Tuesday, August 30, 2011
Thoughts on Culture and Psychological Dynamics in Int'l Arbitration
I was surprised to read in chapter 1 that many lawyers do not study their arbitrators before appearing before them. Perhaps the scientific studies proposed in Chapter 4 are too dense for lawyers to conduct, but the least an attorney could do is research the basic biography of their arbitrator, or at least read a little on the legal culture of the arbitrator's nationality. The lack of preparation that many attorneys put into this process astonishes me because it is a practice many attorneys conduct in the United States, at least when they're about to appear before a judge. Furthermore, researching some basic facts about an arbitrator and her culture seems necessary to conduct any research about the arbitrator's internal road maps. It seems that any advocate who does not research her arbitrator is at a great disadvantage and does a great disservice to her client.
Subscribe to:
Post Comments (Atom)
8 comments:
Interestingly enough, its not as easy as you might think to research an arbitrator, although the internet has helped tremendously. We'll talk some about arbitrator selection in class.
In the United States, I know that it is common practice to research a bit about the judge you are going to appear in front of, at least by looking through his/her case history and some basic biographical information. However, although I agree that it would be irresponsible for an attorney to not do basic research on an arbitrator (at least finding out the nationality and the educational history), I think the reading points out that there is no database of prior decisions because they are not used as precedent. Therefore, it seems that it would be close to impossible to do sufficient research to help you understand what you need to appeal to in a particular arbitrator for him/her to decide in your favor, particularly in a case where the arbitrator has made up his/her mind from the outset.
I'd have to agree that there is probably more into researching the arbitrator than the text seems to indicate. Although, ideally, it shouldn't matter who the arbitrator is as long as they are qualified to arbitrate that particular case. Ideally.
Researching an arbitrator can be difficult because more often than not their decision will be private and therefore closed to public scrutiny. However, as many arbitrators are ex-lawyers or prominent figures in their domain it is possible to form an educated guess on what their view might be on a certain subject.
I am definitely interested in learning about how to research arbitrators and their decisions. it was my understanding that arbitration decisions had to be submitted to a court for it to be binding, which made me think a lot of them were in the public domain, but I probably have this whole concept wrong. I'm glad we are all discussing this point ... definitely think it's important.
It is interesting to learn that in the US so much work goes into tailoring advocacy to the judge who will be hearing your case. I could be wrong, but I believe that in England you don't find out who the judge will be until very late in the day.
I realize I'm commenting post-class but I found it interesting that reputations of arbitrators are largely spread by word of mouth. It seems like an antiquated method for an otherwise modern manner of dispute resolution.
Yeah, I'm also playing catch-up, since I missed the first class! Sorry for that everyone.
I've read that international arbitration is a small world. From what I'm seeing with article cites and academic program listings, that seems to be true (Doak Bishop, Loukas Mistelis, Jan Paulsson, Rau, are mentioned in a couple of places).
As international arbitration continues to expand, how long will word-of-mouth continue to function as ad hoc background checks?
And on the internet - ever google yourself? Sometimes you can find out quite a bit. Check out the Wall Street Journal's series What They Know if you want to be made paranoid about your online activity.
Post a Comment