KYIV ARBITRATION DAYS 2016: THINK BIG! The Confidence Complex Closed Lists or Freedom of Choice? Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
The Confidence Complex 2 Confidence in whom? - the arbitrator? - the tribunal? - the institution? - the arbitration process? 2 Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
Closed Lists -vs- Freedom of Choice The best way to avoid incidents of moral hazard is “… to forbid, or at least rigorously police, the practice of unilateral appointments …” “ The only decent solution … is thus that any arbitrator, no matter the size of the tribunal, should be chosen jointly or selected by a neutral body. ” “… a n institutional requirement that appointments be made from a pre-existing list of qualified arbitrators. …such a restricted list may have undeniable advantages…” 3 Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
The call for closed lists Unilateral appointments are wrong : Appointing a nominee to help win the case is wrong No evidence that three heads are better than one Irrational for parties to have more confidence in arbitrator appointed for a special skill ‘Cultural’ appointments exacerbate moral hazard and are unnecessary Unanimity in awards is less likely to be achieved 4 Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
The institutions 5 Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
Freedom of choice • To arbitrate? • To choose system of law? • To choose seat of arbitration? • To choose the/its arbitrator 6 Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
Against closed lists’ arguments • Perpetuates the very moral hazard argued against • Limits breadth of experienced arbitrators rather than broadening it • Wrongly assumes all participants appointments are ‘hired-guns’ • Ignores party autonomy – bedrock of arbitration’s credibility • Wrongly assumes closed list arbitrators will not be biased or poor judges • Wrongly assumes institutions’ knowledge is greater than their sum • Increases likelihood of repeat appointments due to limited pool • Disparaging of less-established institutions • Asserts that unilateral appointments increase dissenting judgements – but are dissenting judgements such a bad thing? 7 Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
Simon Sloane Partner - London E: Simon.Sloane@fieldfisher.com T: +44 (0)20 7861 4934 M: +44 (0)7341 566 854 8 Brussels / Düsseldorf / Hamburg / London / Manchester / Milan / Munich / Paris / Rome / Shanghai / Silicon Valley / fieldfisher.com
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