Navigating stormy waters: how to manage tribunal dynamics as a new arbitrator

When one considers the composition of arbitral tribunals from perspective of a newer, or less experienced, arbitrator, they can be categorised in a number of ways, ranging collaborative and collegiate, through to challenging. At the challenging end of the spectrum, there are various reasons why one might find the experience of working with one’s fellow arbitrators difficult.

It could be as simple as being the odd one out, for example, because you are the only arbitrator from your particular legal tradition (common or civil law), the only person or a particular gender or culture, or the only one working in their second language. Equally, it could be that the other two tribunal members already knew each other or may have sat together previously. Knowing how to assert yourself appropriately, to ensure that your voice is heard in the tribunal but without crossing that invisible line and alienating your fellow arbitrators is a subtle skill.

The next level of on the scale of difficult tribunals is a situation where you must deal with a fellow arbitrator who is, or at least appears to be, partisan. This may be conscious or unconscious on the part of the person in question. In the case of party-appointed arbitrators, there is often an element of seeking to ensure that the party which appointed them is given every opportunity to present its case and, perhaps, seeking to give them the benefit of the doubt in procedural issues. Typically, this is unconscious and innocuous. Equally, there are arbitrators who may be unprepared, not sufficiently focused on the case and their duties or, perhaps, lacking in relevant experience. This may put you and the other tribunal member in the position of having to “carry” your colleague. Dealing with an unresponsive arbitrator has always been bothersome and frustrating, but, in light of the stricter deadlines imposed by arbitral institutions and higher expectations from many parties, this is increasingly burdensome and problematic.

Finally, there is the sinister, but thankfully very rare, situation, where a tribunal member is being positively dishonest, whether by leaking information to a party or third parties, corrupt, positively biased, or otherwise. While this is exceptional, it has happened.

It is generally accepted that intra-tribunal communications should be shared between all members of the tribunal and there should not be a situation where one member is effectively excluded from the working or deliberations of the tribunal. However, these communications, and particularly a tribunal’s deliberations on aspects of the dispute it must resolve, are confidential not only from third parties to the arbitration, but also vis-à-vis the parties and their representatives. There is, therefore, effectively a further layer of confidentiality.

This means that, where a difficult situation arises among the members of the tribunal, the parties and their representatives may be wholly unaware of the issue. Equally, you as a member of the tribunal, may be prohibited from disclosing the situation that has arisen. It is therefore important to fully understand your duties of confidentiality, and how these arise.

The status of intra-tribunal communications and deliberations varies from one arbitration to the next. Some institutional rules expressly provide for such confidentiality (see, for example, article 30(2), London Court of International Arbitration 2020 Rules (LCIA Rules); article 44(2), Swiss Rules of International Arbitration 2021 (Swiss Rules); and rule 34, ICSID Arbitration Rules 2022), but most institutional rules are silent in this respect, including those of the International Chamber of Commerce (ICC), International Centre for Dispute Resolution (ICDR), SCC Arbitration Institute (SCC), Singapore International Arbitration Centre (SIAC), and more, as well as the UNCITRAL Arbitration Rules).

There are also no specific rules on the confidentiality of tribunal deliberations in the UNCITRAL Model Law, on which many jurisdictions base their arbitral law, nor in the arbitration legislation of England and Wales, Hong Kong, Singapore, Sweden, Germany, the US or Brazil. However, in England, the Commercial Court held in P v Q [2017] EWHC 148 that it would be appropriate to order the disclosure of communications among tribunal members (and, in that case, communications with or regarding the tribunal secretary) only in wholly exceptional cases (see Legal update, Disclosure available from arbitrators only in wholly exceptional cases (English Commercial Court)). Very recently, the Singapore International Commercial Court held that arbitrators’ deliberations are protected by an implied duty of confidentiality under Singapore law, based on very strong policy considerations, which it would take a very compelling case to outweigh (see CZT v CZU [2023] SGHC(I) 11, discussed in Legal update, Records of arbitral tribunals’ deliberations protected by implied confidentiality under Singapore law (Singapore International Commercial Court)). In contrast, article 1479 of the French New Code of Civil Procedure expressly confirms this duty of confidentiality.

Confidentiality of deliberations, and any records thereof, may also be implied in jurisdictions such as Switzerland and Australia. Swiss case law and doctrine suggests that there is a strict duty to maintain the confidentiality of deliberations, as reflected in article 44(2) of the Swiss Rules. In Australia, section 15 of the Australia International Arbitration Act 1974 defines “confidential information” broadly to encompass “information that relates to the proceedings”, including “any notes made by the arbitral tribunal of oral evidence or submissions”. Section 23C generally prohibits disclosure of confidential information by the arbitral tribunal, subject to exceptions, including section 23D, which permits the disclosure of confidential information by the arbitral tribunal “if it is necessary for the purposes of the Act, or the Model Law, and the disclosure is no more than reasonable for that purpose”.

