We describe the ways in which parties can help ease the burden of writing an arbitral award for arbitrators – making the process quicker, and hopefully earning the sympathy of the tribunal at the same time.
The Benefits Of Helping Out
The quality of arbitral decision-making improves through the process of writing a fully reasoned award: so suggested Professor Shari Seidman Diamond at the recent Centenary Conference of the Chartered Institute of Arbitrators. This is true, in our experience. The effort of award-writing requires a tribunal to analyse all the issues and arguments carefully, and avoid falling back on assumptions. In Daniel Kahneman’s terms, it compels the tribunal to “think slow” rather than “think fast”.1
There are good reasons, however, for parties to try to ease the award-writing burden for arbitrators. First, this speeds up the release of the award (parties often complain of delay in receiving the award). Secondly, as Robert Cialdini explained in his classic book on the psychology of persuasion,2 the desire to reciprocate is a powerful influencer. The more helpful a party is, the more inclined a tribunal may be to look favourably on it. Being helpful will not make a bad argument succeed; but where a party has a reasonable case, helping may encourage the tribunal to view it in a more sympathetic light.
Structure Of An award
To understand how you can help, you must first know how an award is constructed. Typically, there are three main parts:
- overview of the arbitration: here the tribunal sets out what has happened in the arbitration. This demonstrates to a court at a later date (at the enforcement stage, or if there is a challenge to the award) that the procedure has run properly;
- overview of the parties’ arguments: this shows that the tribunal has understood the issues in the case, and has taken into account what each party has said about them; and
- the tribunal’s analysis: this is the main part of the award, in which the tribunal weighs up the arguments and the evidence, and comes to a conclusion.
It is in the parties’ interests for the tribunal to focus on the third part of the award rather than the first two, and for the task in the third part to be made as straightforward as possible.
Ways To Help
1. Summarise The Arbitration
It is best practice for arbitrators to start drafting the first part of the award (the overview of the arbitration) at the beginning of the case, and add to it as the matter proceeds. However, it is easy for a tribunal to leave this until the end. When the tribunal has to draft this section at the end of a case, its task is made simpler if a party has provided a summary. You can do this by giving the tribunal a written chronology, setting out everything that has happened in the arbitration.
2. Use A Clear List Of Issues
An important part of the second section of the award involves identifying the key issues in the dispute. The tribunal may have asked the parties to submit a list of issues early in the timetable, or it may have prepared a list itself. If it has not done so, you can do this yourself (agreed with the other side, if possible). Such a list must accurately summarise the issues.
3. Follow Your List
When drafting the award, the tribunal will need to reread your written submissions. In order to guide the tribunal through these, follow the list of issues in the structure of your document. In particular, use headings that match the list of issues as closely as possible. This has the added benefit of serving as a checklist so you know you have covered everything.
4. Tabulate The Issues
The tribunal will have to review the parties’ arguments spread across a number of documents. So that the tribunal takes every part into account, provide a table with page references showing where arguments from both sides can be found on each issue.
5. Organise the transcript
Transcribers index the written transcript of a hearing by keyword. This has some use, but what is better is to show where in the transcript the evidence on a particular issue can be found. Give the tribunal a table setting out, issue by issue, the relevant page and line numbers in the transcript, as well as references to relevant parts of any written closing submissions in which you have commented on the particular evidence.
6. Schedule Time For The Arbitrators
A procedural timetable usually only identifies deadlines for parties. It can also be helpful to include dates in the timetable when the arbitrators will gather (if there are three arbitrators) in order to review the case – both before and after the hearing.3 This helps busy arbitrators focus on the task of producing the award, and gives them space to discuss the issues.
7. Cross-Refer, Don’t Repeat
Parties are often tempted to repeat parts of their written submissions for the sake of emphasis. This can be self-defeating. The tribunal may struggle to focus on particular points when writing the award if these are obscured by passages they have read before. It is better to refer back clearly to the earlier text, and, if you want to highlight certain arguments, do so in oral submissions at the hearing.
8. Use The Language Of The Arbitrators
Using the same language as the arbitrators when you prepare your submissions – e.g. the same defined terms – not only assists the arbitrators in drafting the award, but might also help you gain the sympathy of the tribunal through a “mirroring” effect: psychologists suggest that people look more favourably on others who exhibit the same language and behaviour.4
9. Number Everything
As well as documentary evidence, a tribunal receives a large amount of correspondence and submissions from the parties during the course of an arbitration. It can be difficult to keep track of these, so number everything that you send to the tribunal – not only pleadings but also letters and emails (e.g. “Claimant’s letter number 1”).
10. Index Everything
A common bundle, paginated and indexed, is a valuable tool for a hearing. But sometimes there is no such bundle, and the tribunal uses the papers filed during the course of the arbitration; sometimes additional documents are filed during the hearing which are not in the hearing bundle. What is most important for award-writing, therefore, is a comprehensive consolidated index. At the end of the arbitration, provide the tribunal with an index of everything that has been filed so that they can easily lay their hands on relevant documents.
End Notes:
1 Daniel Kahneman, Thinking, Fast and Slow (Penguin, 2011).
2 Robert Cialdini, Influence: The Psychology of Persuasion (HarperCollins, 2009 (first published in 1984)), chapter 2.
3 This is an idea that has been promoted by Lucy Reed in her 2012 Kaplan Lecture, hence the name “Reed Retreat”.
4 Noah Goldstein, Robert Cialdini and Steve Martin, Yes! 50 Secrets from the Science of Persuasion (Profile Books, 2009), chapter 32.
For further information, please contact:
Ben Giaretta, Partner, Ashurst
ben.giaretta@ashurst.com
Michael Weatherley, Ashurst
michael.weatherley@ashurst.com
