Do we need more “expert” arbitrators? And if so, in what?

By Epaminontas E. Triantafilou (Of Counsel, Quinn Emanuel, London)

In his mock-college admission essay that has long become the stuff of legend,  Hugh Gallagher demolished the lofty ideal of the Renaissance-man high school graduate who woos women with his “sensuous and godlike trombone playing”.  (It is impossible to do the essay justice here, if it does not ring any bells it is worth your time).   The broader point to consider is this: time is limited, research in almost every field advances by the day, and true skill or expertise, even in obscure fields , can take a lifetime to build.

Given the forum, consider international arbitration. Senior members of the profession usually have had lengthy careers in arbitration or the broader field of dispute resolution.  They are respected and listened to because their lengthy study of and experience in the field makes them arbitration experts.

Arbitration, however, is a framework for resolving disputes that can arise under all sorts of technical disciplines.  Expertise in the former does not necessarily entail even passing familiarity with the latter.  Yet, it is often repeated without much elaboration that international arbitration is more efficient because parties can choose adjudicators with particular expertise in the subject matter of the dispute.  This, the argument goes, allows parties to avoid the time-money cost of having to familiarize a generalist judge with complex and highly technical details.

It sounds simple enough, but the underlying practice in international arbitration has not been so simple.  There is considerable evidence that, year after year, multiple appointments in disputes of varying subject matters and technical complexity are given to a specific group of sought-after arbitrators.  The educational and professional backgrounds of these arbitrators are well-known to parties and counsel, and in most cases consist of stellar legal careers – academia, private practice, and/or government.  They seldom include either formal training or direct professional experience in most of the scientific and professional disciplines upon which each case-specific ruling will be based.

Of course it is possible to become a de facto expert by acting as counsel or arbitrator in several disputes about a specific subject matter.  But this does not quite address the issue here for at least two reasons.  First, as noted, the experience of many prominent arbitrators tends to include disputes about all sorts of technical fields, from engineering to biochemistry. It is unlikely that they have attained high-level expertise in all these areas.  Second, even lawyers whose practice in one field has endowed them with significant expertise – for example in construction – rarely would rely on their own view, however informed, on purely technical matters, unless they held a parallel technical qualification.

The reality is that many highly successful arbitrators are not experts qua experts.  Nor do they need to be, because the technical aspects of a case are covered by professionals retained by the parties who possess the necessary qualifications to opine on such technical issues.  In many instances the tribunal relies heavily on expert testimony to become “educated” on the relevant aspects of the technical subject-matter at issue.  As an aside, this dual role of technical experts, acting as both supporters of a party’s position as well as impartial and credible scientific advisors can seem internally conflicted and has given rise to rules for the use of experts and several arbitral rules allowing the tribunal to engage an independent expert to sort out especially complex and divergent views of party-appointed experts.

For our purposes, however, we have come full circle:  if many arbitrators’ practices are too varied for them become specialized, and the arbitral process actually provides for party-chosen technical expert professionals, what are arbitrators “expert” in other than arbitral procedure and the law writ large? And does it really matter?

Some arbitrators have suggested that their particular expertise is to be “a jack of all trades and a master of none” – in other words to absorb quickly the technical information proffered by experts and then determine its legal relevance, no matter what the underlying subject matter.  This is a key trait for any good decision-maker, but it does not really differentiate arbitrators from competent court judges – which was the main premise of the apparent advantage of arbitration over litigation discussed at the beginning.

Then again maybe the real driver behind the choice to arbitrate (and the choice between arbitrators) is not technical expertise, but the arbitrator’s overall experience, competence and availability, combined with other useful traits of the process, such as party autonomy (including the ability to choose the arbitrator in the first place).  A recent study by Queen Mary University seems to offer some support for this conclusion.

Where does all this leave us?  On the one hand, there are established bodies of technically specialized arbitrators with impeccable credentials and reputation in fields such as engineering, maritime disputes, and more recently complex financial instruments.  On the other hand, many highly technical arbitrations (including in these specific fields) with significant stakes still are entrusted to generalists with a reputation for deft handling of procedure, substantive astuteness, and fairness.  It would be optimal if these two sometimes separate arbitrator groups could frequently exchange knowledge and information, benefitting from each other’s accumulated experience.  The arbitrator that could meaningfully assimilate such combined knowledge  might indeed rival (and channel) Hugh Gallagher: “an expert in stucco, a veteran in love, and an outlaw in Peru”.