Stating the Obvious and Connectivity to Self

Abstract

TAKING THINGS FOR GRANTED VERSUS MANAGING REFLEXES IN A MIX OF LEGAL TRADITIONS 

Numerous are the surprised, and even suspicious, reactions to an arbitrator asking about the meaning that counsel ascribe to a commonly used concept in international arbitration. Does the arbitrator not know what “cut-off date” means? Or understand that s(he) obviously can rule on the parties’ claims in any order that s(he) feels is appropriate or convenient? How about the arbitrator’s ability to “massage” the claim if it does not lend itself to a ruling or award as written? And everyone of course knows without asking that direct examination is a “no-no” beyond warm-up, and no one of course can call his or her own witnesses to be heard or cross-examined beyond the four corners of a witness statement.
Everyone “in the know” knows about these matters, and it is not worth spending time on them, let alone writing about them, in a procedural order.
Whatever the merit of these rather trivial examples, it is my view that too much is often taken for granted by too many at the beginning of an arbitration. And too little time is usually allocated at the outset to explore what exactly participants read into the quite standard documentation and the standard terminology, homegrown somewhere and then imported into new settings.