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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
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.
