Behind the Scenes in International Arbitration
Behind the Scenes in International Arbitration reveals what really happens behind the scenes of the large stage of the international arbitration -- a world of its own. Though arbitration has become a big business, its proceedings are not open to the large public, because of their confidential -- and sometimes opaque -- nature. Thus, Ugo Draetta offers his perspective as an insider, outlining some behaviours of the various players in the arbitration stage, which are sometimes irrational, emotional, bizarre or counterproductive.
Drawn from the personal experiences of the author's 30 years in the field, the book is essentially based on a number of real life anecdotes (obviously on a no name basis), some of which will have you laughing out loud. The players identified in the book are (a) the Parties, (b) the outside counsel, (c) the in-house counsel, (d) the arbitrators, and (e) the arbitral institutions. A separate chapter is devoted to each one of these players, ending with a “memo” summarizing the behaviours to be avoided.
Behind the Scenes in International Arbitration is not a legal book, nor a book dealing with “ethics” of the arbitration... As examples, the author considers the "King Solomon" syndrome of many arbitrators, the prima donna attitudes, the loneliness of the sole arbitrator, and compares the number of arbitration cases with the number of shark attacks resultant of available statistics. This book aims to increase the efficiency, seriousness and dignity of arbitration proceedings, to the advantage of those who are presently players or aspire to become players in the arbitration stage.
PDF of Title Page and T.O.C.
INTRODUCTION: WHY THIS BOOK, AND FOR WHOM IT IS INTENDED?
CHAPTER ONE: THE PARTIES
1. The "courage not to arbitrate".
2. The frequent lack of interest of parties in the pending arbitration.
3. The parties and attempts to settle.
4. Memo to the parties to an arbitration.
CHAPTER TWO: COUNSEL FOR THE PARTIES
5. The various ways in which counsel can irritate arbitrators: (a) Unnecessarily aggressive attitudes;
6. ... (b) Presenting too many arguments;
7. ...(c) Presenting excessive amounts of documentation and failing to organize it;
8. ... (d) Inappropriate behavior at the hearings;
9. ... (e) Inappropriate attitude towards the arbitrators.
10. The apparent reluctance to settle.
11. Memo to counsel for the parties.
CHAPTER THREE: IN-HOUSE COUNSEL OF THE PARTIES
12. The players most conspicuous by their absence from the arbitration proceedings.
13. Memo to in-house counsel on their role in an arbitration: (a) Choosing arbitration as a dispute settlement mechanism and drafting the arbitration clause;
14. ... (b) Managing and documenting pre-arbitration attempts at settlement;
15. ... (c) Contributing to the decision to initiate an arbitration;
16. ...(d) Selecting outside counsel and controlling them during the proceedings;
17. ... (e) Selecting the arbitrators in collaboration with outside counsel;
18. ... (f) Determining the arbitration strategy: written submissions, hearings and the role of corporate management;
19. ...(g) Organizing internal resources: claims, documents, witnesses and experts;
20. ... (h) Proactively participating in attempts at settlement.
CHAPTER FOUR: THE ARBITRATORS
21. The various ways in which arbitrators can irritate counsel for the parties: (a) Coming unprepared to the hearings; (b) Conducting internal debates during the hearings; (c) Maintaining arrogant or inappropriate attitudes towards counsel; (d) Believing themselves to be better than counsel; (e) Showing lack of respect for the procedure; (f) Not checking in a timely manner for conflicts of interest; (g) Indulging in the prima donna syndrome.
22. Co-arbitrators in particular.
23. The Chairperson of the Arbitral Tribunal in particular: (a) Availability and preparation;
24. ... (b) The efficient management of the arbitration proceedings.
25. Ways in which the Chairperson can facilitate a settlement between the parties: (a) General remarks;
26. ... (b) Indirectly;
27. ...(c) Directly (by communicating the preliminary opinions of the arbitrators, participating in settlement negotiations, caucusing).
