Reacting to a discussion at Vienna Arbitration Days 2016, Lucy Greenwood, Michael McIlwrath and I published an article ‘Puppies or Kittens – How To Better Match Arbitrators to Party Expectations’ calling for better-informed choices in appointing arbitrators.
We analysed the arbitrator selection process, and proposed that the lack of available information on arbitrator’s soft skills and procedural preferences often leaves parties disappointed.
In appointing an arbitrator a party seeks to identify an individual with an approach to procedural issues, case management and handling of evidence and settlement which aligns with the party’s views. While this information is crucial for the arbitrator selection, parties have only traces of knowledge about it. In fact, obtaining this information can be the single most difficult challenge when identifying potential arbitrators.
This leads nominating parties to guess at candidates’ procedural preferences. Parties are forced to rely on two proxies: the arbitrators’ nationality and their legal qualification. For instance, parties assume that a common law attorney would be more susceptible to extensive disclosure than a civil law practitioner.
In some cases that may be so, but there are many situations when that assumption will be proven incorrect. Parties often use inaccurate assumptions as basis for appointments, and many times they do not correspond to how the arbitrator actually conducts the case. This inevitably disappoints the parties expectations, and risks leaving the parties deeply dissatisfied with an overall conduct of process.
Bridging the information gap
My co-authors and I proposed in our ‘Puppies’ article that information about the procedural preferences should be made widely available, and that we should all take active steps to bridge the information gap. We offered a draft questionnaire on procedural preferences that arbitrators could answer, and then make available on individual websites or institutional platforms. A full text of the questionnaire is available here. We made a clear distinction between the procedural preferences (which should be disclosed) and the substantive legal issues (which would not be included in the questionnaire).
In April this year, my co-authors and I took a step further and asked the arbitration community for feedback on this idea. We posted a short survey on Kluwer Arbitration Blog, which was disseminated through Kluwer Arbitration, OGEMID and Arb-Med, and left open for two months. The responses collected were striking. From 141 participants:
- 97.81% think they could serve the interests of their clients better if the procedural preferences and case management skills of the arbitrators were known to the parties in advance;
- 80.15% would be willing to send the questionnaire to the potential arbitrators; and
- 94.33% would be willing to complete a questionnaire as part of the process of being considered for an appointment.
For full results with graphical break-down click here.
Some months after we published the results, a few arbitrators approached us with links to their websites where they included their responses to the proposed questionnaire. We were also informed that at least one international arbitration institution is considering using the Puppies questionnaire for arbitrators on their lists, and publishing their responses as accompanying material with arbitrators profiles.
We started wondering if we are witnessing a real (albeit gradual) change in the nature of arbitrators selection process? Will the information needed to make the right appointments become more readily accessible? And if so, where does that lead us?
Increasing diversity and satisfaction
My co-authors and I anticipate that making more information accessible leads to greater party satisfaction, but also greater diversity of appointments. There is a lot of reluctance of parties to appoint arbitrators who are young or relatively unknown. Parties want to know as much as possible about the conduct of their case, which leads to repeated nominations of ‘familiar’, well-known arbitration names, even when better choices might be available.
This is hardly surprising: people show aversion to uncertain and unknown. Familiar arbitrators (more known/certain) hence appear more attractive than less known/certain candidates – even if they are potentially less appropriate for the case at hand.
Our proposal has a potential to increase how familiar the less experienced arbitrators appear to the parties. This will make it easier for the parties to appoint an arbitrator they have not encountered in the past. Young arbitrators too can take an active role in this, and make themselves more familiar by disclosing their procedural preferences from the outset.
This would bridge the bias against the unknown, which in the world of international arbitration that was for many years dominated by senior Caucasian males, would mean reducing the bias against appointing women arbitrators, young arbitrators, and arbitrators of colour. Certainly a goal worth pursuing!
Written by Ema Vidak Gojkovic.
Ema Vidak Gojkovic is an international disputes associate at Baker & McKenzie in Vienna, focusing on international arbitration. She currently works as an External Lecturer for Mediation and Negotiation at the Faculty of Law, University of Vienna. She is a delegate at the UNCITRAL Working Group II (Arbitration and Conciliation). Ema is an active member of ArbitralWomen, and sits on the Board of ArbitralWomen’s YAWP.