Jurisdiction - Singapore
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Asia Pacific – Know Your Arbitrator.

2 March, 2015

 

 
Comprehensive information about potential arbitrators is not readily available, but there are a number of useful sources that can help you choose the right person.
 
Importance Of Knowledge
 
The Cochrane Collaboration is a project dedicated to the collection of the best available evidence in medicine. 1 Gathering such evidence enables doctors to make informed choices about treatments for patients.
 
Choice is an important part of international arbitration. However, the confidential nature of arbitration cases often means that there is an information deficit, making choice difficult. This is particularly true of the selection of arbitrators. Parties cannot choose national court judges, but may learn about them by reading their judgments or watching their cases; in contrast, parties can choose arbitrators, but may not read their awards or sit in their arbitrations. They must look elsewhere for information about potential arbitrators.
 
Where To Learn About Arbitrators
 
1. Directories
 
Legal directories are often a good starting-point. These survey the opinions of practitioners about arbitrators on an annual basis and identify arbitrators who are most in demand.
Directories tend to focus on a few leading arbitrators, however – who may be universally praised but tend also to be uniformly busy. Directories can distort as well, by concentrating on particular jurisdictions, giving the impression that there are only a few arbitrators available there; but others in the jurisdiction may also be suited to the particular characteristics of a case, while alternative candidates can be brought in from elsewhere. Finally, directory listings ultimately derive from the same limited sources of information (albeit that they have the advantage of drawing on many of these sources): researchers do not themselves observe the arbitrators.
 
2. Qualifications And CVs
 
Parties may request a potential arbitrator’s CV, and review their qualifications. These qualifications might be relevant for the subject-matter of the dispute (such as a doctorate in the relevant national law), or relate to the process of arbitration itself (such as fellowship of an arbitration organisation). However, it is important to remember that qualifications are usually academic-based rather than the result of observation of arbitrators “in action”; and, in some cases, qualifications may have been gained a long time ago.
 
CVs of arbitrators also often list cases in which they have sat. Experience usually indicates acquired ability, and multiple appointments shows a vote of confidence by those who select arbitrators. This may not indicate that an arbitrator is suited to a particular case, of course, and parties should be wary of excluding suitable candidates who may not, for whatever reason, have sat in many cases.
 
3. Publications
 
It can be useful to survey publications by arbitrators. Again, these may not show someone’s suitability for a particular dispute – arbitrators tend to publish articles about arbitration, rather than about substantive law or specific situations – but they can speak volumes about an arbitrator’s personality. As F. L. Lucas observed in his classic work on writing style: “those who publish make themselves public in more ways than they sometimes realise”.2 Publications can demonstrate the intelligence of an arbitrator, the scope of their knowledge, or their no-nonsense approach.
 
4. Recommendations
 
Taking soundings from arbitration practitioners about prospective arbitrators can help. Practitioners interact with arbitrators regularly, not only during cases but also at seminars, conferences and other events. One should be careful of incomplete information from anecdotes, as well as of unconscious bias or even superstition (i.e. “I was successful before this arbitrator the last time so I should be successful if I nominate them again”). It is also important not to confine yourself to one source: the more views the better, and not only from counsel but also, if possible, from arbitrators who have sat with a candidate and have observed them “behind the scenes”.
 
5. Interviews
 
Codes of Ethics do not bar contact with potential arbitrators: parties may meet candidates andinterview them. Such direct interaction can be useful, rather than relying entirely on indirect sources. Codes of Ethics, however, do circumscribe what may be discussed in interviews. The SIAC Code of Ethics, for example, limits conversation between parties and prospective arbitrators to the general nature of the dispute, the names of the parties and the expected time-period required for the arbitration.3 This can make discussions stilted and artificial, and some arbitrators decline interviews for fear of accidentally overstepping the mark. On some occasions, also, an interview may not be practical within the time available (for example, because of the location of the arbitrator). The Chartered Institute of Arbitrators has issued guidelines to assist with interviewing prospective arbitrators.4
 
6. Arbitrator Intelligence
 
An interesting new development is the Arbitrator Intelligence project, which was launched in 2014.5 Initiated by Professor Catherine Rogers of Penn State University, this aims to gather information about arbitrators in order to promote transparency in the selection of tribunals. In its first phase the project has begun to collect unpublished awards, and the intention is to move on to researching, via surveys and questionnaires, such relevant topics as arbitrators’ approaches to case management, evidence-taking and rendering of awards. The project faces challenges in gathering sufficient good quality information to inform parties properly about individual arbitrators. Nonetheless, if there is enough buy-in from arbitration practitioners the project may become a valuable resource in the future. It could be a Cochrane Collaboration for arbitration.
 
Practical Tips
 
  • Be aware of the limited nature of the information that is available about arbitrators. Gather as much information as possible about a prospective arbitrator before deciding on their suitability for an appointment.
  • Do not rely solely on a recommendation from one person. Use as many sources as possible, and cross-check the information that you receive.
  • Monitor the progress of Arbitrator Intelligence, as a potentially useful resource for information about arbitrators.
 
End Notes
 
1 See http://www.cochrane.org/.
 
2 F. L. Lucas, Style: The Art of Writing Well (3rd Edition, Harriman Modern Classics), chapter 2.
 
3 SIAC Code of Ethics for an Arbitrator, paragraph 3.1: see here.
 
4 The Chartered Institute’s guidelines can be accessed here.
 
5 See http://www.arbitratorintelligence.org/
 
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For further information, please contact:

 

Ben Giaretta, Partner, Ashurst
ben.giaretta@ashurst.com

 

Michael Weatherley, Ashurst

michael.weatherley@ashurst.com

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