The survey began with a number of general questions meant to explore the basic assumptions of legal decision makers. Although these questions could be viewed as ‘warm ups’ for the more detailed and innovative inquiries that came later in the interview, the questions also helped confirm the extent to which judges and arbitrators differed (if at all) with respect to how they viewed the purpose, use, and nature of legal reasoning.

1.  Purpose of reasoned decisions and awards

The first question in this series was very general and simply asked the respondent to identify the purpose of a reasoned decision or award. Scholarly and professional literature aimed at judges and, to a lesser extent, arbitrators, have identified a number of structural and non-structural reasons why legal decision makers do or should write reasoned decisions or awards.¹⁰ Although one might expect these (p. 191) rationales to be conveyed to judges and arbitrators through professional training initiatives, educational programs for legal decision makers are not standardized.¹¹ Furthermore, an unknown proportion of judges and arbitrators have completed little or no coursework in writing decisions or awards, which precludes the direct transmission of information about the purposes of reasoned decisions or awards.¹² Instead, many professionals learn basic behavioural norms, including those relating to the purpose of reasoned decisions and awards, through the process of acculturation.¹³

Despite these difficulties, the interview data nevertheless suggested a relatively strong consensus relating to the purpose of reasoned decisions or awards. First, virtually all of the interviewees—regardless of where they fell along the judicial–arbitral, domestic–international, and common law–civil law divides—indicated that ‘it is important for parties to know the basis of the arbitral decision’,¹⁴ to use the words of Interviewee 3, an international arbitrator with a civil law background.

Some respondents elaborated on why the parties needed to understand the nature of the decision. For example, Interviewee 10, a common law domestic arbitrator, recognized ‘an emotional need for a party to know the content of my decision’, while Interviewee 7, an international arbitrator, noted that parties ‘will feel better about the intellectual integrity of the process if they see how the arbitrators go forward with their reasoning’. Interviewee 8, an international judge–arbitrator, similarly indicated that a reasoned decision or award ‘ensures the parties are informed as to how the tribunal came to its conclusion and sets the basis for the extent to which the parties (or one party) will accept the decision and make its decision as to whether it will seek to set the award aside or have it confirmed’.¹⁵

Some respondents distinguished between the winning and the losing party.¹⁶ For example, Interviewee 17, an international judge–arbitrator from the civil law tradition, (p. 192) suggested that the purpose of a reasoned decision or award is ‘to explain to parties, especially losing parties, the reason for the award’.¹⁷ Interviewee 20, a mixed international–domestic arbitrator from the civil law tradition, went even further and noted that the purpose of a reasoned decision or award is

to provide parties with considerations why the tribunal decided one way or another—the parties have pled their case and need to have a clear explanation of why the way they put their case is not the outcome. Both parties must understand the way the arbitrator decides; the losing party needs to understand clearly why that particular position prevails.

One respondent (Interviewee 6, a mixed international–domestic arbitrator) went so far as to say that a reasoned decision or award ‘may help the parties if they have ongoing relations because the dispute will come up again—[it] could improve their relationship’.

Other individuals emphasized the connection between the parties and the decision maker. For example, Interviewee 1, a mixed international–domestic arbitrator, stated that reasoned decisions and awards were necessary ‘to communicate to parties the basis of the arbitrator’s conclusion in a way that shows a proper understanding of the dispute’. Interviewee 13, a common law domestic judge–arbitrator speaking primarily as an arbitrator, went slightly further, stating that the reason s/he ‘bring[s] in precedents’ and offers ‘my take on credibility of witnesses and what theories of fact and law on which [the decision or award] is based’ is ‘to allow the parties to understand why I’ve decided in a certain way’. Interestingly, one common law domestic judge–arbitrator (Interviewee 12) stated that the purpose of reasoned decisions and awards was ‘to allow [the parties] the opportunity to challenge, meaning if you give a simple answer—and that is rare now—it is less likely for people to challenge your ruling; there is less basis for a challenge’.¹⁸

Although responses focused heavily on the need to provide parties with an understanding of the outcome of the dispute, interviewees also provided a number of other rationales for reasoned decisions and awards. The second most popular response involved the role that reasoned decisions and awards play in appellate or review processes. For example, Interviewee 2, an international arbitrator, said that reasoned decisions and awards ‘provide a record of reasoning to enable a (p. 193) reviewing court (if any) to understand arbitral reasoning, essentially protecting the award’.¹⁹

Not surprisingly, those who came from an arbitration background tended to focus on procedural concerns, since review of arbitral awards is limited to procedural errors in most jurisdictions. Thus, Interviewee 1, a mixed international–domestic arbitrator, noted the need ‘to demonstrate to reviewing court (if any) that the arbitrator has treated the parties equally and given them a fair opportunity to present’.²⁰ Those with judicial experience similarly noted that reasoned decisions and awards were useful ‘to some extent … to give comfort to courts who hear annulment proceedings to show that the proceeding was correct’ (Interviewee 17, an international judge–arbitrator).

As predicted by the legal literature,²¹ several respondents indicated that reasoned decisions and awards provided an opportunity for the author to check his or her own decision-making process. Thus, Interviewee 4, a mixed international–domestic arbitrator, stated that writing a reasoned award was ‘a way of forcing me to improve the quality of my decision making, to see if it reads as well as it is in my head’. Interviewee 7, an international arbitrator, stated that a ‘very important reason’ for reasoned decisions and awards

is because it causes arbitrators to think rigorously. I have had many deliberations in which the panel thinks they’ve figured it out, and when I write the decision, I find the law is not precisely as we assumed. I have had at least one case where the panel decided the text of the law would not permit the outcome we had contemplated.

Interviewee 19, an international arbitrator, similarly indicated that the purpose of reasoned decisions and awards was ‘to make sure the decision maker pays attention to what they’re doing—that they’re not just flipping a coin. Reasoned awards provide discipline for the decision maker and understanding to the parties.’

Rather than focusing on individual needs, some respondents emphasized systemic needs. For example, Interviewee 1, a mixed international–domestic arbitrator, noted that reasoned decisions and awards ‘demonstrate to third party reviewers of the award the legitimacy of the dispute resolution process in arbitration’. Interviewee 9, a common law domestic judge, stated,

It’s a justice system and everyone is entitled to their day in court and a well-reasoned decision explaining the judge’s thoughts. Just as criminal law says I must give reasons—commercial law is the same. Our democracy needs a reasoned award—it’s part of our justice system. For example, even if we don’t agree, we can understand the reasoning.

(p. 194) Interestingly, Interviewee 15, another common law domestic judge–arbitrator with extensive judicial experience, noted a significant difference in the nature of reasoned decisions in his/her jurisdiction, depending on the type of court. As s/he said, ‘I’ve seen [state/local] court decisions with one-line decisions and orders drafted by the parties and the judge simply stamps [the document] ‘so ordered’. In [national/federal] court, every decision was reasoned’.

Another systemic rationale involves the creation of hard and soft precedent by both judicial decisions and arbitral awards.²² For example, one former common law domestic judge (Interviewee 15) noted that the purpose of reasoned judicial decisions was to ‘set precedent for future disputes that raise the same issues’. A similar rationale was enunciated by Interviewee 8, an international judge–arbitrator, who stated that a decision or award that was made public could serve ‘potentially as a resource/precedent, as it were, or a decision of interest for other tribunals before which similar issues may be raised’.

Respondents also identified a number of rationales that were not commonly discussed in the legal literature. For example, Interviewee 6, a mixed international–domestic arbitrator, noted that a reasoned decision or award ‘can help counsel understand whether they hit the mark—how they did—almost like a report card’ and ‘give[s] feedback if [counsel] were credible’. Interviewee 10, a common law domestic arbitrator, also noted that reasoned decisions and awards may be helpful if there are ‘third party participants who need to know the content of the arbitration’.²³

2.  Audience for reasoned decisions and awards

The second question in this series asked who the respondents considered to be the audience for reasoned decisions or awards.²⁴ This question offered an indirect means of confirming the responses to the previous question, since the purpose of a reasoned decision or award often implies the existence of an audience.