28. The loneliness of the sole arbitrator.
29. Memo to arbitrators.
CHAPTER FIVE: THE DYNAMICS OF DELIBERATION
30. Introduction: deliberation meetings and negotiating techniques.
31. The attitude of the Chairperson.
32. The attitude of the co-arbitrators.
33. The "courage to decide": the King Solomon syndrome and the decision on costs and fees.
CHAPTER SIX: ARBITRAL INSTITUTIONS
34. General remarks.
35. Is there a crisis in administered arbitration?
36. The number of ICC cases (and the number of shark attacks).
37. Some general observations.
38. Panels of arbitrators: Beauty contests?
39. Controlling the time and costs of arbitration.
40. The scrutiny of the draft award and the management of dissenting opinions; whether to publish the award.
41. Memo to arbitral institutions.
Ugo Draetta is Professor of International Law at the Catholic University of Milan, Italy. As an international arbitrator, he has acted in over 50 arbitration proceedings. Mr. Draetta is former Vice President and Senior Counsel -- International -- for General Electric Co. (USA); member of the Scientific Committee of the Italian Arbitration Association; member of the Board of editors of the Revue de droit des affaires internationales/ International Business Law Journal, published by Sweet & Maxwell. For more information see www.ugodraetta.com.
"It is not a book about ethics of arbitration or arbitration law, but a book which happily combines common sense, the psychology of arbitration, the knowledge of the matter and the arbitration process and which unveils aspects which generally are not dealt with in arbitration manuals. The analysis is clear, balanced, correct and not without a vein of humour: it outlines deviations and counterproductive attitudes which should be avoided by all the players in the arbitration process."
-Charles Jarrosson, Professor of Law at the Paris II University, Editor in chief, Revue de l'arbitrage
"Until I read Behind the Scenes in International Arbitration, I never had imagined that a book on arbitration could be a page-turner... Ugo Draetta is generously sharing its experiences in this field by offering us a useful, wise book which can be read with the pleasure normally reserved to good novels."
-Diego P. Fernández Arroyo, Sciences Po Law School, Paris
"This book examines points of view on arbitration that are not very usual in this type of literature, so I sincerely congratulate the author."
-Bernardo Cremades, International Arbitrator
"Knowledge of arbitration is never complete without exploring the backstage, how arbitration works in practice, how different actors, roles and stages interplay. With a distinguished career as arbitrator, academic and counsel (both external and in house), Professor Draetta is in a unique position to transmit such views. In a simple and amusing language, Ugo Draetta guides the reader through a comprehensive practical tour of how international arbitration works, what should be done and what should be avoided. Of incomparable value for those initiating their careers in international arbitration, Behind the Scenes is nevertheless of great help for experienced counsel and arbitrators who more often than expected lose perspective in this always dynamic and evolving field of international arbitration."
-Prof. Dr. Guido Santiago Tawil, arbitrator and counsel, former co-chair IBA Arbitration Committee
"A fascinating journey behind the curtains of international arbitration by one of the most renowned arbitrators and experienced practitioners. Ugo Draetta unveils the hidden dynamics of the relationship between arbitrators, advocates and in house counsels. A reading as pleasant as it is instructive"
-Alexis Mourre
"As has often been noted, much of the practice of domestic and international arbitration cannot be acquired from the many good books and learned treatises on the subject. Rather, it is the actual experiences of those who live the practice who convey it to those fortunate to be near them. It is that sort of "conversation" with listeners that Behind the Scenes captures, with arbitration seen from sides at times domestic, others international, through the eyes of a practitioner who has lived arbitration in-house, as external practitioner, and as an experienced arbitrator, and who is not afraid to express views as to which practices serve parties' interests or work against them. For those interested in international dispute resolution, there are few seats with better inside views, or easier and enjoyable to read."
-Michael McIlwrath, Associate General Counsel, Litigation -- General Electric Co. (USA) -- Oil&Gas
"Draetta's thoughtful and thought provoking recommendations to arbitrators should be obligatory reading before anyone is permitted to arbitrate an international dispute!"
-Juan Fernández-Armesto, Arbitrator
"Ugo Draetta writes with the authority and insight of one who has practiced international arbitration for many, many years. His experience is an invaluable guide not only to readers unfamiliar with international disputes but also to in-house lawyers and perhaps, above all, to specialist arbitration counsel who all too often lack the necessary self awareness to understand how their (mis)conduct of a case is perceived by international arbitrators. Mr Draetta's style is light and full of humour. It conveys the unique enjoyment of practising in this fascinating area of the law."
