Alexis Mourre
Mourre, Chessa, Le Lay Arbitration, Paris
amourre@mcl-arbitration.com

A just, valid, understandable and enforceable award is what the parties bargain for in agreeing to submit their dispute to arbitration. How is this desired outcome reached was the theme of the Bogota 16th Annual International Arbitration Day on “Making the award: need we rethink the process?”. This was the first ever IBA Arbitration Day in Colombia, and the first in Latin America since the 7th International Arbitration Day in São Paulo in 2004. With the active support of the Bogota Chamber of Commerce, the event was one of the best attended IBA arbitration days.

Can there be a good award without a proper and well-structured deliberation process? While the arbitral procedure itself has received considerable attention in the past three decades with the development of a significant body of soft law, the deliberation process remains a much less formal process. The very concept of ‘deliberations’ remains largely elusive. Philippe Fouchard used to say that arbitrators start deliberating all along the arbitration, in occasion of informal conversations before, during and after the hearing and in many other ways. Deliberations also take place not only for the making of the final award, but for the adoption of any other decision, including procedural decisions and provisional orders. Still, procedural orders and terms of reference generally do not contain provisions informing the parties of how and when they intend to discuss their decisions. Rather, the overriding principle of the secrecy of deliberations will raise an iron curtain between the parties and internal tribunal’s communications. But should that rule be absolute? Should a minimum level of transparency not be introduced into the deliberative process?

 

The first panel of the day considered the question of whether deliberations have not become an opaque and disorganised process. The discussion, led by Laurent Levy and Carole Malinvaud, allowed José Ignacio Astigarraga, John Beechey, Gilberto Giusti and Essam Al Tamimi to exchange views on questions such as whether there should be a principle of arbitrator equality in the deliberation process, how to deal with uncooperative arbitrators, and what should the presiding arbitrator do in presence of arbitrators refusing to deliberate or even attempting to jeopardize the process. The panel also discussed whether the tribunal should inform the parties of the way the tribunal intends to structure the deliberative process or the matters that the tribunal intends to discuss. Finally, the panel considered what role should be reserved to arbitral secretaries in the process; should they be allowed to prepare working notes for the tribunal, to draft decisions trees, to attend deliberations meetings, to intervene in that occasion and to draft minutes or other conclusive notes?

These matters directly led the conference to discuss the consequences of a flawed deliberation. To what extent will that affect the quality or validity of the award? Surely, an absence of deliberations may lead to an annulment. But what about an imperfect or untimely deliberation? Should such flaws affect the validity of the award? And how can they be controlled in view of the privileged nature of information pertaining to the deliberations? The second panel, led by Horacio Grigera Naon and Sally Harpole and composed by Julie Bedard, Dominique Brown-Berset, Gonzalo Flores and Aloke Ray, started by considering the potentially negative consequences of deliberations taking place too long after the hearing or the post-hearing briefs and the need to reserve time as soon as possible — and possibly right after the hearing — for a first exchange within the tribunal. The difficult question of whether and to what extent the Tribunal should re-open the debates when a question arises in deliberations that was not properly briefed by the parties, and the risks that comes with doing or not doing that, was also discussed.

Although in some instances the parties may be able to agree that an award will not be reasoned, the general principle is that the tribunal needs to provide reasons for its decisions. Deliberations should therefore not only serve to adopt an outcome, but also to agree on the intellectual path to reach that outcome. The third panel, under the leadership of our late friend Guillermo Aguilar-Alvarez and Yves Derains with Nigel Blackaby, Michael Lee, Suzanna Blades and Fernando Mantilla-Serrano, discussed how the deliberative process should be structured so as to allow a proper exchange between the members on the reasons to be given to the award. There are also different approaches, depending on legal cultural backgrounds, as to whether the tribunal should discuss the entirety of the parties’ arguments even if the tribunal finds them to be immaterial to the outcome. The panel also engaged into a discussion on the length of the award, a question that is especially sensitive in Latin America, where tribunals sometimes tend to produce overly long decisions burdened by long academic discussions and obiter dicta. Should there, in this respect, be a difference in the approach of commercial and investment tribunals? Does it make a difference that the award deals with matters of public interest under public international law? And should the fact that the award will be published make a difference? The publication of awards is a growing trend and it enhances the much desired transparency of the arbitral process, but does it have the undesired effect of encouraging self-serving developments or discouraging decisions that arbitrators may see as prejudicing future appointments? Finally, are they not ways of reducing the size of the award by limiting or suppressing the procedural recitation of the procedure or the long reproduction of the parties’ arguments?

Finally, the question of dissents gave rise to a vivid and fascinating debate. Of course, an ideal deliberation will lead to a unanimous decision of the tribunal, but in some instances one of the arbitrators will disagree, and it may even happen that the three members each have different views on the outcome. These disagreements may bear on the outcome, or on all or part of the reasoning adopted to reach it, which may lead one or more of the arbitrators to make a dissenting opinion, or a separate or concurring opinion. The last panel, moderated by Bernardo Cremades and composed by Stanimir Alexandrov, Mark Baker, William Rowley and Eduardo Silva Romero, discussed the extent to which the majority should encourage unanimity, and whether that should come at the price of a compromise on the allocation of costs or even on the decisions on the merits. That raised the broader question of whether the fact that dissents are in the vast majority of cases signed by the arbitrator appointed by the succumbing party militate in favour of an appointment by institutions of all tribunal members, and whether dissents should in some way be regulated.

The closing remarks were skilfully made, according to the IBA tradition, by the incumbent Arbitration Committee Chair Eduardo Zuleta, who was also hosting the conference in his home jurisdiction.