As expected, most of the respondents listed the parties as their primary audience members, with four individuals—Interviewees 3, 5, 13, and 19—indicating that the parties were their exclusive audience. Interviewee 18, an international judge–arbitrator, specified his/her audience as ‘the losing party—though both parties can be considered the losing party in some cases because they may not get all they ask for’. The emphasis on the parties was consistent with data derived from the survey.²⁵

Several respondents defined ‘parties’ to include counsel or specified counsel along with the parties.²⁶ Thus, Interviewee 17, an international judge–arbitrator, stated that his/her audience was ‘the parties, including counsel, and more so the losing party, since (p. 195) they need to know what they did wrong’. That sentiment was echoed by Interviewee 12, a common law domestic judge–arbitrator who said that ‘attorneys are parties. I write with the party that would consider themselves the losing party in mind. I tend to write for all to read/understand but so losing party can understand’.

A number of individuals indicated that they wrote for courts that might be asked to review an award.²⁷ In some cases, the respondent made a judgment call regarding the likelihood of review. For example, Interviewee 1, a mixed international–domestic arbitrator, stated that it ‘depends on whether I believe the award is likely to be reviewed by a court. If not, the parties and fellow arbitrators. If review is likely, then I’d include the reviewing court’. Interviewee 2, an international arbitrator, similarly focused ‘mostly [on] the parties’, but indicated that ‘I also bear in mind that the award has to be comprehensible to anyone called on to review it, meaning courts, not the public’. That sentiment was shared by Interviewee 4, a mixed international–domestic arbitrator who said his/her audience was ‘the parties’ and, ‘to a lesser extent, a reviewer that is built into the rules or by the nature of the dispute, where there should be some review’.

Not everyone focused primarily on the parties. For example, Interviewee 9, a common law domestic judge, said,

The [appellate court] is my first audience—I want to be affirmed. Then, lawyers, to show that I have heard their arguments and did my legal research. Finally, the parties—they put their faith in our courts and a decision gives them the full measure of justice. Both sides are entitled to know why the outcome came out as it did.

Interviewee 14, an international judge–arbitrator, believed that ‘the primary audience is the parties’, but ‘beyond that, we are always mindful of how someone who doesn’t know the case would understand our reasoning. The ultimate reader is the curial court.’

Several respondents raised systemic concerns. For example, Interviewee 15, a common law domestic judge–arbitrator, said that his/her audience was the court, as well as ‘all people who read legal decisions. Lawyers will look for precedent. Sometimes the audience is the public, if [the issue involves] … systemic change (outside the common law context).’ Interviewee 16, an international judge–arbitrator, noted that s/he had ‘had discussions with [a quasi-public arbitral institution] where they say we’re writing for the file to develop [a particular body of] law’, although Interviewee 16 continued to write ‘for the parties and only secondarily for the greater development of law’.

Other respondents focused on external audience members. For example, Interviewee 8, an international judge–arbitrator, indicated that although the parties were his/her first audience, ‘to the extent the award is made public, [the audience includes] lawyers operating in the field and their clients, and arbitrators in the field’. Conversely, (p. 196) Interviewee 10, a common law domestic arbitrator, indicated the most ‘significant’ audience was ‘third parties who are participating in payment of award’, with the parties constituting a ‘less significant’ audience.

3.  Hallmarks of a well-written reasoned decision or award

The final question in this series asked respondents to identify the hallmarks of a well-written reasoned decision or award.²⁸ This is not an issue that has been considered in detail by either scholars or courts,²⁹ which may have contributed to the diversity of the responses provided by interviewees.

Interviewee 19, an international arbitrator from the common law tradition, described the views of several respondents³⁰ when s/he said that a well-written reasoned decision or award contains

a recitation of facts that are relevant to the outcome; a full but succinct outline of parties’ positions on dispositive issues and a decision that clearly connects the relevant facts, applies the law to the relevant facts, leading to a decision affecting the outcome, without dicta and without deciding issues not central to the dispositive issue. The most important part is the ‘knitting’ portion—knitting the facts to the law to the outcome.

Although this description is reminiscent of standard common law thinking, the technique is not limited to those from a common law background. For example, Interviewee 20, a mixed international–domestic arbitrator from the civil law tradition, said,

First, one has to make the parties clear that you understood their arguments … so you put in the award the argument of the parties to show you understood the parties. Second, show you understand the facts of the case. Third, show you applied the law to the facts of the case and why you applied the law as you did.

Another frequent response involved matters relating to structure. For example, Interviewee 4, a mixed international–domestic arbitrator, indicated that ‘clarity of the syllogistic process, applying facts to principles of law or procedure is the most significant—this includes being complete. The most significant goal is having a very clear presentation of legal principles and facts applied to those principles.’ Interviewee 6, a mixed international–domestic arbitrator, noted that a well-written reasoned decision or award was ‘efficient, detailed, well-organized, applying law to facts so the basis for the outcome is clear’ and providing an ‘adequate explanation of outcome and basis for the outcome’.

(p. 197) The interview responses were unclear as to whether judicial decisions did or should differ structurally from arbitral awards. On the one hand, Interviewee 14, an international judge–arbitrator, indicated that a reasoned award

is structured so that people know where to find what they’re looking for, which makes writing the award different than a judgment. Judges have artistic license to write as they want to get a certain point. In arbitration, structure is more formalistic, in that you usually follow a particular order. After that, clarity of reasoning is important.

Differences between judicial and arbitral writing were also mentioned by Interviewee 15, a former common law domestic judge now working as an arbitrator. S/he stated that ‘clarity’ was a critical component of a reasoned decision or award, meaning that ‘you need to state what the findings are and what the conclusion is’. Indeed, Interviewee 15 went on to note that ‘today I’m struggling with a difficult arbitration case where I’m parsing state court decisions and they’re badly written—the state court judge maybe didn’t understand the issues’.

Although some judges took a somewhat lax view to structure, other judges did not. For example, Interviewee 9, a common law domestic judge, indicated that s/he adopted a very rigorous approach to structuring reasoned decisions, stating,

Every order is the same—it’s IRAC [Issue-Rule-Application-Conclusion].³¹ What’s background, what’s controlling law—you need to explain that you’re not just reciting [the relevant rules of civil procedure]. You need to thoughtfully lay out facts and discuss those in important part. Usually there’s no dispute about the law, especially if it’s contract law.

I want citations to the record for the [appellate court] and the parties. The facts come out of someone’s brief.

We put citations in orders we do because we make parties put citations in the briefs. All of those follow the IRAC analysis.

Arbitrators also discussed questions of structure. For example, Interviewee 3, a civil law international arbitrator, noted that ‘the International Law Association has a new study on precisely the reasoning of awards. I think this is a good topic because there are lots of mistakes on reasoning.’ S/he went on to note that, ‘for reasoning, you take claims and then reason your decision on the claims, on the basis of the argument from parties, though you do not need to address all the arguments parties present. You justify your decision on the claims.’ Interviewee 2, an international arbitrator, also noted the need for ‘completeness, not meaning every last point raised but needing to address each claim and the primary arguments at issue so there’s no complaint that the tribunal failed to respond to issues’.

(p. 198) Some respondents emphasized issues of style when discussing the hallmarks of a well-written decision or award. For example, Interviewee 18, an international judge–arbitrator from the civil law tradition, said that a well-written reasoned decision or award should be

clear, concise, not too academic, analysing facts (not ignoring them) and combining facts with legal rules and some reference to law. I’m not a fan of too many academic footnotes. Parties are not interested in academic awards—you have to solve a problem; you’re not establishing a Grundtest (that’s more an investment arbitration issue anyway). Arbitrators should not be cavalier, but should focus on a beaten track.

Interviewee 16, another international judge–arbitrator, indicated that the most important elements for him/her were,

not in order of importance: one, well-organized and crafted on a purely logical layout. Two, coherent exposition and application of law, facts, and contract. Three, well-written stylistically and otherwise, to the extent this gives the award authority—it is not better because it has literary pretentions, but it needs to be persuasive.

Interviewee 2, an international arbitrator, also focused on the concept of good writing and defined that as ‘not meaning stylish per se, but inspiring confidence in the parties as to the quality of the reasoning and skills of the arbitrator. I’ve seen ungrammatical and sloppy writing in other awards, and that suggests sloppy legal reasoning.’³²

Interviewee 7, an international arbitrator, indicated that a well-written reasoned decision or award

sets forth the factual and procedural background of the matter, including references to legal authorities (statutes and cases), and focusing on key issues—do not get bogged down in trivia.