-Charles Kaplan, Joint Head, Global Arbitration Practice, Herbert Smith LLP
"Once in a very long while a book is written that can be defined as essential --not elective--reading for those who practice arbitration. Behind The Scenes in International Arbitration, by Professor Ugo Draetta, qualifies for that honour.
The publication clearly sets out what happens in the real trenches when establishing arbitral panels -- selecting co-arbitrators and chairs--and when arbitral tribunals and arbitration counsel are conducting arbitrations. Also, the book provides important do's and don'ts for arbitral proceedings. The anecdotal stories add to the reader's education and enjoyment.
It is essential reading for in-house counsel and those who are retained by those counsel, together with the decision-makers."
-Kenneth J Glasner Q C, former Trustee for the British Columbia International Commercial Arbitration Centre (BCICAC)
Ugo Draetta is Professor of International Law at the Catholic University of Milan, Italy. As an international arbitrator, he has acted in over 50 arbitration proceedings. Mr. Draetta is former Vice President and Senior Counsel -- International -- for General Electric Co. (USA); member of the Scientific Committee of the Italian Arbitration Association; member of the Board of editors of the Revue de droit des affaires internationales/ International Business Law Journal, published by Sweet & Maxwell. For more information see www.ugodraetta.com.
"It is not a book about ethics of arbitration or arbitration law, but a book which happily combines common sense, the psychology of arbitration, the knowledge of the matter and the arbitration process and which unveils aspects which generally are not dealt with in arbitration manuals. The analysis is clear, balanced, correct and not without a vein of humour: it outlines deviations and counterproductive attitudes which should be avoided by all the players in the arbitration process."
-Charles Jarrosson, Professor of Law at the Paris II University, Editor in chief, Revue de l'arbitrage
"Until I read Behind the Scenes in International Arbitration, I never had imagined that a book on arbitration could be a page-turner... Ugo Draetta is generously sharing its experiences in this field by offering us a useful, wise book which can be read with the pleasure normally reserved to good novels."
-Diego P. Fernández Arroyo, Sciences Po Law School, Paris
"This book examines points of view on arbitration that are not very usual in this type of literature, so I sincerely congratulate the author."
-Bernardo Cremades, International Arbitrator
"Knowledge of arbitration is never complete without exploring the backstage, how arbitration works in practice, how different actors, roles and stages interplay. With a distinguished career as arbitrator, academic and counsel (both external and in house), Professor Draetta is in a unique position to transmit such views. In a simple and amusing language, Ugo Draetta guides the reader through a comprehensive practical tour of how international arbitration works, what should be done and what should be avoided. Of incomparable value for those initiating their careers in international arbitration, Behind the Scenes is nevertheless of great help for experienced counsel and arbitrators who more often than expected lose perspective in this always dynamic and evolving field of international arbitration."
-Prof. Dr. Guido Santiago Tawil, arbitrator and counsel, former co-chair IBA Arbitration Committee
"A fascinating journey behind the curtains of international arbitration by one of the most renowned arbitrators and experienced practitioners. Ugo Draetta unveils the hidden dynamics of the relationship between arbitrators, advocates and in house counsels. A reading as pleasant as it is instructive"
-Alexis Mourre
"As has often been noted, much of the practice of domestic and international arbitration cannot be acquired from the many good books and learned treatises on the subject. Rather, it is the actual experiences of those who live the practice who convey it to those fortunate to be near them. It is that sort of "conversation" with listeners that Behind the Scenes captures, with arbitration seen from sides at times domestic, others international, through the eyes of a practitioner who has lived arbitration in-house, as external practitioner, and as an experienced arbitrator, and who is not afraid to express views as to which practices serve parties' interests or work against them. For those interested in international dispute resolution, there are few seats with better inside views, or easier and enjoyable to read."
-Michael McIlwrath, Associate General Counsel, Litigation -- General Electric Co. (USA) -- Oil&Gas
"Draetta's thoughtful and thought provoking recommendations to arbitrators should be obligatory reading before anyone is permitted to arbitrate an international dispute!"
-Juan Fernández-Armesto, Arbitrator
"Ugo Draetta writes with the authority and insight of one who has practiced international arbitration for many, many years. His experience is an invaluable guide not only to readers unfamiliar with international disputes but also to in-house lawyers and perhaps, above all, to specialist arbitration counsel who all too often lack the necessary self awareness to understand how their (mis)conduct of a case is perceived by international arbitrators. Mr Draetta's style is light and full of humour. It conveys the unique enjoyment of practising in this fascinating area of the law."
