PDF OF TITLE PAGE AND T.O.C.

TITLE PAGE/TOC/INTRODUCTION WHY THIS BOOK WAS WRITTEN AND FOR WHOM IT IS INTENDED

CHAPTER ONE 

INTERNAL CONFLICTS AMONG ARBITRATORS

I. Misconduct by an arbitrator in his/her relationships with a co-arbitrator

A. General issues: to whom do arbitrators owe  their duties?

B. Violation by a co-arbitrator of the duty of independence and impartiality

1. A co-arbitrator having an undisclosed conflict of interest

a) With one of the parties or their counsel

b)  Regarding relations among arbitrators

2. A co-arbitrator making improper ex parte communications

a) Ex parte communications in general

b) Difficulty of obtaining hard evidence of ex parte communications by a co-arbitrator: some anecdotes

C. Violation by a co-arbitrator of the duty of confidentiality

D. Violation by a co-arbitrator of the duty of diligence

II. Remedies available to the innocent arbitrator in case of misconduct by a co-arbitrator

A. Non-traumatic remedies  

B. Remedies contemplated by various Codes of Ethics: no “teeth”

C. Remedies available under institutional arbitration rules: possible revocation of the offending arbitrator

D. Exclusion of the offending arbitrator from the decision-making process: the truncated tribunal

E. Remedies available under national legislations

III. Conclusions on internal conflicts among arbitrators

CHAPTER TWO 

THE NEED FOR CONTINUED COOPERATION AMONG ARBITRATORS

I. Collegiality of arbitrators despite possible differences in their respective roles

II. Deliberation as a process which extends throughout the duration of the arbitration proceedings

A. During the process of appointment of the President

B. Prior to and during the Case Management Conference

C. During the phase of submission by the parties of their briefings

D. Before and during the course of the Evidentiary Hearing

E. After the Evidentiary Hearing and before the Deliberation Meeting in its strict sense

F. During the Deliberation Meeting in its strict sense

G. “Split-the-baby” decisions

H. During the process of drafting the award

I. Majority decisions and dissent of one arbitrator

III.    Conclusions on cooperation among arbitrators

CONCLUSION

THE PRAYER OF THE ARBITRATOR

Ugo Draetta is Past Professor of International Law at the Catholic University of Milan, Italy. He received his PhD in International Law (1968) and graduated from the Academy of American and International Law, at the International and Comparative Law Center, University of Texas at Dallas (1976). In 2005 he taught courses at The Hague Academy of International Law.  
During his professional experience he has held the position of Vice-President and Senior Counsel—International, of General Electric Co., USA (1987-1999). He is a member of the Board of Directors of major Italian companies.
From 2000 he started his independent arbitration practice. He has been involved in about 60 arbitration proceedings (ICC, UNCITRAL, Milan, Vienna, Dubai and Madrid international arbitration chambers, ad hoc arbitrations) as President, sole arbitrator or co-arbitrator. His areas of expertise include international law; lex mercatoria; EU law; antitrust law; conflicts of laws and procedure; construction contracts; agreements for the sale of goods; merger and acquisition agreements; shareholders’ and joint venture agreements; R&D agreements; distribution agreements.
Ugo Draetta is member of the ICC Institute of World Business Law; the ICC Commission on Arbitration and ADR; the Arbitration Chamber of the Italian Anti-Corruption Authority; the Club of Arbitrators of the Milan Arbitration Chamber; the Scientific Committee of the Italian Arbitration Association (AIA). He is listed as Arbitrator with the Vienna International Arbitration Center (VIAC), the Dubai International Arbitration Center (DIAC), and the Kuala Lumpur Regional Centre for Arbitration (KLRCA). He is honorary member and member of the General Council of AIGI (Italian Association of Company Counsels). 
He is co-founder and co-editor of the review “Diritto del Commercio Internazionale” as well as member of the Board of editors of the Revue de droit des affaires internationales/ International Business Law Journal, published by Sweet & Maxwell and Corporate Counsel Advisory Editor of the European International Arbitration Review, published by JurisNet. 
He is author of many publications in the fields of arbitration, international law, industrial law, international trade law, EU law, including the books Behind the Scenes in International Arbitration, JurisNet, Huntington, New York, 2011, and Counsel as Client’s First Enemy in Arbitration?, JurisNet, Huntington, New York, 2014.

 

 “Ugo Draetta’s book fills a gap in the international arbitration literature. It opens the ‘black box’ of the complex and largely unexplored system of relationships among arbitrators, highlighting risks and opportunities of a collegial tribunal and, more importantly, identifying existing tools and practical solutions to defuse potential problems. The text reveals the author’s huge experience and know-how, but I am sure it will make useful reading for experienced and unsophisticated arbitrators alike.” – Andrea Carlevaris, Secretary General of the ICC International Court of Arbitration

“Another highly readable and thought-provoking study by Ugo Draetta on a vital but oft-neglected topic:  the duties which arbitrators owe to each other when sitting together to decide a case.  Should be on the reading list for every arbitrator training course.” – Rusty Park, Professor of Law, Boston University – President, London Court of International Arbitration 

¨Dr Draetta’s new book on the relationship between arbitrators could not be more timely. The book puts one of the problems of international arbitration today into useful and illuminating context. Dr Draetta’s comments and conclusions deserve to be read by all who want to understand modern international arbitration. His astute analysis clarifies many of today’s critical issues in international arbitration.¨  – Prof. Dr Kaj Hober, Professor of international investment and trade law, Uppsala University; Chairman of the Board, SCC Institute, Stockholm Chamber of Commerce

“And now the Trilogy is completed on what unfortunately may happen on the scene and behind the scenes of an arbitration ‘play,’ and how it can be avoided. With the same intelligence and straightforward language, Ugo Draetta focuses this time on the conflicts arising within a panel when arbitrators ignore their reciprocal duties. And Ugo prays for triads…”                     - Antonias Dimolitsa, International Arbitrator, Vice-chair ICC Institute of World Business Law

“In his book, Ugo Draetta has described a very delicate issue – such as the relationships among the arbitrators – with a mix of realism, experience and competence.  The different dynamics illustrated reflect the ‘real life’ of arbitration, and the remedies proposed may well play as useful guidance and source of inspiration for a new generation of arbitrators.” – Stefano Azzali, Secretary General, Milan Chamber of Arbitration

“Ugo Draetta’s outspokenness is not motivated by a desire to shock or impress, but a generous impulse to make us think about the qualities of behavior essential to the arbitral function which cannot be identified by codes or metrics — only by experience.” – Jan Paulsson, Three Crowns LLP