It has good, clear writing like you see in a law review article or a legal opinion.

It walks the see-saw/tightrope between being too technical and not technical enough; it’s written so your elderly aunt or uncle could understand it but includes the technical elements. That’s why I think footnotes are important; they help avoid interruptions to the flow.

The concept of ‘readability’ was mentioned by several respondents. For example, Interviewee 8, an international judge–arbitrator, stated that a well-written reasoned decision or award ‘is written in an integrated way and is readable—dealing with the facts and law in the case’. Interviewee 1, a mixed international–domestic arbitrator, also mentioned ‘readability’ in addition to ‘defensible logic’ and a ‘principled application of legal standards as determined by the arbitrator to the facts as determined by the arbitrator’.

(p. 199) Critically, both judges and arbitrators emphasized the need to address the law, thereby rejecting the longstanding assumption that arbitrators do not apply the law.³³ Thus, in addition to the references to the controlling law noted above, Interviewee 9, a common law domestic judge, emphasized that a well-written reasoned decision or award ‘applies whatever the applicable law is’, while Interviewee 12, a common law domestic judge–arbitrator, identified the critical elements as ‘recitation of facts, identification of any points of contention, prior arbitral awards or case law that would impact my reasoning, mixing that in with facts and reasoning of case—that’s also how I write. The hallmark means those aspects of the award.’

Finally, several respondents focused on the effect of a well-written reasoned decision or award. For example, Interviewee 10, a common law domestic arbitrator, stated that a well-written reasoned decision or award ‘doesn’t result in questions’. Interviewee 17, a civil law international judge–arbitrator, noted that such a decision or award ‘should advise about all important points so that when the parties read them, the decision makes sense. The award must look fair.’

4.  Structure of a reasoned decision or award

The final question in this series asked how the respondent usually structured a reasoned decision or award. Some individuals, such as Interviewee 9, the common law domestic judge who relied on IRAC, had already discussed issues relating to structure.³⁴ However, this question provided other interviewees with the opportunity to address structural considerations.

The responses indicated no real difference between judges and arbitrators³⁵ and between national and international decision makers in terms of the substance of the decision or award. However, some variations appeared to exist with respect to the discussion of procedural issues.³⁶ Arbitrators—particularly international arbitrators—seemed more likely to include a section on procedural history.³⁷ For example, Interviewee 4, a mixed international–domestic arbitrator, specifically noted that his/her writing style

depends on the international institution or whether the case is international versus domestic. In domestic cases, especially AAA [American Arbitration Association] cases, they typically do not require lots of procedural history, but that is expected in (p. 200) international rules, and the ICDR [International Centre for Dispute Resolution] is (or people at the ICDR are) beginning to favour that, so I put the procedural history and status of the dispute in the beginning.

Those who acted a judicial capacity—particularly in a domestic setting—seemed less likely to include procedural histories. The reason behind this difference probably related to the fact that the judges in the study were first-instance rather than appellate judges, and procedural histories are often considered less necessary at the trial level.³⁸ However, some former common law domestic judges, such as Interviewee 15, did mention the need to start with ‘jurisdiction and procedural history’ before moving to facts, followed by conclusions of law.

The interview protocol did not seek to establish the motivation for international arbitral practice per se, but the various differences that arose could be attributed to standardized education on best practices in international arbitration (such as that offered by the Chartered Institute of Arbitrators (CIArb) or by arbitral institutions such as the AAA);³⁹ standardized award-review mechanisms imposed by arbitral organizations such as the International Chamber of Commerce (ICC);⁴⁰ informal socialization (acculturation) among arbitrators through international conferences or through years of experience of reading arbitral awards while acting as an advocate;⁴¹ and/or the influence of decisions from international courts such as the International Court of Justice (ICJ).⁴² Indeed, Interviewee 13, a common law domestic judge–arbitrator, specifically noted that

with the AAA, [I] follow the format—intro of case, identity of parties, witnesses, who is at table. State facts in complaint and answer, then go into presentation by claim on facts, rebutted by respondent and then how I view facts, then relationship with conclusions of law I draw to extent they’re relevant, then decision that brings together the rationale from findings of fact. The last point is boilerplate where you assign the amount due and who pays and that you’re functus officio.

Interviewee 14, an international judge–arbitrator, similarly noted that,

in a sense, we’re beaten into shape by the ICC because the ICC scrutinizes the award and you get guidance notes you must follow. The order is dictated to you. You pay a lot of attention to procedural history, which is not seen in a judgment, but you have to record that here. Here, one has to take the procedural history into account because (p. 201) the award may be read in more than one enforcing country and you must take those traditions into account and must know the differences that are required.

Another area where differences appeared involved the likelihood of including a separate section on the parties’ contentions. Interviewee 4, a mixed international–domestic arbitrator, noted that ‘I find it clunky to follow a rigid obligation to state the parties’ position on each issue, but some institutions think it’s important. I try to comply with the organization’s rules because the parties chose those rules for a reason.’

Several respondents indicated that they had a general pattern that they followed in most cases. For example, Interviewee 1, a mixed international–domestic arbitrator, used a specific template—‘(1) paragraph with short conclusion; (2) summarize parties’ positions; (3) procedural history; (4) history of dispute; (5) contentions of the parties; (6) applicable legal standard; (7) apply standards to facts; (8) reach conclusion’—that was very similar in substance to the IRAC model used by Interviewee 9, a common law domestic judge.⁴³

Interviewee 2, an international arbitrator, indicated that the ‘sequence may vary, case to case’, but usually included

who the parties are, including counsel. Procedural history—not a comprehensive history, but the major steps. The text of the arbitration agreement, the governing law, the seat, any applicable rules. I don’t necessarily have a standalone statement of facts—sometimes I put the facts in the legal analysis, since a long fact section in the abstract can be off-putting to some parties. Instead, I may just do an overview of cases with undisputed factual elements. Legal sections—each claim or material legal issue is separate. I summarize the parties’ arguments then address the relevant legal or contractual provisions and facts that lead to my decision. In complex cases, I put the facts relevant to each claim near the legal analysis. Dispositif—decision/ conclusion section with relief provided. If jurisdiction is contested, I do that section by itself.

Other respondents adopted a similar approach,⁴⁴ although the length of each section often depended on the specifics of the case itself,⁴⁵ as suggested by the coding (p. 202) exercise.⁴⁶ Interestingly, no distinction as to structure appeared to arise with respect to common law versus civil law experts.⁴⁷

Not all respondents adopted a standardized approach. For example, Interviewee 3, an international arbitrator, indicated that s/he had ‘no real standard structure’ but instead proceeded on a case-by-case basis.

Some discrepancies arose as to whether to break the substantive discussion down issue-by-issue or claim-by-claim, rather than including all of the facts or all of the law at once. For example, Interviewee 19, an international arbitrator, stated that

I start with an introduction—very short but gives the outcome, since I hate to flip to the back. It’s usually something like, ‘this case concerns a share purchase agreement, the parties have claimed X, and the claimant prevails for the reasons set forth below’. Then I set out the relevant facts, then the applicable law and relevant contracts. Then I provide the parties’ positions and discuss the issues.

The big question is always whether to go issue by issue or to set out the parties’ positions in whole. For me, it depends on whether you need to decide everything or whether one item will be dispositive. For example, if I am going to dismiss on jurisdictional grounds, I will give all the parties’ positions at once but be somewhat more succinct on the merits because I’m not going to reach those. If I must address the claims on the merits, then I will likely go issue by issue, giving the outcome on each.

The concept of breaking down the analysis issue-by-issue or claim-by-claim as best suits the dispute is in accordance with suggestions made in academic works discussing the structure of legal analysis.⁴⁸ This seems to be the approach adopted by Interviewee 18, an international judge–arbitrator, who noted that s/he would normally ‘take the position of the parties and then try to sketch their positions topic by topic, then give the view of the tribunal. I prefer to do it topic by topic, not all at once.’ Interviewee 16, another international judge–arbitrator, also indicated that s/he organized decisions and awards by ‘individual claims and counterclaims and then cost and administrative matters’.

