inherent power and the "authority" arising from his "supériorité de mérite ou de séduction qui impose l'obéissance sans contrainte, le respect, la confiance" and the observation that "[c]'est en fait cette 'autorité' qui importe chez l'arbitre", see Antonias Dimolitsa, 'Sur "l'autorité" de l'arbitre', in Y. Derains and L. Lévy, eds., Liber Amicorum en l'honneur de Serge Lazareff (2011) pp. 207-211 passim, especially p. 208.
7 According to Black's Law Dictionary, a president is: "One placed in authority over others; a chief officer; a presiding or managing officer; a governor, ruler, or director. The chairman, moderator, or presiding officer of a legislative or deliberative body, appointed to keep order, manage the proceedings, and govern the administrative details of their business."
8 Dominique Hascher, 'Principes et pratique de procédure dans l'arbitrage commercial international', Collected Courses of the Hague Academy of International Law 279 (1999) p. 51 et seq., especially p. 141.
9 In fact, the way to grant additional powers, especially injunctive powers, to the president over his co-arbitrators is for the parties to agree to this prior to the appointment of the arbitrators or, with their unanimous consent, after their appointment. It does not appear that this form of agreement has ever occurred in a published award. It may be unrealistic to contemplate such a possibility, although it might be advantageous in some circumstances. For instance, if the president has the power to summon his colleagues to participate in deliberations or a hearing on a certain date or in a certain place, a mala fide arbitrator staying away will be in breach of such an order. He will of course also violate his general duty as an arbitrator to participate in the deliberations, but this may be more difficult to establish positively. However, such an agreement between the parties would have to be prudently drafted, and the president should be extremely cautious in exercising this power. To revisit the example of the order to participate in deliberations or a hearing, the president should certainly first consult his colleagues about the time, place, opportunity and subject matter of such deliberations or such a hearing. Besides, what would be the sanction of the failure to obey a presidential order? Whatever the sanction might be, its enactment would destroy the homogeneity of the tribunal. This is an ex absurdo demonstration of the fact that the president is equal to his colleagues and should remain in this position.
10 See, however, rule 14(3) of the ICSID Rules, which provides that "[t]he President of the Tribunal shall fix the date and hour of its sittings" and could be interpreted to mean the contrary.
11 Some arbitration rules do expressly provide that the president may issue procedural orders alone if the parties or the arbitrators so agree. See, for instance, article 14(3) of the LCIA Rules, article 24(4) of the DIS Rules, article 31(2) of the Swiss Rules and article 33(2) of the UNCITRAL Rules.
12 The possibility of revision by the tribunal of orders on questions of procedure rendered by the presiding arbitrator alone is expressly provided for in article 33(2) of the UNCITRAL Rules and article 31(2) of the Swiss Rules.
13 See rule 16(1) of the ICSID Rules, providing that "[d]ecisions of the Tribunal shall be taken by a majority of the votes of all its members. Abstention shall count as a negative vote."
14 Rule 14(1) of the ICSID Rules. See also article R44.2 para 2 of the Code of Sports-related Arbitration and Mediation Rules (CAS Code): "The President of the Panel shall conduct the hearing and ensure that the statements made are concise and limited to the subject of the written presentations, to the extent that these presentations are relevant." Article 1693(2) of the Belgian Judicial Code provides that "[t]he chairman of the arbitral tribunal shall be in full charge of the hearings and shall conduct the oral proceedings."
15 See article 1701 of the Belgian Judicial Code: "the award is made after a deliberation in which all arbitrators must take part." "Taking part" does not require a physical gathering but a deliberation cannot be dispensed with. With regard to the requirement of a physical gathering for the deliberations, the text of article 823 of the Italian Code of Civil Procedure is noteworthy, in that it provides that "[a]ny arbitrator may request that the award, or a part thereof, be deliberated by the arbitrators meeting in person". If an arbitrator refuses to participate in the deliberations, the president (and the other arbitrator) will have to address that difficulty, all the while keeping the "defecting" arbitrator informed and giving him the opportunity to opine on every question. Informing the parties of such a situation may or may not be opportune. However, see article 1052(2) of the German Code of Civil Procedure, which requires that the parties be informed of the remaining members' intention to make an award without the arbitrator who has refused to participate in the vote. Section 20(1) of the English Arbitration Act 1996 could be read as meaning that delegation to the president is allowed for any decision, including the award: "Where the parties have agreed that there is to be a chairman, they are free to agree what the functions of the chairman are going to be in relation to the making of decisions, orders and awards." According to Merkin, "[i]t is to be presumed, however, that the chairman cannot have the power to issue the final award in all cases, as this in effect converts him into an umpire." See Robert Merkin, Arbitration Act 1996, 3rd ed. (London 2005) s. 20, p. 64. Whether the parties can even allow the latter form of delegation is debatable. Would it require the assent of the tribunal? Would the award rendered by the president be deemed to have been handed down by a three-member tribunal or by a sole arbitrator? This could result in difficulties, for instance, if there were to be an application for correction of that award or the chairman 's role in the arbitral tribunal's dynamics a request for its revision that is admissible and ready to be submitted to the arbitral tribunal. For a specific case, see article 1051(1) of the Dutch Code of Civil Procedure on so-called summary arbitral proceedings, providing that "the parties may agree to empower the arbitral tribunal or its chairman to render an award in summary proceedings…" (emphasis added). For a recent decision on the principle of the collegiality of deliberations, see the judgment by the French Cour de cassation, 1ère Chambre civile, 29 June 2011, Société Papillon group corporation v. République arabe de Syrie et al., Rev. Arb. (2011)p. 959, with comments by Vincent Chantebout.
