Conclusion - Taking Pride in Arbitrating - Behind the Scenes in International Arbitration

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CONCLUSIONS -- TAKING PRIDE IN
ARBITRATING

I wrote in the introduction to this book that I would not be
dealing with the legal aspects of arbitration. Reading again what I
have written, however, I see that my legal training has sometimes
got the better of me and that I have been unable to avoid, in certain
situations, taking a view on questions of law, even if only in
passing. I would ask my lawyer readers not to scoff at this but
instead to forgive me. Whatever legal content there is in this book
cannot be dignified with the name of scientific research, but is a
matter of superficial observation.
Another thing I have come to realize is that, in discussing
the role of in-house lawyers, my attachment to the function has led
me to paint what is perhaps too idealistic a picture of what their
role should be. This comes from my disappointment at noticing
how absent they are from the international arbitral stage. That
absence accounts for the paucity of anecdotes in the chapter
devoted to them, by contrast with the others. Those few anecdotes
are in fact just a few of my own experiences as in-house counsel.
This book has merely been an attempt to take advantage of
a summer break to gather my experiences of arbitration, put them
in order and make them available, presumptuously perhaps, to all
the actors in arbitration: parties, counsel, in-house lawyers,
arbitrators and arbitral institutions. Their roles, as I said in the
introduction, are not always as distinct as they should be, but at
times give rise to confusion, if not actual conflict, of interests. The
assumption underlying this effort is one of hope that these
experiences might have some general relevance. If they do not, my
readers must forgive me: I will at least have the consolation of
knowing that I have myself found it very helpful and enjoyable to
gather those experiences and put them into order (though my wife
might not have enjoyed it quite as much, given the time it has
taken me during what was supposed to be a family vacation).

Table of Contents

Full Table of Contents from "Behind the Scenes in International Arbitration"

INTRODUCTION
WHY THIS BOOK, AND FOR WHOM IT IS INTENDED?

CHAPTER ONE
THE PARTIES
1. The "courage not to arbitrate".
2. The frequent lack of interest of parties in the pending arbitration.
3. The parties and attempts to settle.
4. Memo to the parties to an arbitration.

CHAPTER TWO
COUNSEL FOR THE PARTIES
5. The various ways in which counsel can irritate arbitrators: (a) Unnecessarily aggressive attitudes;
6. ... (b) Presenting too many arguments;
7. ...(c) Presenting excessive amounts of documentation and failing to organize it;
8. ... (d) Inappropriate behavior at the hearings;
9. ... (e) Inappropriate attitude towards the arbitrators.
10. The apparent reluctance to settle.
11. Memo to counsel for the parties.

CHAPTER THREE
IN-HOUSE COUNSEL OF THE PARTIES
12. The players most conspicuous by their absence from the arbitration proceedings.
13. Memo to in-house counsel on their role in an arbitration: (a) Choosing arbitration as a dispute settlement mechanism and drafting the arbitration clause;
14. ... (b) Managing and documenting pre-arbitration attempts at settlement;
15. ... (c) Contributing to the decision to initiate an arbitration;
16. ...(d) Selecting outside counsel and controlling them during the proceedings;
17. ... (e) Selecting the arbitrators in collaboration with outside counsel;
18. ... (f) Determining the arbitration strategy: written submissions, hearings and the role of corporate management;
19. ...(g) Organizing internal resources: claims, documents, witnesses and experts;
20. ... (h) Proactively participating in attempts at settlement.

CHAPTER FOUR
THE ARBITRATORS
21. The various ways in which arbitrators can irritate counsel for the parties: (a) Coming unprepared to the hearings; (b) Conducting internal debates during the hearings; (c) Maintaining arrogant or inappropriate attitudes towards counsel; (d) Believing themselves to be better than counsel; (e) Showing lack of respect for the procedure; (f) Not checking in a timely manner for conflicts of interest; (g) Indulging in the prima donna syndrome.
22. Co-arbitrators in particular.
23. The Chairperson of the Arbitral Tribunal in particular: (a) Availability and preparation;
24. ... (b) The efficient management of the arbitration proceedings.
25. Ways in which the Chairperson can facilitate a settlement between the parties: (a) General remarks;
26. ... (b) Indirectly;
27. ...(c) Directly (by communicating the preliminary opinions of the arbitrators, participating in settlement negotiations, caucusing).
28. The loneliness of the sole arbitrator.
29. Memo to arbitrators.

CHAPTER FIVE
THE DYNAMICS OF DELIBERATION
30. Introduction: deliberation meetings and negotiating techniques.
31. The attitude of the Chairperson.
32. The attitude of the co-arbitrators.
33. The "courage to decide": the King Solomon syndrome and the decision on costs and fees.

CHAPTER SIX
ARBITRAL INSTITUTIONS
34. General remarks.
35. Is there a crisis in administered arbitration?
36. The number of ICC cases (and the number of shark attacks).
37. Some general observations.
38. Panels of arbitrators: Beauty contests?
39. Controlling the time and costs of arbitration.
40. The scrutiny of the draft award and the management of dissenting opinions; whether to publish the award.
41. Memo to arbitral institutions.

CONCLUSIONS
42. Taking pride in arbitrating

Author Detail

Ugo Draetta is Professor of International Law at the Catholic University of Milan, Italy. As an international arbitrator, he has acted in over 50 arbitration proceedings. Mr. Draetta is former Vice President and Senior Counsel -- International -- for General Electric Co. (USA); member of the Scientific Committee of the Italian Arbitration Association; member of the Board of editors of the Revue de droit des affaires internationales/ International Business Law Journal, published by Sweet & Maxwell. For more information see www.ugodraetta.com