As useful as this approach can be, there are times when it can cause difficulties. For example, although Interviewee 4, a mixed international–domestic arbitrator, normally used an issue-by-issue approach, s/he admitted ‘this can be clunky if the parties give me 25 issues and only one or two are dispositive. There are times I say, “if an issue is not (p. 203) addressed here, I have rejected it” because I just can’t make myself go through all the issues.’ Interviewee 4 similarly noted that an arbitrator must include ‘a very, very clear conclusion with relief granted’.

The next section of the interview focused on the use and interpretation of legal authorities. Questions focused on matters such as the relative importance of legal authorities, methods of reviewing legal authorities, the time involved in reviewing legal authorities, independent legal research, citation of legal authorities, and advice from judges and arbitrators to counsel regarding legal authorities. These issues were considered in both the survey⁴⁹ and the coding exercise.⁵⁰

1.  Relative importance of legal authorities

The series began by asking about the type of legal authorities (statutes, cases, scholarly works, etc.) that the respondent considered most important when s/he was drafting a reasoned decision or award.⁵¹ As noted earlier in this chapter, respondents of all types—both judges and arbitrators, including those specializing in national and international disputes—described the centrality of law to a well-reasoned decision or award.⁵² No differences appeared to arise along the various axis of inquiry (judicial–arbitral, domestic–international, and common law–civil law), although variations did appear between individual respondents, suggesting that most discrepancies arise as a result of individual temperament and decision-making philosophies, not as a result of particular functions or legal backgrounds.

The first question sought to determine how respondents defined a ‘legal authority’ and how they prioritized various types of authorities, two issues that were also considered in the survey and coding exercise.⁵³ Although the legal literature traditionally claimed that common law and civil law lawyers diverge in how they view legal authority, that hypothesis was not borne out in the interviews, suggesting that the two legal traditions are in fact converging, as suggested by more recent commentary.⁵⁴ However, some discrepancies did arise, albeit in some unexpected ways.

For example, some differences in the use of legal authorities could arise as a result of the arguments posed by counsel rather than by the training and experience of the neutral. Indeed, Interviewee 2, an international arbitrator from a common law background, noted that

mostly I rely on what the parties have cited. Typically, I do not do my own research. Common law lawyers tend to give me cases, civil law lawyers give me scholars.(p. 204)

I read as a corrective to make sure that the award reflects the framework of the governing law (civil or common) and reflects the mandatory law and procedural rules. The balance of authorities depends on the jurisdiction in question.

Interviewee 2 noted that some variations may arise as a result of the controlling law, a point that was also made by Interviewee 3, an international arbitrator from the civil law tradition. S/he said that the relative importance of different types of legal authorities ‘depends on the applicable law’, noting that

articles of civil or commercial codes will be more important and mostly addressed by the parties in civil law cases. Case law is more important in cases controlled by the common law.

It depends on the hierarchy of norms under the applicable law. For example, in England, you do not rely on doctrinal authorities [scholarly writings], but in civil law matters, you do.

Interviewee 8, an international judge–arbitrator, similarly stated that the most important legal authority was, ‘first and foremost, the applicable law. Beyond that, there may be pertinent academic authorities or decisions of other tribunals that tend to support or confirm the findings of the tribunal in the application of the law.’ Interviewee 4, a mixed international–domestic arbitrator, indicated that ‘I don’t have a single rule. I am guided by the issues and law at stake.’ However, s/he also stated that s/he was guided,

first and foremost, [by] the rules of arbitration. These do not deal with the merits, but they are important.

On the merits, first are those authorities dictated by the party’s contract—if they choose a law, that dictates the importance of the authorities. In the US, cases matter according to the federal/state hierarchy. The parties’ choice of substantive law determines if I find secondary authority helpful. I don’t always quote it, but I find secondary authority helpful.

If it’s a [statutory] question, the code that’s most applicable is the one from the state. If international treaty issues are involved, then treaties are the primary law and international law will instruct on other applicable authorities.

Some respondents believed that the relative importance of particular legal authorities changed according to the type of dispute.⁵⁵ For example, Interviewee 6, a mixed international–domestic arbitrator, said the relative importance of different authorities ‘depends on the case. Often it is case law for commercial cases, but even in commercial cases (for example, in intellectual property matters), statutes and regulations can be important.’ Interviewee 19, an international arbitrator, stated that ‘in commercial matters, (p. 205) usually the contract and major decisions in the relevant national law [are the most important]. If there are international law issues, then so-called “international precedent”. If it’s a jurisdictional issue regarding timing, then sometimes statutes will be relevant.’ However, Interviewee 19 also noted that ‘most cases turn on the facts’, not on the law, an issue that is discussed further below and that is reinforced in other aspects of the study.⁵⁶

Interviewee 7, an international arbitrator, said,

A lot depends on the case. Some turn on a statute. Often, when the matter is governed by US law, cases become very important because the statute will allow one or two inferences and case law will tell which is right. For example, I had an insurance dispute about whether a policyholder should recover, but the law often sets forth the definition of a ‘reasonable settlement’ in cases, not statutes.

Scholarly works, in most commercial disputes, are not important for substantial matters, but they are important for procedural matters, such as the extent of document production.

Interviewee 7’s view about the importance of scholarly works as a general proposition appears to be borne out by the survey and coding exercise, including the suggestion that scholarly works are used differently depending on whether the dispute is substantive or procedural.⁵⁷ When pressed on whether any differences existed based on whether the matter was governed by the common law or civil law, Interviewee 7 stated that

in practice, there’s no real difference. When one decides a case under common law (English or US) law, one cites cases, but in the civil law (I have handled matters under French, German, Swiss, Italian, and Spanish law), one cites statutes. The common law also has statutes, but you do get into cases in a way you don’t with civil law.

Regarding scholarly opinion—under civil law, there is the concept of jurisprudence constante—a continual line of case law. Often you get a professor to say the jurisprudence constante provides X as the right answer, so a scholarly opinion does come in more often because case law comes in via the opinion of the professor. You would not cite the cases directly; you’d cite the professor.

The concept of the highest form of authority in the controlling jurisdiction was emphasized by Interviewee 15, a common law domestic judge–arbitrator. When asked which type of legal authority was most important, s/he said, ‘binding authority is the most important. The Supreme Court or my circuit is governing law as interpreted by a higher court. When I have a statute, I’m bound by the terms if you understand its terms. Scholarly commentary is not binding.’ Interviewee 20, a mixed international–domestic (p. 206) arbitrator from a civil law background, also noted that the decision about which law is most important

depends heavily on the system of law that you’re applying. If it’s a civil system, then the key sources are the contract, codes, and statutes, and then jurisprudence and third-party doctrine/authors. In most civil law systems, there is no system of precedent, so jurisprudence [case law] is auxiliary. In common law systems, the main source of authority is precedent, statutes and legal authorities. The order changes depending on the type of law and the legal system.

Interviewee 16, an international judge–arbitrator, also recognized that the analysis ‘depends on applicable law and depends on case’ but noted that it was ‘trite’ to claim that ‘that relevant authorities are the most relevant’. For Interviewee 16, the first, most important authority was ‘the best substantive law if it is the substantive law. Second, I like precedents even under other substantive law. I even find other awards persuasive. Sometimes you have an expert on law—especially “exotic” law. If I can’t read the law myself, I like an expert.’

The distinction between common law and civil law authorities was also recognized by Interviewee 17, an international judge–arbitrator from the civil law tradition. On the one hand, s/he noted that that the relative importance of a particular authority ‘depends which law I’m under—I apply a lot of different law. It may depend on whether I apply common law—then there’s a lot more emphasis on decisions. If I apply civil law, I would quote decisions but put equal emphasis on doctrinal law.’ However, Interviewee 17 also noted that

I generally have a section in my first order that says the parties are to put forward legal authorities in support of their points but the tribunal has the power but not the obligation to do its own research. If it does its own research but reaches a conclusion not in response to the parties’ briefings or that would surprise the parties, it will allow a response from the parties.

I think, unlike other arbitrators, that I can reach the law that attorneys do not research. They may miss points, then I look stupid if I didn’t research.

