On 10 May 2018, the Asia-Pacific Forum for International Arbitration (AFIA), together with the ICC Young Arbitrators Forum (ICC-YAF), held an international arbitration symposium titled “Top Tips for your 1st Arbitrator Appointment”. The symposium, which took place in Singapore, attracted many young practitioners who were keen to obtain their first arbitrator appointments. As a hard-nosed sceptic, I had approached the event with more than a healthy dose of pessimism on the usefulness of the tips that would be discussed, but I was left pleasantly surprised at how enjoyable and useful the symposium turned out to be.
Key Note Speech
The symposium began with a keynote speech by Christopher Thomas QC, the Head of International Dispute Resolution (Practice Skills) at the National University of Singapore Centre for International Law, who provided four primers for the young arbitration practitioner eager to obtain his first arbitrator appointment:
(i) when is it appropriate to accept an appointment;
(ii) how to get an appointment;
(iii) when to say “no” to an appointment; and
(iv) how to prepare for the arbitration.
When is it appropriate to accept an appointment?
Mr. Thomas began by cautioning that eager young practitioners keen to take on arbitrator appointments should not be too “eager”, and in that eagerness, accept arbitrator appointments in areas of law or subject-matters with which they lack experience.
He also noted that the procedural aspects of running an arbitration (as opposed to applicable substantive law points) often prove to be most challenging as the solutions are not easily found in books, but are instead acquired from experience. Procedural disputes often require arbitrators to make on-the-spot decisions, for better or for worse, which is where experience comes to aid.
The advice to not take any arbitrator appointment naturally seemed counter-intuitive to younger members of the audience who were hungry to catch their first big break. On deeper thought, however, that proved to be sound advice to me. While beggars cannot be choosers, taking on appointments in areas in which the young practitioner has little to no experience could have potentially deleterious effects on his/her reputation should the arbitration be (as a result of that inexperience) ill-decided or improperly conducted. This would stymie and stifle any future arbitrator aspirations in the cradle. Young practitioners must therefore evaluate the pros and cons before accepting any appointment.
This may seem like a catch-22 situation and a barrier to entry, where young practitioners who are trying to get the necessary experience in order to be prepared for arbitrator appointments are not able to obtain the experience because their lack of experience hinders such appointments.
How to get an appointment
Mr Thomas then shared his own experience of how he received his first arbitrator appointment. He described it as one of “serendipity”, where he had not actively sought arbitrator appointments but had received them because of his career as counsel. He described how, in an arbitration chaired by a a leading arbitrator, he had cross-examined a witness with determinative effect in the case. He surmised that this must have left something of a positive impression on the chairman, who some two years later contacted Mr. Thomas with a potential arbitrator appointment. That first appointment led to many others. In this respect, he did not plan to become an arbitrator; the practice just happened to develop.
He contrasted his own experience with that of a colleague, who had taken a more focused approach to obtaining arbitrator appointments – by reading a doctorate in arbitration and taking on various types of arbitration matter as counsel to gain experience. All of that, coupled with the fact that the said colleague was multi-lingual, made him a strong candidate for potential arbitrator appointments.
While Mr Thomas and his colleague took different routes to obtain their first arbitrator appointments, both routes were premised on the potential appointee’s competence in his/her work. Mr Thomas reiterated that the best advertisement takes the form of the piece of work which leaves your desk. Although this may appear counter-intuitive owing to the confidentiality of international arbitrations, it is paramount for young practitioners to focus on giving their best in their work, instead of constantly chasing appointments or conducting a publicity blitz.
When to say “no” to arbitrator appointments
The next piece of advice concerned ethical quandaries which a young practitioner may face in the course of obtaining their first arbitrator appointment. Red flags for concern would usually appear during interviews by counsel for potential appointments. These may come in the form of questions asking for substantive views on certain cases, instead of merely logistical questions such as availability or conflicts check. The young practitioner would be wise to reject such appointments because of the ethical implications which may shadow them.
How to prepare for the arbitration
Apart from reading up on the material and thoroughly preparing for the arbitration in advance, Mr Thomas also advised that young arbitrators should not force the pace of the arbitration. Other tips were to not leave the drafting of the award to the last minute, but to work on it continuously throughout the arbitration (as that facilitates a better understanding of the parties’ arguments), and to also prepare a chronology containing key dates and events, which would assist in narrowing down what is truly in dispute between the parties.
Another point stressed by Mr Thomas was how one should, as a party-appointed arbitrator, show respect and deference to the Chairperson and refrain from appearing to be partial to one’s appointing party. One must be open-minded to the various viewpoints and seek to get along and to cooperate with the other arbitrators.
The keynote speech was followed by a panel discussion and Q&A session featuring Ms Elodie Dulac (Partner at King & Spalding), Ms Katie Chung (Of Counsel at Norton Rose Fulbright), Mr Abhinav Bhushan (Regional Director South and East Asia, ICC, International Court of Arbitration), Mr Benson Lim (Associate at Hogan Lovells), as well as the moderator Ms Charis Tan (Director at DWF LLP).
The panel members shared their own experiences as first-time arbitrators and what emerged was the common experience of receiving their first appointments at 8-10 years of legal experience (which panel members generally agreed was the appropriate seniority to receive first appointments).
A panel member noted that it was difficult to say how many years of experience one would need before being ready for an arbitration, since there would always be gaps in one’s knowledge because of the wide-ranging issues which come up in arbitration, but suffice to say, young practitioners should focus on gaining experience and to produce good quality work until they receive their first appointment.
One panel member drew attention to the importance of obtaining qualifications such as Chartered Institute of Arbitrators or Singapore Institute of Arbitrators fellowships to increase the chances of their appointment, while another highlighted the benefit of joining young arbitration groups such as AFIA or ICC-YAF. All panel members agreed that tribunal secretary experience is very valuable to the young practitioner because of the opportunity to observe different arbitrators conduct arbitrations and their decision-making process.
There was also discussion about the advantages of appointing younger practitioners over more experienced arbitrators. One member of the audience felt that younger practitioners would be more enthusiastic and industrious in arbitrating smaller disputes compared to more experienced arbitrators who may find such cases to be not worth their while.
I posed a question to the panel on the issue of whether a young arbitrator in a tribunal with more experienced arbitrators might feel intimidated into adopting the views of the more experienced arbitrators and be less likely to voice out their own opinions. Members of the panel generally felt that the benefits of sitting with experienced arbitrators (such as receiving guidance on various issues that may pop up in an arbitration) outweighed the potential detriment of being possibly influenced by more experienced arbitrators.
The panel members also touched on the practical aspects of being an arbitrator, with one panel member sharing that arbitrators should tailor the arbitration according to the needs and requirements of the parties. This may entail having a less cumbersome procedural order for expedited arbitrations. In contrast, a more detailed procedural order would be desirable for an arbitration where the stakes are much higher. In response to a question about conducting an arbitration for the first time, the panel members suggested looking to the arbitral institutions for support. For example, it is a little known fact that the ICC provides sample model procedural orders and terms of references which will be helpful for the first-time arbitrator.
The symposium was well-organised and the opportunity to hear from an experienced arbitrator, such as the likes of Mr Thomas, and younger arbitrators on the panel gave a balanced, helpful, and informative session.