When All Attempts to Settle Fail: Arbitration
| Author | Wayne Clark |
| Pages | 103-125 |
103
CHAP TER 8
When All Attempts to
Settle Fail: Arbitration
Many disputing parties consider arbitration to be the most nat-
ural method of resolving the dierences that they could not settle
themselves.
As a sitting arbitrator, I would welcome it if parties believed arbi-
tration was the most natural method of resolving dierences
they were not able to settle by themselves. If this was indeed the
case, I would be busy for the next twenty years – until I am ninet y,
at least, the age at which I might decide to retire.
But if I said that I believed arbitration was the most natural
method of resolving disputes, I would be lying to myself. What I
would really welcome – and I hope I have made this clear t hrough-
out my book – is for parties to avoid referring their dierences,
their disputes, to arbitration or to the courts. at said, if the par-
ties have explored all other avenues, then, and only then, will I
welcome parties engaging in arbitration for a just result – for the
right decision.
Before discussing the arbitration process – a discussion I will try
to keep reasonably short as readers are likely to be well versed in
arbitration rules and procedures – I wish to introduce t wo interest-
ing arbitration-related features I have encountered recently, both of
which can contribute to settlement of disputes before or during the
arbitration process. ese are the ‘shadow arbitrator’ and ‘third-party
fu n di n g’.
104 CONSTRUCTION DISPUTES
THE SHADOW ARBITRATOR
‘e core concept of a shadow arbitrator is to help a par ty and its
counsel to better unders tand how an arbitral tr ibunal is likely to
perceive and assess a si ngle submission or the entire case.’ *
If a tribunal is to be persuaded, it must understa nd the parties’ pos-
itions – their arguments. If the issues a re understood, the tribunal
will be able to establish the facts and make the ‘right’ decision.
e shadow arbitrator is a term I discovered recently when I came
across the article by Professor Jörg Risse in the Swiss Arbitration
Association’s bulletin that is quoted above. With Professor Risse’s
kind permission, I make reference to his views when examining the
benets of using a shadow arbitrator – the benets that come from
guiding clients and lega l counsel in the drafting of submissions that
will persuade a tribuna l and that may even persuade the parties
tosettle.
I am very much in tune with Professor Risse when it comes to
submissions being clear and concise, easy to understand and writ-
ten in such a way as to hold the reader’s attention. I have tried to
convey this message th roughout my book. Professor Risse discus ses
the important aspects of dra fting submissions in what he cal ls his
‘rst level advice’. As he says in the article, ‘If the arbitral tribu-
nal does not understand a submission, even the best arg uments
are doomed to failure.’ He continues: ‘A similar serious problem
arises when the writing itself is linguistically comprehensible but
so complicated or boring that the arbitrator’s mind loses interest in
reading it.’
Professor Risse believes – and I agree – that the shadow arbitra-
tor, being a practising arbitrator, can provide valuable feedback to,
and guide, clients and legal c ounsel on how best to write submissions
that will be readi ly understood. e shadow arbitrator can identify
which passages of a submission need a specia l eort of concentration
to be understood. Once this problem is identied, the passages c an
* Professor Dr Jörg Risse: ‘e sha dow arbitrator: a mere luxury or re al need?’. Swiss
Arbitration Association (ASA) Bulletin, Volume38 (2/2020, June).
To continue reading
Request your trial