The notion of independent legal research is an important one and is discussed more fully below⁵⁸ and in the survey.⁵⁹

Perhaps the most notable feature of the various responses was that virtually all interviewees indicated that statutes were of primary importance, regardless of the respondent’s status as a judge or arbitrator or their affiliation with the common or civil law.⁶⁰ For example, (p. 207) Interviewee 11, a common law domestic judge–arbitrator, simply indicated ‘statutes’ in response to this question. Interviewee 9, a common law domestic judge, said, ‘We start with the statute, then [appellate court] and Supreme Court precedents, then go outside for anything that’s not been addressed. I have yet to find an issue that another circuit hasn’t addressed if the [appellate court] hasn’t, so it’s very unusual to cite to scholarly work.’ Interviewee 5, a common law domestic judge–arbitrator, similarly indicated that s/he found ‘statutes and cases’ the most important type of legal authority.

No difference in approach arose along the domestic–international axis, either. For example, Interviewee 1, a mixed international–domestic arbitrator from the common law tradition, said that the most important legal authorities to him/her were, ‘where applicable, statute or rule first, then jurisprudence, meaning cases (national law), ICJ (if it is relevant) and arbitral rulings. The ICJ cases would be persuasive.’ Interviewee 18, an international judge–arbitrator from the civil law tradition, similarly said that s/he would ‘start with statutes, and if there’s well-established court precedents, then rely on those. If there are no precedents, then it’s more delicate.’

Interviewee 10, a common law domestic arbitrator, indicated that for him/her,

case law of the jurisdiction in question is probably the greatest [influence]. I do not pay much attention to scholarly works because if I’m at the cutting edge, it’s my cutting edge, not someone else’s. If I’m not at the cutting edge, then I have case law. I do not use case law from outside the jurisdiction because it’s not usually relevant unless I’m at the cutting edge.

Interviewee 14, an international judge–arbitrator, made an important observation about the role that acculturation plays in judicial and arbitral drafting and decision making. According to him/her,

There’s a difference between what authorities are important to me and the authorities that are important to the ICC—they have a more rigorous scrutiny process, and they can be difficult when you make a proposition of law that is so plain it brooks no argument, but if it has not been specifically conceded, you must put in a cite, and if it is a cite the parties haven’t noted, you must go back to the parties and ask their permission. Once you’re used to the ICC, you do it that way even if it’s not required.

Subjectively, what an arbitrator looks for—if the proposition of law is well accepted, you only need to cite a major textbook or a major case. Counsel may cite multiple cases, but that’s not really necessary for the tribunal unless a case is disputed by the other side. If the law is developed in a series of cases, you may need to cite sources of cases.

Those respondents whose rationales were not clear from their previous answers were then asked why they responded as they did. Sometimes the decision maker’s practice arose as a function of the nature of the legal authority. For example, as Interviewee 11, a common law domestic judge–arbitrator, noted, ‘Because [statutory law] is the primary (p. 208) law, case law merely interprets the statutes.’ Interviewee 1, a mixed international–domestic arbitrator, similarly stated that s/he relied on ‘statutes and rules, if dispositive, then jurisprudence, because jurisprudence will not add to non-ambiguous matters. [I rely on] jurisprudence because most statutes and rules are ambiguous, and jurisprudence is helpful to understanding the matter and is occasionally binding.’

Other respondents focused on their function as a decision maker. Thus, for example, Interviewee 9, a common law domestic judge, indicated that

I think it’s my job—I’m a trial court judge—I’m not an appeals court judge or Supreme Court Justice. I’m not making policy or procedure. I’m just applying it. If [the legislature] opined on it, they win. If it’s ambiguous, an appellate court will see [it]. I leave policy decisions to someone else unless it’s a matter of first impression.

Interviewee 5, a common law domestic judge–arbitrator, raised the tricky notion of equity.⁶¹ S/he said,

This is an issue of interest to me—the law versus equity in arbitration. It’s different in international matters because of [the role of] amiable compositeurs, but in the United States, arbitrators should follow the law and statutes and cases in common law (US) jurisdictions because they are the bases for law. They are the most important things. I also examine journals and scholarly works if parties cite them, and maybe I do some independent research.

Interviewee 6, a mixed international–domestic arbitrator, did not differentiate between judicial and arbitral functions. Instead, s/he simply noted that the reason behind the relative importance of legal authorities was ‘to give legal guidance, the relevant guidance for issues’. Interviewee 12, a common law domestic judge–arbitrator, noted that ‘I’m usually following a rule of law in arbitration because the proceeding is an alternative to litigation, so I rely on case law, sometimes statutory law’.

A number of individuals, particularly those with experience as arbitrators, focused on the principle of party autonomy. Thus, Interviewee 4, a mixed international–domestic arbitrator, said, ‘Inherent in what I’m saying is that the parties have the right by contract to choose the law that applies, and I respect the parties’ right and try my best to follow their choice’. Interviewee 10, a common law domestic arbitrator, similarly stated that ‘when parties enter into a contract with an arbitration clause, I believe it’s their general understanding or their conscious or unconscious expectation that the [legal] environment affects their business expectations’.

2.  Method of reviewing legal authorities

3.  Time of reviewing legal authorities

The next question in this series focused on when the judge, arbitrator, or law/clerk assistant read legal authorities. This issue is important not only because concerns are occasionally raised about the extent to which individual judges and arbitrators are prepared for hearings, but also because the legal literature suggests that there are significant differences in practice across national and international lines as well as the common law–civil law divide. For example, advocates in international arbitration and civil law disputes are generally understood to provide neutrals with a great deal of written material prior to the hearing, whereas advocates in domestic common law do not.⁷⁶

To reach this issue, interviewees were asked when they read legal authorities: before, during, or after the hearing. No pattern was discerned relating to differences between judges and arbitrators or between the internationality of the dispute or the decision maker’s home legal tradition, except to the extent the respondents indicated whether they were likely to receive pre-hearing submissions on the law.

Several respondents indicated that they read the legal authorities at all three times, for slightly different purposes. For example, Interviewee 4, a mixed international–domestic arbitrator, said that s/he read the materials before, during, and after the hearing.

When precisely depends on the nature of the issue or my personal familiarity with the law. If the controlling law is [the law of my home jurisdiction], I may not read the authorities if I know the body of law well. There’s no pattern to my approach to reading legal authorities, though I try to be familiar with the legal principles. I’m often chosen as arbitrator because of my expertise in a particular body of law, so I feel the parties know what they’re getting.

Interviewee 19, an international arbitrator, also noted that ‘I can read different authorities in all three phases’. S/he read legal authorities prior to the hearing ‘to be (p. 218) ready to ask questions’, during the hearing to ‘get context’ and after the hearing ‘because I’m writing the award’. Interviewee 19 further noted that, ‘in international commercial arbitration, when you read the memorials, there are a handful of cases that both parties cite in the body of their submissions, and I read those in full. Those cases that are just cited in the footnotes are typically extra, and I don’t read those.’ Most of the respondents who indicated that they read the legal authorities before, during, and after the hearing did so for reasons similar to Interviewees 4 and 19, although most individuals indicated an emphasis on reading the materials after the hearing, during the drafting of the reasoned decision or award.⁷⁷

Another group of respondents said that they read the materials exclusively before or after the hearing, but not during the hearing.⁷⁸ However, most appeared to read legal authorities both before and after the hearing, although the rationale varied somewhat.⁷⁹ For example, Interviewee 2, an international arbitrator, indicated that his/her approach

is case-specific. If the hearing is primarily to hear witnesses, then the cases are not critical in advance; instead, I make sure to read the exhibits in advance.

If the hearing is primarily to question counsel during open and close—in other words, if I think the issues in the dispute will be legal, not factual—then I’ll read the cases in advance. However, if my sense of the memorials is that it’s a fact case, then I’ll double check the legal authorities when writing the award, but if counsel doesn’t disagree about the law, then I won’t waste time during the hearing to ask about the law. I aim to make hearings efficient.