-Charles Kaplan, Joint Head, Global Arbitration Practice, Herbert Smith LLP
"Once in a very long while a book is written that can be defined as essential --not elective--reading for those who practice arbitration. Behind The Scenes in International Arbitration, by Professor Ugo Draetta, qualifies for that honour.
The publication clearly sets out what happens in the real trenches when establishing arbitral panels -- selecting co-arbitrators and chairs--and when arbitral tribunals and arbitration counsel are conducting arbitrations. Also, the book provides important do's and don'ts for arbitral proceedings. The anecdotal stories add to the reader's education and enjoyment.
It is essential reading for in-house counsel and those who are retained by those counsel, together with the decision-makers."
-Kenneth J Glasner Q C, former Trustee for the British Columbia International Commercial Arbitration Centre (BCICAC)
PDF of Title Page and T.O.C.
INTRODUCTION: WHY THIS BOOK, AND FOR WHOM IT IS INTENDED?
CHAPTER ONE: THE PARTIES
1. The "courage not to arbitrate".
2. The frequent lack of interest of parties in the pending arbitration.
3. The parties and attempts to settle.
4. Memo to the parties to an arbitration.
CHAPTER TWO: COUNSEL FOR THE PARTIES
5. The various ways in which counsel can irritate arbitrators: (a) Unnecessarily aggressive attitudes;
6. ... (b) Presenting too many arguments;
7. ...(c) Presenting excessive amounts of documentation and failing to organize it;
8. ... (d) Inappropriate behavior at the hearings;
9. ... (e) Inappropriate attitude towards the arbitrators.
10. The apparent reluctance to settle.
11. Memo to counsel for the parties.
CHAPTER THREE: IN-HOUSE COUNSEL OF THE PARTIES
12. The players most conspicuous by their absence from the arbitration proceedings.
13. Memo to in-house counsel on their role in an arbitration: (a) Choosing arbitration as a dispute settlement mechanism and drafting the arbitration clause;
14. ... (b) Managing and documenting pre-arbitration attempts at settlement;
15. ... (c) Contributing to the decision to initiate an arbitration;
16. ...(d) Selecting outside counsel and controlling them during the proceedings;
17. ... (e) Selecting the arbitrators in collaboration with outside counsel;
18. ... (f) Determining the arbitration strategy: written submissions, hearings and the role of corporate management;
19. ...(g) Organizing internal resources: claims, documents, witnesses and experts;
20. ... (h) Proactively participating in attempts at settlement.
CHAPTER FOUR: THE ARBITRATORS
21. The various ways in which arbitrators can irritate counsel for the parties: (a) Coming unprepared to the hearings; (b) Conducting internal debates during the hearings; (c) Maintaining arrogant or inappropriate attitudes towards counsel; (d) Believing themselves to be better than counsel; (e) Showing lack of respect for the procedure; (f) Not checking in a timely manner for conflicts of interest; (g) Indulging in the prima donna syndrome.
22. Co-arbitrators in particular.
23. The Chairperson of the Arbitral Tribunal in particular: (a) Availability and preparation;
24. ... (b) The efficient management of the arbitration proceedings.
25. Ways in which the Chairperson can facilitate a settlement between the parties: (a) General remarks;
26. ... (b) Indirectly;
27. ...(c) Directly (by communicating the preliminary opinions of the arbitrators, participating in settlement negotiations, caucusing).
28. The loneliness of the sole arbitrator.
29. Memo to arbitrators.
CHAPTER FIVE: THE DYNAMICS OF DELIBERATION
30. Introduction: deliberation meetings and negotiating techniques.
31. The attitude of the Chairperson.
32. The attitude of the co-arbitrators.
33. The "courage to decide": the King Solomon syndrome and the decision on costs and fees.
CHAPTER SIX: ARBITRAL INSTITUTIONS
34. General remarks.
35. Is there a crisis in administered arbitration?
36. The number of ICC cases (and the number of shark attacks).
37. Some general observations.
38. Panels of arbitrators: Beauty contests?
39. Controlling the time and costs of arbitration.
40. The scrutiny of the draft award and the management of dissenting opinions; whether to publish the award.
41. Memo to arbitral institutions.