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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ninth Dossier of the Institute focuses on the main participants in the arbitration process: the parties, their lawyers, the arbitrators, their secretaries and the arbitral institutions. Although the above are described illustratively, this Dossier is not an album of photos. Its approach is definitely dynamic. Photos are replaced by film. The word "players" in the title has been chosen on purpose. What particularly interested the speakers and the audience of the 2011 Annual Conference of the Institute is the evolution of the complex and multiple interactions between the participants in an arbitration procedure before, during, and after the proceedings. All the players in an arbitration process are presented in action.
Lawyers like to use movie vocabulary when discussing their performance: were they any good, did they use the right tone, did they overact? Legal briefs often begin with a list of dramatis personae, even if the author may have forgotten that in Latin the word persona originally meant "actor's mask" before it came to signify a "role". There are several reasons for this use of movie analogy. Like a movie, an arbitration process tells a story in this case one which is full of flashbacks. The players in an arbitration procedure have a specific role to play and must respect given rules, much in the same way as people making a movie must. Participants in the hearing impersonate the characters of the President, the arbitrator and the counsel. They stop addressing each other by their first name, and for some hours or days play the role that has been assigned to them. But the analogy between movies and arbitration cannot go very far. Firstly, an arbitration is not a product of the entertainment industry. Not so much because it remains largely confidential, but because it can have very serious repercussions in the real life of one or all of the parties. Secondly, and more significantly, whereas the cast and crew of a movie are supposed to share a common goal-the production of a successful movie-the players in an arbitration procedure do not share the same agenda.
Arbitral institutions are eager to organize a good arbitration which leads to an award enforceable by law. The arbitrators' goal is to achieve justice, both from a procedural and substantive point of view.
However, they also want to manage the case within a reasonable time frame and at reasonable cost, as both these factors are a source of tension. Few lawyers are interested in either the quality of the arbitration or the correctness of the decision taken. Their objective is to win the case or, if they know it is impossible to win, to limit the inevitable loss that their client is going to suffer. At the same time they need to show their clients that they are fighting hard for them in order to maintain their confidence, which can lead to a level of confrontation with the opposing parties and sometimes with the arbitrators, both of which are counterproductive. Finally, there is no common approach among the clients. It depends on their company's position in each case. But, in general, although they expect a fast and economic resolution of the dispute, they also wish to present their case without any limitation, regardless of the length or costs of the procedure. The interaction between those players with different but legitimate interests requires that, beyond the application of the rules of specific arbitration institutions and of some national procedural law, the rules of the game and basic ethical principles must be respected. The major players were very active at the 2011 Annual Conference of the Institute. Their presentations and the following discussions contributed to a better understanding of the need for such rules and principles. The reciprocal rights and duties at stake have been thoroughly analyzed. As a result, this IX Dossier is set to become another great vintage work in the Collection.