In some cases, the decision depends on how the proceeding is structured, particularly with respect to whether and when the legal authorities are required to be submitted. For example, Interviewee 12, a common law domestic judge–arbitrator, said that s/he tended to review materials ‘after the hearing’ because ‘often I don’t receive legal authority briefings in advance of a hearing—I don’t require them. We cover if parties want to, but often they elect not to brief.’ However, Interviewee 5, another common law domestic judge–arbitrator, noted that

(p. 219)

if a brief is filed before, I’ll read the main cases before so that I can get context for the facts. Mostly I read after. Seventy-five per cent of cases have post-hearing briefs (the cases are of the size to need them), and 50 per cent of those have closing arguments and post-hearing briefs.

I do most of my research after the hearing. I deliberate with the panel immediately following and split up the legal issues and who should do what on each issue regarding research. After the briefs are filed, we meet again to see if we need to revise our research.

Interviewee 14, an international judge–arbitrator, similarly stated that s/he

probably [doesn’t] read authorities themselves before the hearing because it depends when the opening submissions are received. If I get them a month before, I will ask a clerk to do a preliminary review. If I get them a week before, then we’re racing to get our impression of the law on the facts.

In commercial cases, there are not that many burning questions of law. Most counsel focus on the facts, not the law—these are contract cases involving what the contract means and what happened and whether that was a breach. That needs knowledge of the whole framework. Everyone is scrambling to know the factual background and where the dispute lies. Once you know the facts, you can look at the law.

Some legal teams break up cases into facts and law—the first chair deals with the facts and a junior person deals with the law.

This concept of legal research and preparation versus factual research and preparation is discussed further below.⁸⁰

Those respondents who focused on reading the materials prior to the hearing typically did so in order to contextualize the hearing. For example, Interviewee 20, a mixed international–domestic arbitrator, indicated that s/he read ‘normally, before, so I can go to the hearing knowing what you’re talking about, to understand the framework of the law’. Interviewee 10, a common law domestic arbitrator, stated that s/he ‘never’ read the authorities during a hearing but instead read them ‘mostly before—I might come back to them after. I do not generally accept matters that have not been raised in advance. If something comes up in a hearing, I may go back and see it, but I will have already read the materials.’

Conversely, Interviewee 1, a mixed international–domestic arbitrator, noted that s/he read the authorities ‘most often, after [the hearing]; occasionally before. If a legal issue is in controversy and seems dispositive, I will read before’ the hearing. Interviewee 18, an international judge–arbitrator, similarly stated that ‘when it’s obvious that certain legal authorities are crucial, then I read them before so that I can ask directed questions at the hearing. When the authorities are not obvious, then I read them after the hearing.’

(p. 220) 4.  Independent legal research

5.  Citation of legal authorities

6.  Advice from judges and arbitrators to counsel regarding legal authorities

The final question in this series asked respondents to describe what they wished parties and counsel knew about how judges and arbitrators approach legal authority. Although some individuals had no particular advice, most did. For example, Interviewee 8, an international judge–arbitrator, said, ‘I wish they’d understand why we do what we do with such authority.’ However, Interviewee 9, a common law domestic judge, made an important point when s/he said, ‘We judges all do it differently. No one is right or wrong—we’re humans and knowing your judge is really important. We want to be affirmed—we all want to do what’s legally correct.’ Interviewee 6, (p. 235) a mixed international–domestic arbitrator, made the same point from the arbitral perspective, stating, ‘There are variances between arbitrators in terms of how they approach matters. When choosing an arbitrator, look into these issues as part of due diligence.’¹²¹

One of the most common responses involved excessive citation by parties to legal authorities that were not central to the case.¹²² Interviewee 7, an international arbitrator, said that counsel ‘should focus on key legal authorities. It’s counterproductive to say, “here are 16 cases to consider” because the panel will not have a good discussion of all 16. It’s better to focus on two.’ Interviewee 2, another international arbitrator, similarly stated that ‘where issues are not contested, you do not need to run down every last authority. I often see the first ten pages discussing uncontroversial issues. You need to focus on what’s in dispute and make that comprehensible.’

Interviewee 1, a mixed international–domestic arbitrator from a common law background, had two related suggestions, saying, ‘One: arguments about fly specking differences in terminology in different awards and cases is not terribly helpful. Two: giving me lots of reading about items not in controversy is a waste of time and money—your money’. This advice crossed the common law–civil law divide, as noted by the response from Interviewee 20, a mixed international–domestic arbitrator from a civil law background, who indicated,

It would be good if parties identified legal authorities that are truly relevant. There’s a tendency to cite everything that’s remotely relevant. You need to focus on the relevant points.

In the past, I have asked parties to argue the first round, then, before the second round of submissions, we have a preliminary case hearing where the tribunal will discuss what will be the scope of the second round and what legal issues they want to hear more about. If you guide the parties like this, it will be more focused on legal issues, not throwing out every case of the last 20 years.

This is not to say that judges and arbitrators did not want in-depth discussion of appropriate authorities. For example, Interviewee 4, a mixed international–domestic arbitrator, said,

Where the legal principle is clear, present it as clearly as it is—do not take well-established principles and fight over them. However, where the principles are in conflict, I’d like parties to address the issue and say why a particular principle is more significant. If there’s doubt on the principle at issue, then the parties also need to address that. [Some disputes] need good, clear legal advocacy based on a complicated area of law that is in flux.

(p. 236) How one refers to authority is also important as a matter of both form and function. For example, Interviewee 7, an international arbitrator, noted that ‘when [counsel] discuss cases, they should look at the facts. It’s most disconcerting when parties cite a case with a couple words and don’t look at the context. Words have significance only in context. I had a professor who said, “You get the facts or the facts get you.”’ Interviewee 5, a common law domestic judge–arbitrator, noted the need to be even-handed in presenting materials, stating that ‘in [national] court, you need to present contrary authorities as party of your ethical duties, and I wish parties in arbitration knew that and did that’.

Interviewee 2, an international arbitrator, focused on the form of legal citations, noting,

If you cite something, include a quote or jump cite. If you just say a case stands for proposition X, I can’t be sure. A quote or jump cite makes it easier to confirm.

Counsel submissions are only useful if they’re persuasive, and as counsel you write to make the arbitrator’s life easy. To be assured that you’re correctly interpreting law, provide information for the arbitrators to check. Don’t assume arbitrators take your spin at face value.

Several other individuals made similar statements. For example, Interviewee 12, a common law domestic judge–arbitrator, noted that it was important for counsel to know ‘that we do check the propositions for which they’re being cited, so they shouldn’t try to misguide the court or the arbitrator’. Interviewee 10, a common law domestic arbitrator, said the most important tip was ‘don’t baffle me with BS [bullshit]. Tell me why something is relevant. I like highlighting to show me the relevance, but don’t try to trick me. Don’t make me work for it unnecessarily.’

Interviewee 15, a common law domestic judge–arbitrator, wanted counsel to know ‘that they can’t hide. So many cites are not on point and are distinguishable—the lawyers think we’ll miss it.’ Furthermore, as Interviewee 5, a common law domestic judge–arbitrator, noted,

I bring my experience from the bench [and bar]. I was an arbitrator at the same time I was a litigator, and I bring the practical experience from that. I wish parties knew I could see through mis-citations and overstatements. More candour from the parties would be good because I can read through BS.

Interviewee 16, an international judge–arbitrator, provided additional insights on these issues. His/her suggestions were:

First, to make things user-friendly to the arbitrator. String cites without explaining why you’ve introduced things is not user-friendly.

Second, to realize that the arbitrator is trying to solve a problem. This goes to both arguments and citations of authorities. If the authorities don’t help solve the dispute, (p. 237) they don’t help the arbitrator. A brief with lots of citations is elegant but doesn’t necessarily help the arbitrator.

Respondents identified a number of different reasons why counsel had problems with legal citation. For example, Interviewee 11, a common law domestic judge–arbitrator, believed that ‘inexperienced or new lawyers get overbroad when applying the law to the facts or don’t know the difference between a holding and dicta’. Interviewee 14, an international judge–arbitrator, thought that it can be ‘tough because counsel can’t assume that all three members of the panel are equally familiar with the law, especially if they are not all from the same jurisdiction. [As a result, counsel] must aim [their legal analysis] at the lowest common denominator.’