16 Article 1479 of the French Code of Civil Procedure expressly provides for the confidentiality of the deliberations, as do, for instance, the Swiss Rules (in article 43(2)) and the ICSID Rules (in rule 15(1)). The fundamental principle of the secrecy of deliberations is reflected, for instance, in article 9 of the IBA Rules of Ethics for International Arbitrators, which states that "the deliberations of the arbitral tribunal, and the contents of the award itself, remain confidential in perpetuity unless the parties release the arbitrators from this obligation". On the importance of maintaining the confidentiality of deliberations, see Yves Derains, 'La pratique du délibéré arbitral', in G. Aksen et al., eds., Liber Amicorum in honour of Robert Briner (Paris 2005) pp. 221-233 at pp. 225-226.
17 The LCIA Rules clearly make this distinction, namely in article 14(3) for procedural orders ("… the chairman may, with the prior consent of the other two arbitrators, make procedural rulings alone") and in article 26(3) for awards ("… [f]ailing a majority decision on any issue, the chairman of the Arbitral Tribunal shall decide that issue"). Likewise, the Swiss Rules make the distinction in article 31(1) (no delegation for awards) and article 31(2) (delegation is possible "in the case of questions of procedure"), as do the UNCITRAL Rules (in article 33). Cf. section 20 of the English Arbitration Act 1996, which provides for the president's casting vote for awards, procedural orders and decisions, without distinction. There does not seem to be any statute or arbitration rule specifically allowing such delegation for decisions on provisional measures. This may, in fact, raise several difficulties, especially if an order on provisional relief is made in the form of an award.
18 Article 1701(1)-(2) of the Belgian Judicial Code provides: "1. … The award shall be made by an absolute majority of votes, unless the parties have agreed on another majority. 2. The parties may also agree that, when a majority cannot be obtained, the president or the arbitral tribunal shall have a casting vote." Article 1701(3) then goes on to set out, in some detail, the modalities for voting within the tribunal when the awarding of a sum of money is at issue and a majority cannot be obtained for any particular sum. Among the arbitration laws allowing for awards to be made by the president alone when there is no majority within the tribunal, see, for instance, section 20(3)-(4) of the English Arbitration Act 1996, article 30 of the Swedish Arbitration Act, article 189(2) of the Swiss PILA and article 1513 (3)-(4) of the French Code of Civil Procedure. It is noteworthy that article 1513 of the French Code of Civil Procedure applies only to international arbitration. As far as institutional rules are concerned, one could mention, for instance, article 31(1) of the ICC Rules, article 31(1) of the Swiss Rules, article 26 (3-4) of the LCIA Rules, articles R46 and R59 of the CAS Code and article 16 of the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Rules). As for the (rarer) statutes and rules requiring (in some cases, unless the parties agree otherwise) that a majority be reached for awards or even for all decisions of the tribunal, see, for instance, article 29 of the UNCITRAL Model Law on International Commercial Arbitration, article 1052(1) of the German Code of Civil Procedure and article 823 of the Italian Code of Civil Procedure, as well as rule 16(1) of the ICSID Rules and article 33(1) of the UNCITRAL Rules.
19 As perceptively observed by Claude Reymond, supra note 2, at p. 473, the simple fact that under many sets of rules (including the ICC Rules) the president is empowered to decide alone if need be is usually sufficient to produce a unanimous or at least a majority opinion.
20 Briner, supra note 2, at p. 52.
21 The delegation is certainly permitted if the parties agree or at least do not object to it. See Paris Court of Appeal, Société Aranella c. Société Italo-Ecuadoriana, 26 April 1985, Rev. Arb. (1985) p. 311. That being said, an absolute limit on the possibility to delegate is the need for a deliberation of any award stricto sensu. In view of this, when a decision is at stake, the arbitrators should be prudent in exercising their discretion to delegate powers to the president and always consider whether the decision in question should be substantively characterized as an award. Whatever the arbitrators may call it, the courts should re-qualify as an award any decision wrongly labelled as a procedural order and then quash it for violation of the mandatory requirement for deliberation if the president has adopted it by himself.
