Although the principles which constitute conventional wisdom are intended to be universal and are theoretically esteemed for their acceptability, international arbitration practice shows that despite a general consensus as to the formulation of certain principles, the perception of the way in which they should apply is likely to be influenced by the background of the party representatives or arbitrators.

Legal backgrounds

The legal background of an arbitrator or counsel often influences their perception of the best way in which to conduct arbitral proceedings and apply the substantive law.

According to Pierre Tercier, justice is not dispensed in the same way globally. Thus, the preferred way of applying the law in one legal system may be inconceivable in another. This implies that when faced with the inherent diverse backgrounds of parties and their representatives in international arbitration, arbitrators should be ready to understand and apply rules with which they are not necessarily familiar. This also implies that counsel should be ready to adapt to a different way of approaching the legal proceedings from the other party’s side.

For instance, while the principle of equality of arms is a conventional wisdom recognised in both civil and common legal traditions, the application of this principle by counsel in document production differs significantly between both traditions. The common law adversarial approach requires the disclosure of both supportive and adverse documents and ensures that “cards are face up on the table” in order to achieve equality of arms. By contrast, in the civil law inquisitorial approach, document production is initiated by the disputing party and limited to the discharge of each party’s burden of proof. Therefore, each party must formulate its case based on the evidence in its possession and document requests are admissible in only the most exceptional circumstances.

Cultural or industry backgrounds

At the 2002 International Council for Commercial Arbitration Congress, Professor of Law Shari Diamond described the three main psychological influences on an arbitrator’s decision making:

Decision-makers are influenced by their cultural backgrounds, their prior experiences and their personal associations in formulating their understanding of and judging the behaviour they must consider in reaching their decisions.

While legal tradition is essential to an arbitrator’s or lawyer’s perception of fairness, due to a developed habit to apply rules in a certain way, arbitrators’ cultural or professional background can also influence their decision making and perception of the best application of conventional wisdoms (eg, their perception of a fair procedure).

Justice Holmes explained how the legal culture in which an arbitrator is schooled can have a significant impact on not only the procedures that the arbitrator adopts, but also how they interpret the applicable legal principles:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Numerous studies have been conducted on the influence that arbitrators’ industry backgrounds have on arbitration outcomes, including the securities and construction industries. Some of these studies concluded that specific industry experience affects arbitrators’ decisions.

In light of this, ideas have been developed as to how to minimise the impact of cultural differences or personal experience in order to ensure a more harmonised approach to the application of conventional wisdom. According to Edna Sussman:

while arbitrators are often selected because of their backgrounds and experience, arbitrators should take care to assess the case that is actually presented before them, and to consciously endeavor to overcome any affinity they might have for any of the parties as a result of their background. Counsel should take care in the selection of arbitrators to appoint arbitrators accustomed to assessing witness from different cultural backgrounds and who have a reputation for independence and impartiality in their decision-making.

Comment

Numerous suggestions have been formulated to improve arbitral procedures and ensure the best application of and respect for due process. For instance, by thoroughly reviewing the evidentiary record and focusing on the factual evidence submitted by both parties, arbitrators can avoid being influenced by internal bias.

Endnotes

(1) This is the second article in a series on conventional wisdom in arbitration proceedings. For the first article in the series, please see “Conventional wisdom in arbitral proceedings“.

(2) Gordon Blanke, “Document Production in International Arbitration: From Civil and Common Law Dichotomy to Operational Synergies” 83(4) Arbitration (2017), p 424.

(3) Ibid.

(4) Shari Diamond, “Psychological Aspects of Dispute Resolution: Issue for International Arbitration” in International Commercial Arbitration: Important Contemporary Questions (International Council for Commercial Arbitration Congress Series 11, London 2002 (2003)).

(5) Oliver Wendell Holmes Jr, The Common Law (Dover Publishing 1991).

(6) Stephen J Choi, Jill E Fisch and AC Pritchard, “The Influence of Arbitrator Background and Representation on Arbitration Outcomes”, Penn Law: Legal Scholarship repository (2014).

(7) George Ossman III, Mehmet Emre Bayraktar and Qingbin Cu, “Consistency and Reliability of Construction Arbitration Decisions: Empirical Study”, 26(2) Journal of Management in Engineering (2010).

(8) See Stephen J Choi, Jill E Fisch and AC Pritchard “The Influence of Arbitrator Background and Representation on Arbitration Outcomes”, Penn Law: Legal Scholarship repository (2014); Edna Sussman, “Chapter 3: Biases and heuristics in Arbitrator Decision-Making: Reflections on How to Counteract or Play to Them” in Tony Cole ed The Roles of Psychology in International Arbitration, (Kluwer Law International 2017) p 40.

(9) Edna Sussman, “Chapter 3: Biases and heuristics in Arbitrator Decision-Making: Reflections on How to Counteract or Play to Them” in Tony Cole ed The Roles of Psychology in International Arbitration, (Kluwer Law International 2017), p 65.

(10) Edna Sussman advances that reviewing the evidentiary record before preparing the award, and reviewing evidence in favour of what has preliminarily been assessed to be the losing side, can be a remedy to the expression of bias. Id at pp 67-68.

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