Most academic and practical analysis of judicial and arbitral decision making focuses on legal authorities, providing little insight into the role that factual authorities (evidence) play in legal determinations.¹²³ However, as seen from the preceding paragraphs, judges and arbitrators routinely emphasize the central importance of facts to the commercial decision-making process.¹²⁴ Therefore, the interview protocol asked a series of questions about evidentiary matters, intentionally paralleling the inquiries made regarding legal authorities to allow for comparisons across the legal-evidentiary divide. Many of these matters were also addressed in the survey.¹²⁵

1.  Relative importance of evidence

The first question in this series asked respondents to identify the types of evidence (party-generated documents, third-party generated documents, testimony, etc.) they found most persuasive. Although this question tracked a similar question relating to legal authorities, the situation was slightly different because most jurisdictions do not have a formal hierarchy relating to the persuasiveness of evidence and issues relating to the comparative persuasiveness of evidence are seldom discussed in the legal literature or in legal education.¹²⁶ The situation is exacerbated by the fact that many civil law jurisdictions do not have formal rules of evidence, let alone hierarchies of persuasiveness.¹²⁷

These factors suggest that the concept of priority and persuasiveness in evidentiary matters would be much more open to individual interpretation than priority and (p. 238) persuasiveness in legal matters. However, as the following paragraphs suggest, variation between interviewees, particularly between those acting as judges and those acting as arbitrators, is not as significant as one might expect.

For example, when asked to identify the type of evidence that they found most persuasive, several respondents immediately pointed to the governing contract. Interviewee 15, a common law domestic judge–arbitrator, said that ‘in a contract dispute, the contract is controlling. Written documents are more important than parole evidence. If the contract is not ambiguous, that’s the end of the matter. Only if the contract is ambiguous do I need to look at collateral documents.’ Interviewee 9, a common law domestic judge, similarly stated that it ‘depends on the case. If it’s a contract dispute, their contract will mean the world—we’ll have almost no case law in dispute. It all depends on the commercial context.’

Once the discussion moves past the importance of the governing contract, the standard assumption, based on scholarly commentary, is that common law lawyers will be more persuaded by oral testimony, while civil law lawyers are expected to be more persuaded by documents.¹²⁸ Lawyers involved in international commercial arbitration are said to exist somewhere in the middle of the two traditions as a result of the purposive blending of common law and civil law procedures in international arbitration.¹²⁹

As it turns out, there is a distinction between those who prefer testamentary evidence and those who prefer documentary evidence, but the split does not appear to occur over the common law–civil law divide. Instead, the issue appears to be much more a matter of personal preference.

While this phenomenon could be affected by the fact that the civil law representatives in this study tended to be internationalists rather than pure domestic experts, conclusions about the individualized nature of evidentiary hierarchies are supported by the fact that several respondents from the common law tradition indicated that they relied more on documents rather than testimony,¹³⁰ particularly when the documents were created at the time the dispute arose.¹³¹ Thus, Interviewee 1, a mixed international–domestic arbitrator from the common law tradition, said that, ‘where applicable, documents are more persuasive than oral testimony to prove something. Oral testimony is helpful if it is an admission against interest. No view [distinction] between party and third-party documents—varies by situation.’

Interviewee 5, a common law domestic judge–arbitrator, adopted an analogous approach, stating,

(p. 239)

I guess the core contract documents of course are persuasive or important. I also have found more and more evidence (a large percentage) are emails because those are contemporaneous and are therefore persuasive.

I listen to testimony from a credibility standpoint, but witnesses are well-prepared before hearings. Letters, emails, texts are all contemporaneous and therefore important.

Interviewee 2, an international arbitrator from the common law tradition, offered a similar view, stating,

It all depends on the case. Contemporaneous evidence is more compelling than after-the-fact evidence created with an eye toward litigation. Of course, there are cases where the spin is going on in contemporaneous documents as well.

Sometimes you have no documents on an issue—then witness recollection is key.

I have problems with over-lawyered witness statements.¹³² When the witness is on the stand, there’s a great deal of variation, so witness examination is an important part of any case if the case turns on witness recollection. As a result, I’m troubled by excusing of witnesses on cross-examination, since it does a disservice to the tribunal, who can’t decide credibility issues. I therefore like live testimony, although not necessarily live direct.

Interviewee 8, an international judge–arbitrator with a common law background, stated that

it’s always true that actual documentation which is contemporaneous with events that are at the core of the dispute are the most persuasive. This includes contemporaneous notes, because what people do and say at the time something happens is most persuasive.

Beyond that, live testimony tested by cross-examination of witnesses in the hearing so that you can develop your own impression of their credibility (meaning fact not expert witnesses).

I do not subscribe to the civil law view that any individual who participated in the events in issue (for example, an employee or a director) are to be given no credence whatsoever. I have had civil law-trained lawyers say more than once that ‘I don’t believe witnesses because they’re lying’. I asked a colleague why he rejected testimony, and he said that we’d never ask a person to choose between the truth and his/her employer.

Contrary to Interviewee 8’s experience, some civil law-trained respondents did not reflect a preference for documentary evidence. For example, Interviewee 18, an (p. 240) international judge–arbitrator with a civilian background, indicated that ‘it’s hard to identify a distinct hierarchy. Witnesses can be useful because they give flavour of the time frame that’s important. Correspondence can be useful, though, because it can show how a dispute has arisen.’

Other respondents from the civil law tradition indicated a respect for documentary evidence, but not to the exclusion of testamentary evidence. For example, Interviewee 3, an international arbitrator with a civil law background, said the persuasiveness of evidence

depends on the case. Some cases can be decided only on the documents. In most cases, documents are most persuasive, since they are drafted in non-suspect circumstances. Normally documents are the best evidence.

For testimony—it depends on the witness. There are different types of witnesses. Some are very open and very good. Others are reticent and don’t want to answer, and then you have the witnesses who lie. Witness statements are very important, especially if all parties agree or there is a statement by a witness against their own interest.

Interviewee 17, an international judge–arbitrator from the civil law tradition, similarly said that

I am persuaded more by fact-contemporaneous documents that can be entered by parties or third parties. Testimony maybe less. However, I find oral and written testimony (especially oral) often very helpful because it gives colour to what was until then grey. I often understand much better what has happened by listening to witnesses. I don’t always understand the underlying issues, and oral testimony allows that.

Interviewee 20, a mixed international–domestic arbitrator with civil law training, described the rationales underlying his/her approach, noting a preference

normally [for] contemporary documents—they best speak to what happened at the time. Then witnesses could be second, but the problem there is that lots of study on the psychology of witnesses shows that their recollection is often not correct (false memories, etc.), which is why contemporaneous documents are better.

Interviewee 13, a common law domestic judge–arbitrator, also indicated that

credibility is key. One tip I’ve learned is that I have developed a sixth sense on what a witness is really testifying to.¹³³ For example, a case where every time a witness was asked about an event, he said, ‘Can you repeat that?’—that happened ten times. That’s (p. 241) an example of less credibility than someone who answered easily—this was someone who wanted to gain time.

Some respondents were unable to provide a general rule of practice.¹³⁴ For example, Interviewee 4, a mixed international–domestic arbitrator, said,

I don’t know if there’s any single type. I am relatively open to all sorts of evidence, but I am a common law-trained trial lawyer with many years working under the rules of evidence, so if there is documentary evidence that has not had a foundation established and if it contains multiple layers of hearsay that has not been corroborated or authenticated elsewhere, it is often less significant for me.

I believe in the value of cross examination, so I find live testimony very valuable in all ways. However, I believe I do not overweigh any type of evidence, including expert testimony. I think I’m reasonably open and reasonably cynical about different types of evidence.

Interviewee 6, a mixed international–domestic arbitrator from a common law background, followed a similar hierarchy, preferring ‘testimony first—usually fact testimony; documents follow; expert testimony (I have a lot of those) third most important’. Interviewee 7, an international arbitrator, said it

depends on context. I have had cases where testimony decided the matter—for example, a witness contradicted himself and showed that one side’s case was hopeless. I’ve had other cases where a letter has been produced and showed one side was acting not in good faith. An expert sometimes will be helpful, but mostly on damages.

