By Epaminontas E. Triantafilou (Of Counsel, Quinn Emanuel, London)
Here is a thought. Let’s move the recitation of the parties’ positions from the front of arbitral awards. I said “move” not “remove”, so please sheath that sharpened copy of the New York Convention – I come in peace.
The table of contents of a typical arbitral award might look something like this:
I. Procedural History
A. The Parties’ Positions
B. Tribunal’s Determination
A. Issue : The Parties’ Positions
B. Tribunal’s Determination
C. Issue : The Parties’ Positions
D. Tribunal’s Determination
The obvious problem with this structure is that the Tribunal’s analysis and conclusions can be accessed only piecemeal, after sifting through the – often far more voluminous – description of the parties’ submissions. Such a structure is often quite difficult to navigate, even with the help of hyperlinks and search terms. It also offers a fragmented, and possibly disjointed, view of the Tribunal’s overall rationale.
Alternatively, awards may summarize the parties’ submissions on all contended matters before proceeding to discuss the dispositive issues in the case. The Tribunal’s determination, in other words, appears at the end of the document. While it may make the Tribunal’s analysis more accessible, this approach can still be unwieldy, especially if the Tribunal cross-references party arguments that appear in the summary.
Also, in either case the Tribunal may rely on the “volume effect” created by the lengthy recitation of arguments to offer cursory rulings on each issue without affecting the outward appearance of the award itself.
Given their potentially disruptive effect on the usability flow and indeed quality of the award, why do the “parties’ positions” persistently occupy most of the award’s real estate?
It is worth recalling that the “parties’ positions” usually are a combination of summary and near-verbatim recitation of the main arguments submitted by the parties. They contain no insight into the Tribunal’s thinking about the case. The main reason the summary of arguments appears in the award is to signal that the Tribunal devoted careful consideration to the positions advanced by the parties, consistent with fundamental principles of due process.
Of course the importance of observing due process in rendering an award cannot be overstated. It is essential not only for the Tribunal’s credibility vis-a-vis the parties, but also for the recognition and enforcement of the award itself. Even the appearance of procedural impropriety can jeopardize the award in jurisdictions where courts are suspicious of or indeed hostile towards arbitration.
There is, of course, room to question whether the recitation of arguments constitutes credible evidence that those arguments actually have been considered. But this debate is for another day. The main point here is that we cannot easily do away with the summary of the parties’ positions. That does not mean we cannot move it.
The proposal is straightforward: the parties’ positions should be appended to the award in the form of a separate – but integral – annex. This would provide assurance, for those inclined to require it, that the Tribunal has considered and indeed gone into the trouble of summarizing the arguments raised by the parties. At the same time, it would free the operative part of the award from the encumbrance of a lengthy front end that more often than not reduces readability and usability.
The proposal comes with certain strings, however. An award freed from the weight of 20, 50, or 100+ pages of arguments initially may look “insubstantial” – at least to those associating quantity with substance – but it will force the spotlight on the Tribunal’s reasoning. It will become impossible to dispose of legal issues by adding one or two paragraphs at the end of a 50-paragraph recitation of arguments. Tribunals will be required to produce self-standing analyses that can be read without reference to the parties’ argumentation. The quality of arbitral jurisprudence is likely to improve, and the users of arbitration will find it easier to assess the content and quality of the decisions handed down.
Now all that remains is for a tribunal to do it.