How Do Tribunals Deliberate? A Guide toEffective Arbitral Decision-Making inInternational Arbitration

Abstract

In any arbitration involving three arbitrators, deliberations between tribunal members are crucial to the outcome of a case. Yet deliberations do not always proceed smoothly. In cross-border disputes, differences in the arbitrators’ cultural background, legal training, personalities and language skills will make it difficult for an ad hoc group of people who are not familiar with each other to work together efficiently. Some party-appointed arbitrators, while ostensibly independent and impartial, still exhibit inappropriate allegiance to the positions advocated by the party that appointed them.Even harmonious deliberations can pose challenges. Disputes submitted to international arbitration are often complex cases where clear answers are few and far between. Conscientious arbitrators may have legitimately different views on the correct outcome of the case. Not infrequently, those views are coloured by various psychological biases that are difficult to rein in.

        The chapter discusses how arbitrators should approach their delicate duty to deliberate with a view to finding potential guidelines for effective arbitral decisionmaking. It focuses on issues such as rapport building, assigning duties among arbitrators, the role of administrative secretaries and tribunal-appointed experts, as well as on how to deal with bargaining, biases, dissents and ‘difficult’ tribunal members during deliberations. While realizing that each arbitration is unique, and what works well with one tribunal may not work well with another, the author suggests that there are some basic propositions which may help arbitrators to deal with the complexities of deliberations, especially in a multicultural setting.