“Arbitration … is the private, voluntary agreement to have a dispute resolved by a private actor whose decision is …binding on the parties” and “the parties have opted to have their dispute resolved extrajudicially (in contrast to the forum selection clause) and to be bound by the outcome before they know the terms of the results (in contrast to mediation).” – Peter B. (“Bo”) Rutledge, Arbitration and The Constitution 6-7 (2013)
How does commercial arbitration become “international“?
“International” is between parties from different counties or between parties of the same country where other factors connect the arbitration to a different country, e.g., the seat of arbitration, the dispute’s subject matter in a different country, or applicability of foreign law.
What are my obligations as arbitrator?
The parties have entrusted the arbitrator(s) to adjudicate their international commercial dispute, which they could not resolve themselves. As an arbitrator, without the authority and gravitas of a court judge, I am obligated to decide the case with appropriate care, skill, integrity and diligence so that the parties see my decision as an outcome that they can respect and accept as a just and enforceable resolution of their dispute.
How do I perform as an arbitrator?
For parties choosing international commercial arbitration and arranging for the selection of the arbitrator(s) on the basis of reputation for procedural effectiveness, decisional competence, impartiality and independence, my guiding principle is that the arbitration must be conducted fairly and time-and-cost-effectively. My style is to be respectful, courteous and impartial. Taking into account the legal framework for international arbitration, I am responsive to the parties’ wishes on procedural matters and am normally willing to accept their agreement on: (1) their schedules for written submissions, document production and hearings; and (2) taking of evidence in international arbitration, e.g., IBA Rules of Evidence.
At the hearing, my philosophy is to let the attorneys decide how to present their party’s case. My adjudicatory function is to control the hearing procedurally, to ask questions as needed for clarification, and to exercise case management skills to keep the parties on track and on the mutually agreed schedule.
My objective is to make the best decision, based on the evidence, that is just for the parties and is enforceable. I am obligated to decide the parties’ dispute in accordance with the applicable law, including relevant mandatory law, unless arbitration is ex aequo et bono or amiable compositeur – a rare case. For legal analysis, my breadth of IDR experience provides a good basic understanding of the general principles of the relevant legal issues, particularly for disputants based in English-and-German-language-countries. For the specifics of applicable law, I consider the attorneys’ legal arguments, supplemented as needed by follow-up briefings or research.
What should a party do if it considers me as a prospective arbitrator?
Please check out Arbitrator Disclosure of Potential Conflicts
How can a party find support for drafting an arbitration clause under institutional or ad hoc international arbitration rules?
Please check out Atlanta International Arbitration Society’s sample arbitration clauses.