22 It is true that the ICC Commission on Arbitration's Techniques for Controlling Time and Costs in Arbitration (to which appendix IV of the ICC Rules refers) suggest the following in para. 26, entitled "Empowering chairman on procedural issues": "Where there is a three person tribunal, it may not be necessary for all procedural issues to be decided upon by all three arbitrators. The parties should consider empowering the chairman to decide on certain procedural issues alone. In all events, consider authorizing the chairman to sign procedural orders alone." Once again, however, this is a case of delegation by the parties.
23 See supra note 21.
24 Similarly, see article 1696 of the Belgian Judicial Code, article 1042(4) of the German Code of Civil Procedure and section 34(2)(f) of the English Arbitration Act 1996.
25 Jean-François Poudret and Sébastien Besson, Comparative International Arbitration, 2nd ed. (London, 2007) para. 642, p. 550 and the references provided in n. 514.
26 Article 816-ter of the Italian Code of Civil Procedure: "The taking of the evidence or any individual steps or activities to that end may be delegated by the arbitrators to one among them." This is also reflected in article 25(3) of the Arbitration Rules of the Chamber of Arbitration of Milan (CAM Rules). For its part, article 1039(3) of the Dutch Code of Civil Procedure provides, more specifically, that the "arbitral tribunal shall have the power to designate one of its members to examine witnesses or experts".
27 Article 1467 of the French Code of Civil Procedure reads, in relevant part, as follows: "The arbitral tribunal shall take all necessary steps concerning evidentiary and procedural matters, unless the parties authorise it to delegate such tasks to one of its members."
28 See, for instance, article 15(4) of the ICC Rules, article 14 of the Swiss Rules, article 15 of the UNCITRAL Rules, article 17(3) of the SCC Rules and article 20 of the CAM Rules, which leave the matter to the discretion of the tribunal.
29 Reymond, supra note 2, at p. 470. See also Born, supra note 4, at p. 1666.
30 In this sense, see article 816-ter of the Italian Code of Civil Procedure, quoted supra note 26.
31 See Ugo Draetta, Behind the Scenes in International Arbitration (Huntington, 2011) especially ch. IV (The Arbitrators) p. 53 et seq., in particular section III (The Chairperson of the Arbitral Tribunal) p. 61 et seq. In his seminal paper, Claude Reymond elegantly described the chairman 's role in the arbitral tribunal's dynamics the prudent circumspection with which the presiding arbitrator should at first approach his colleagues, until he gets to know them better, including their views as to the role they are to play in the tribunal (see Reymond, supra note 2).
32 There is no absolute rule and the president, as well as the whole tribunal, must make decisions based on the circumstances. For example, if the procedural calendar calls for the exchange of post-hearing submissions, it may be appropriate to give either a long lead-time or a short one for the parties to prepare them. A long time limit will allow counsel to do better work, but the arbitrators' recollection of the case will have faded somewhat by the time the submissions are in. A short period means that there is less information in the submissions but more immediate mental readiness to study them. What is to be preferred will depend on the specifics of each case.
33 For instance, the president should be willing to accept it if both parties express shared views about the conduct of the procedure and/or the "style" of the award they require in a particular case. For example, if they would prefer a fast award at the expense of having every single issue dealt with in a detailed manner, he should be amenable to waiving his legal pride and forsake long legal exposés in the award unless they are indispensable.
34 Jacques Werner, 'Arbitral Chronicle V-David Ricardo and Adam Smith', The Journal of World Investment & Trade 1 (2010) p. 128.
35 O n this point, see also Derains, supra note 16, at pp. 231-232. The reference here is to decisions made by a majority rather than to dissenting opinions communicated to the parties. However, the same reasons will also apply when an arbitrator considers dissenting, albeit less cogently, as a proper dissenting opinion may to a certain extent weaken the award. On the dynamics of deliberations, see also Ugo Draetta, 'Les dynamiques du délibéré dans l'arbitrage: quelques réflexions personnelles', RDAI/IBLJ (2011) pp. 219-229.
36 In order to avoid the above-mentioned difficulties with respect to the fact that, once the president's opinion is out, it is difficult to withdraw, it may be advisable to state that the views so expressed are only preliminary and open to change upon discussion with the coarbitrators. See, for instance, Briner, supra note 2, at p. 63.
37 Similarly Derains, supra note 16, at p. 230.
38 "Ideally, the drafting of different parts of the award will be assigned to different members of the tribunal. For instance, the procedural history may be assigned to one, the factual findings to another and the legal findings to the third. Some editing will subsequently be required, which may be done either by the President or by the member of the tribunal most familiar with the language in which the award is to be rendered." Briner, supra note 2, at pp. 63-64.
39 Cf. Briner, supra note 2, at p. 64; Reymond, supra note 2, at p. 480.
40 See supra note 19.
41 See article 15(5) of the ICC Rules. For a discussion of the differences between the various sets of rules with respect to the issue of truncated tribunals, see, for instance, Born, supra note 4, at pp. 1586-1592.