ARBITRATOR INTELLIGENCE

Catherine A. Rogers and Christopher R. Drahozal

Lima, Peru 20 June 2017

ARBITRATOR INTELLIGENCE

MISSION STATEMENT

Arbitrator Intelligence (AI) aims to promote transparency, fairness, and accountability in the selection of international arbitrators, and to facilitate increased diversity in arbitrator appointments.

Challenges in Creating AIQ • Cover all topics relevant in any particular

case

• Anticipate potentially relevant follow up questions

• Provide quality assurance

• BUT MUST: – Maintain confidentiality of parties and cases

– Protect anonymity of responders

– Ensure fairness to arbitrators

– Generate systematic responses

PHASE I: BACKGROUND ABOUT DISPUTE

Nature/Industry: Commercial/Construction

Institution/Rules: CCL/CCL

Legal Seat: Lima

3 Arbitrators: Co-Arbitrator A, Co-Arbitrator B, Arbitral Chairperson C

Date of Request: June 2, 2015

Close of Proceedings: July 1, 2016

Award Rendered: December 12, 2016

Damages awarded: US$50,000,000 for Claimant

Interest Rate: 5%, compounded quarterly

Allocation of Costs: 100% for Claimant

PHASE 2: THE PROCEEDINGS & AWARD Self-assessment as “winner” or “loser”

Arbitrator challenges

Interim measures

Jurisdictional challenges

Corruption

Tribunal secretaries or assistants

Case management and procedural rulings

Information exchange

Conduct of hearings

Questions from arbitrators

The award

Concluding observations

PHASE 2: THE PROCEEDINGS & AWARD Self-assessment as “winner” or “loser”

Arbitrator challenges

Interim measures

Jurisdictional challenges

Corruption

Tribunal secretaries or assistants

Case management and procedural rulings

Information exchange

Conduct of hearings

Questions from arbitrators

The award

Concluding observations

In your professional judgment, which of the following describe(s) your overall reaction to the award (please select all that apply)?

The award presented a balanced evaluation of the parties' arguments

The award was well reasoned

The award was persuasively written

The final disposition was unexpected

The award failed to address all issues raised by the parties

The award contained insufficient reasoning to justify the outcome

The award contained typos or clerical errors

I would feel comfortable having Arbitrator A as the sole arbitrator in a future unrelated case.

⃝ ⃝ ⃝ ⃝ ⃝

Strongly Disagree Neither agree Agree Strongly

Disagree nor disagree agree

AI Reports

Did the opposing party or lawyers engage in conduct during the arbitration that you consider improper, unethical, or intentionally disruptive?

Yes

No

Which of the following best describe(s) the tribunal’s response to the allegedly improper conduct (please select all that apply)?

The tribunal declined to address directly allegations of improper conduct

The tribunal issued general admonitions to dissuade further instances of allegedly improper conduct

The tribunal made specific findings regarding the allegedly improper conduct

The tribunal issued effective procedural rulings to prevent continuation of allegedly improper conduct

The tribunal expressly referenced allegedly improper conduct in making a final determination on the merits or allocation of costs

Improper Conduct by Lawyers (based on hypothetical data—for illustration purposes only)

Tribunal Response to Improper Conduct

In your professional judgment, which of the following describe(s) the questions posed by Arbitrator A during the hearing(s) (please select all that apply)?

No questions were asked

Questions demonstrated familiarity with the record and legal issues

Questions helped clarify factual or legal issues

Questions were fair and respectful

Questions were unduly partisan

Questions were poorly articulated, confusing, or otherwise distracted from the parties’ presentations

Questions demonstrated a lack of fluency with the language of the arbitration

No opinion

Arbitrator Questions (based on hypothetical data—for illustration purposes only)

Time to Issue Award (based on hypothetical data—for illustration purposes only)

AI will…

….help level the playing field

AI will…

…help break the information

bottleneck and enhance diversity

AI will…

…upgrade individual anecdotal

information with objective data

Berwin Leighton Paisner, 2017

What You Can Do to Support AI? • Institutions:

Sign the Cooperation Agreement

Include AI on your website

Encourage law firms and in-house counsel to participate in the AIQ

• Law firms:

– Sign the AI Pact

– Contribute public statements of support

– Contribute awards (if not confidential)

– Preference arbitrators who list on AI

The AI Pact

[T]o to support AI’s goals of fairness, transparency, accountability, and diversity we commit:

To complete AIQs and encourage others to complete AIQs at the end of all arbitrations, subject to any applicable confidentiality requirements or client requisites;

To use our best professional judgment in completing AIQs; and

To support Arbitrator Intelligence in developing and implementing the AIQ and AI Reports.

Muchas Gracias! arbitratorintelligence.org

catherine.rogers@arbitratorintelligence.org

chris.drahozal@arbitratorintelligence.org