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Michele Patocchi – I have one short comment and one short question. The short comment is about the day that has been set in order for the arbitrators to make their decision. I think there is agreement that this is before the drafting of the award starts generally. But I think one should be wary of generalisations. Let me give you two examples: you have a share purchase agreement where a party exercises a call option, wants to purchase shares and the only issue is whether that option is properly exercised in accordance with the contract terms and the law. Assume for a moment that these are not complicated issues. Let’s assume there are three arbitrators. Each arbitrator might have decided for himself, perhaps subject to hearing the other arbitrators’ views, upon reading the request for arbitration and perhaps the statement of claim. That would not require a long process. Whereas if you are in a complex construction dispute, even after deliberating with your two colleagues, as the president you start drafting the award not knowing exactly what you will decide on particular claims. Because the technical evidence is extremely complex, deliberations were not clear-cut and so you have perhaps cautiously reserved your own views and you want to take a much closer look at all that has been written and put in front of you. The moment when a particular decision is done, is probably in certain cases when the award is drafted. Whereas in other cases, it’s much earlier. It seems to me that it is very difficult to generalize. The question is about statistical data. I heard that some data about bias is on the judicial experience in the United States. And it seems to me that arbitration is an entirely different world. I do not want to over-state that but I would like to hear the panelists’ views on it. Let me put it crudely, if a judge today has one case less, he or she would not care less because tomorrow he or she knows he or she has another case. And that works just like in an administration. Arbitrators would
Speaker I – It seems to me, what you’re talking about is that it doesn’t necessarily change the outcome. The other influences may simply exacerbate them. It’s almost a separate influence, a separate bias. Unfortunately, we all have experiences of a tendency with some arbitrators who look at their own interests, rather than the case. I have had that experience, unfortunately. And I know from my colleagues that I am not alone. I’m not sure really how easy it is to resolve that. We can try to pick better people but rather like the discussion we were having earlier about the preparation of witnesses, and it always makes me think about documents. Unfortunately, there are lots of different people practicing in lots of different ways. There are many people who will never change the way they behave, the closeness of their relationship with counsel who repeatedly appoint them. And this happens. Unless institutions and parties get a lot tougher, particularly on repeated appointments, that is one area we cannot actually do anything about. It is difficult to see how you can challenge it.…
Paolo Marzolini – I would just like to add one point. There was somebody who said that “there is a market for everybody”. And there is, of course, a market for arbitrators who are very keen to think about their proper market and develop such market. If one believes that appointments as arbitrator are all about the business of market development, this person would be very much keen to considering the ideas one party
Participant I: We have discussed and we have heard from you the negative impacts of possible biases of the arbitrators. And those you may not be aware of, which is understandable. Personally, you may not be aware of what you are doing at that point in time. But there are psychological effects which you do become aware of, like compassion. Not in the sense of going and greeting that big law firm’s counsel, but you feel sympathetic to that person over there, you like that person. You feel it and you know inside that you will listen to that person much more. Because we all do that, if we like someone, we listen to him or her. So, what do you do when you are aware of it? Do you do anything extra in such case?…
Speaker I – I do not know if I would say compassion, sometimes pity. So let me be clear, let’s assume that you have one party represented by a very experienced counsel and another party who is barely represented by counsel. And it happened to me, at the moment, this party is actually drafting the email with the arbitrator directly, and this person is not trained, is not a lawyer. He is representing himself directly. It is typical in these cases that arbitrators will try to help that party to some extent. And if you are sitting on the other side, you’re not happy. Because, you would say, why is the arbitrator behaving like that? But put yourself in the shoes of the arbitrator. I think that’s not bad. You have to keep calming your client and say, be calm, that does not mean that the arbitrator will side with the weaker party; it’s just what he or she needs to do in order to run the proceedings in a fair way. So, as I said, compassion as you put it and pity as I put it, it’s all part of the game and it’s something arbitrators are aware of and also the parties should be aware of that too. Speaker II - You have to be aware of it also, as counsel. Even if you go with the most hardened, Anglo-American trained, trial attorney; if you go really to town on the witness to the extent that the tribunal starts to feel empathy with the witness. The tribunal then starts to feel that you are being unfair, you’ve lost the game. The other point, is that one has to careful with the relationships. Because certainly there is a lot of fuss made obviously, understandably, about barristers and that they appear in front of each other all the time and this is very unusual and very disconcerting. But, I have to say, I always get a much tougher time if I am in front of a colleague from my chambers, whether it’s a judge or an arbitrator than from anybody else because they bend-over backwards to show they are being tough with me. So, I get no lee-way, I get tough questions all the time. These relationships, they are very complicated things. …
