Arbitration can be very simple, but it can also be a
voyage to nowhere in the middle of the sea. From the departure to destination, the Tribunal
as collective is expected to steer the board. It shall make decisions,
either procedural or on merits, by deliberation. But how tribunal deliberations
work, particularly in cross-cultural arbitration?
That is certainly a mysterious black-box, because tribunal
deliberations are case specific (it depends on the nature of the disputes),
tribunal specific (it depends on the composition of the tribunal, the
background and profile, and mentality of the presiding arbitrator and its fellows),
and the like.
But there are some best practice for efficient
deliberations: Not consensus, but collegiality is important: each arbitrator
shall actively be involved. Not focusing on the destination, enjoying the
voyage: the facts, the issues, the rational behind the disputes are important.
Not merely the award, an efficient case management, fairness and due process
are also important. Any decision made by the tribunal must not be surprised to
the parties. As parties, you shall assist the tribunal deliberations with facts
and arguments whenever you can.
Finally, as anywhere, be ready to protect yourself
against “toxic arbitrators”. If you feel you are being excluded unfairly from
tribunal deliberations, develop an appropriate strategy to protect yourself.
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