When you are faced with a difficult situation, what then, can be done? One of the key purposes of any lex arbitri must be to set, and ensure the good faith discharge of, a tribunal’s primary duty, which is to obtain the fair and efficient resolution of disputes by an independent and impartial tribunal, without unnecessary cost or delay. As a member of a tribunal, it is your duty to uphold these obligations (however they are framed under the law of the seat and with an eye on rendering an award that will ultimately be enforceable, if necessary). As to how one goes about this, there are several possibilities, depending on the nature and gravity of the situation. Whatever course you take, it must be navigated with extreme care.

The first port of call will nearly always be to raise the matter with the other members of the tribunal. Whether this is raised with both of your colleagues, or with only one in the first instance, may depend on the nature of your concerns. For example, if you feel excluded from deliberations or consider that the working methods adopted by the tribunal are not appropriate, this should be raised with the tribunal as a whole. Where by contrast, and exceptionally, you consider one of the other arbitrators is acting dishonestly, for example, it may first be appropriate to raise your concern with the unaffected member of the tribunal.

These conversations will always be difficult, even for experienced arbitrators. If you are the least experienced member of the tribunal, you may feel particularly reluctant to question or challenge your colleagues. However, doing this is a part of the obligations you have assumed to the arbitrating parties. Knowing how to have that conversation in a constructive way, which highlights your concerns and proposes a solution or compromise that may resolve the issues, without appearing to lay the blame on your colleagues is the key.

Where the arbitration is administered by an arbitral institution, their staff will be very experienced in working with tribunal members. If the conversation with your fellow tribunal members does not resolve the situation or, for some reason particular to the specific situation that has arisen, that conversation is not appropriate, you might consider raising the issue with the institution, whether for advice or to ask the institution to intervene.

Most institutions have provisions in their rules for the revocation of an arbitral appointment or confirmation. Examples can be found in article 10.2 of the LCIA Rules 2020, article 10.2 of the SCC Rules 2023, article 20(1), ICDR Rules 2021, article 15(4) of ICC Rules 2021 and regulation 8(2) of the Brazilian Centre of Mediation and Arbitration (CBMA) Rules 2013, among others. These may provide a potential recourse, although this would be a relatively dramatic step and should be considered very carefully.

Most arbitrators will be professionals or lawyers, and subject to a professional code of conduct, with the potential for disciplinary proceedings from the relevant regulatory body. There may be circumstances where reporting the individual to that body becomes necessary, however, these would be rare and exceptional circumstances. The Chartered Institute of Arbitrators (CIArb) is also a disciplinary body and will actively take steps to discipline a member who breaches its code of conduct, which incorporates most, if not all, basic primary duties of any sitting arbitrator. See, for example, the decision in The Chartered Institute of Arbitrators v B, C, D [2019] EWHC 460 (Comm) where the English Commercial Court granted access to documents relating to an arbitrator’s appointment, a hearing within the arbitration on conflict of interest, and subsequent court proceedings seeking the arbitrator’s removal, for the purpose of disciplinary proceedings against him (see Legal update, Court grants non-party access to documents under CPR 5.4C for use in arbitral disciplinary proceedings (English Commercial Court)).

Finally, it is always open to you to resign from the tribunal. However, you must be alert to the consequences of any such resignation. If the matters which led to your resignation are not disclosable, you may, depending on the law of the seat, become personally liable for losses suffered by the parties as result of your resignation. This is something which falls within the scope of article 1142 of the French Civil Code, article 2615 of the Mexican Federal Civil Code, and even section 29 of the English Arbitration Act 1996, which is currently the subject of review by the Law Commission.

What is the moral of this story then? You can learn the ethics of being an arbitrator, as well as how to draft procedural orders and awards with an array of professional courses delivered by a variety of institutions. If you are a lawyer, you will have been taught legal reasoning and research, how to construct arguments and maintain internal consistency, and the fundamentals of natural justice.

The so called “hard skills” of international arbitration can be accessed relatively easily. By contrast, there is little training available in relation to the “soft skills” on how to go about the business of arbitrating. Experience is key. However, one of the challenges to increasing diversity in arbitral appointments (and party appointments, as opposed to those made by arbitral institutions, in particular) is the premium placed, understandably, on experience. Therefore, the imperative of giving opportunities to newer arbitrators, who may have comparatively little hands-on experience, means more focus is needed to develop those soft skills so that they are prepared when an opportunity does arise.

Securing an appointment as an arbitrator is, ultimately, out of your control. However, when you are appointed by a party, you may well have influence over the choice of a tribunal chair. An experienced and fair-minded tribunal chair will make a huge difference and will teach you how to be a great chair yourself.