Those individuals who did not explain their methodology in their initial answers were asked to explain the motivation for their particular approach in a follow-up question. The responses were consistent with those indicated above. For example, numerous respondents were concerned about fabrication of testimony after the dispute arose. Interviewee 1, a mixed international–domestic arbitrator, indicated that ‘contemporaneous documents are often not generated with litigation in mind (although they sometimes are). Oral testimony is always litigation-oriented and has a point of view. Often it has material omissions.’ Interviewee 10, a common law domestic arbitrator, drew an analogy between judicial and arbitral procedure, saying, ‘The documents I’m seeing are usually generated in the ordinary course of business—the parties are not in CYA [cover your ass] mode. Just as those items have more power in litigation, they have more power here.’

Those with judicial experience enunciated similar views. For example, Interviewee 5, a common law domestic judge–arbitrator, said contemporaneous documents were (p. 242) persuasive ‘because those documents reflect the thinking of the person at the time they were written, not six months or a year later’. Interviewee 8, an international judge–arbitrator, believed ‘documents created at the time of events, when generally speaking the dispute has not yet crystallized and we are not in litigation, are more persuasive’.

Some respondents prioritized testimony over documents. For example, Interviewee 6, a mixed international–domestic arbitrator, said that ‘the percipient witness and their credibility is important to relevant facts. Documents don’t always speak for themselves. They’re secondary because they’re only helpful with testimony, [which] can put documents in context.’ Interviewee 6 indicated that s/he did not give much value to expert testimony in particular because ‘people don’t know how to use [experts] in arbitration. They’re usually there as third attorneys, not to answer questions.’

Interviewee 12, a common law domestic judge–arbitrator, had an interesting response, saying that s/he was ‘quite broad in what I allow in. For example, I say I’ll admit a phone book if they want to submit it so that no one feels I haven’t taken it in and considered it, even if I don’t think it’s worth considering.’

2.  Method of reviewing evidence

3.  Time of reviewing evidence

The next question in this series involved the time at which the interviewees reviewed evidentiary materials: before, during, or after the hearing. This issue was also raised with respect to legal authorities.¹⁴⁵

Responses varied, albeit with no apparent pattern relating to the interviewees’ role as a judge or arbitrator, the type of dispute (domestic or international) or the individual’s legal training (common law or civil law). For example, one group of respondents indicated that they reviewed the evidence before, during, and after the hearing, although the purpose or scope of review differed according to the stage of the proceedings.¹⁴⁶ Interviewee 2, an international arbitrator, said,

I read at all three times—before, during, and after. I read most material items before the hearing so I can ask follow-up questions of witnesses. Of course, you won’t know exactly what will be relevant. I read during the hearing if it becomes relevant, then re-read at the drafting stage.

Previously I used hard copies of everything, tabbed. Now I’m trying to do it with electronic copies, but it’s hard.

Interviewee 11, a common law domestic judge–arbitrator, noted that s/he read at all three times

because you don’t have all the documents before—you may have some based on the filings (claim, counterclaim, etc.). I read during when I’m presented with testimony (p. 249) and mark it to be read. Afterwards—the documents always have most meaning at this point because now you know what’s been presented.

Interviewee 16, an international judge–arbitrator, adopted a similar approach, noting that ‘during the hearing I look at the documents that are shown to the witness, but I leaf through the documents before and certainly after’. Interviewee 19, another international arbitrator, indicated that s/he reviewed the evidence not only before the hearing, but also during the hearing, although the latter review was not limited to ‘the documents the parties use in the hearing. I am often prompted to go look at other documents. After [the hearing], I always re-read [a document] if the reference is going into the award.’ Interviewee 10, a common law domestic arbitrator, followed the same pattern, noting that s/he read the documents ‘before—always. During—because part of oral testimony. After—only if I need to take another look.’ Interviewee 17, an international judge–arbitrator, indicated that s/he reviewed the evidence

before [the hearing and] sometimes during because I didn’t realize a document was important (meaning I read it at night or during the hearing). You also re-read during the drafting of an award, but you shouldn’t discover the document then, otherwise you don’t ask the right questions.

Other respondents focused their review on the time before and after the hearing. For example, Interviewee 3, an international arbitrator, said that before the hearing, s/he ‘read all the witness statements and all the documents I think are important. If there are one hundred documents, I read them all. If there are three thousand documents, I read the most important. After [the hearing], I read additional documents that I now know are important.’ Interviewee 14, an international judge–arbitrator, said that ‘we read what the lawyers tell us to read in two phases—the opening submissions and post-hearing briefs’. Interviewee 13, a common law domestic judge–arbitrator, similarly indicated s/he read ‘the ones submitted before—before. The hearing and post-submission documents and transcript—after’.

Interviewee 18, an international judge–arbitrator, explained his/her process in slightly more detail, indicating,

Before, I read submissions, and when I need clarification, I go to the fact documents, but I don’t read them all beforehand—I only verify. Afterwards is the same—I only look at fact documents if they’re really relevant.

One respondent—Interviewee 8, an international judge–arbitrator—discussed timing issues involving his/her law clerks or assistants, stating ‘they read everything before the hearing, when they’re doing the long bench memo, that I then study sufficiently early to have the best appreciation of the alleged facts’.

(p. 250) Only two respondents indicated that they did not begin their review until the hearing,¹⁴⁷ although this approach appeared somewhat out of step with general consensus. Indeed, as noted by Interviewee 20, a mixed international–domestic arbitrator who reviewed evidence ‘always before’ the hearing, ‘there’s nothing more irritating to the parties that an unprepared arbitrator’.

4.  Weight of evidence

One of the least-discussed matters in the legal literature involves the weight judges and arbitrators give to different types of evidence, so the next question in this series specifically asked respondents to describe how they weighed evidence. Not surprisingly, a number of responses were similar to those generated in response to questions about the relative importance of different types of evidence.¹⁴⁸ For example, several individuals indicated that contemporaneous documents were the most compelling form of evidence. Interviewee 8, an international judge–arbitrator, stated,

Contemporaneous documents/communications are the most persuasive, so I give them a good deal of deference, but it depends on how well-stated they are. Some are confusing or ambiguous or defy their own internal logic. Once people are in litigation, they might approach things with a different perspective. If the written witness statement or oral testimony seems strained vis-à-vis the contemporaneous documents, the witness will be cross-examined and, depending on how that goes, may be subjected to questions from me.

Interviewee 15, a common law domestic judge–arbitrator, indicated s/he gave ‘greatest weight to the governing document’, such as a contract. After that, the

only question is ambiguity—then you must give weight to contemporaneous documents. Witnesses have an interest in the outcome. They’re usually aligned with the parties, so I give them less weight. The same is true of experts—they’re usually hired guns aligned with their client. Some experts are neutral, however. So, most weight to documents, then expert witnesses, then fact witnesses.

Another frequent response involved the concept of corroborating evidence. Interviewee 16, an international judge–arbitrator from the common law tradition, stated that in his/her approach,

where evidence is concordant with something else in the file, it gets more weight. For example, if a witness statement is consistent with letters, that gives both the statement and the letters more weight.(p. 251)

Testimony is more subjective. If it is live, we can have impressions of witness conduct and knowledge, but the same basic rule applies—is the live testimony consistent with witness statements and documents.

Interviewee 17, an international judge–arbitrator from the civil law tradition, similarly noted,

There are witnesses whose testimony are corroborated by documents/testimony, [just as there are] also documents that are corroborated by other evidence. You look at the fuller picture. Some things don’t fall into place—usually you place less emphasis on those. You rely on those [items] that give a consistent picture by looking at all the evidence.

Other respondents identified a more complex strategy. For example, Interviewee 6, a mixed international–domestic arbitrator, stated,

For testimony of fact witnesses, it depends on how knowledgeable they are about what they’re testifying about, how credible they are, whether the testimony is corroborated by contemporary documents.

Regarding documents—I give weight depending on whether there is a witness corroborating.

Regarding experts—[it depends on] how well acquainted they are with the facts of the case and with what needs to be proven, and how they answer questions. They’re there to help me/the panel, so if they’re dodging questions or not knowledgeable, I don’t give them much weight.

Several individuals indicated that decisions relating to the weight of a particular piece of evidence was linked to the proposition the evidence was meant to support. Interviewee 13, a common law domestic judge–arbitrator, said,

The weight is a function of the reason the item was submitted. If it is peripheral issue or an issue I don’t think is definitive, I give it less weight. If an objection is made to an exhibit, I admit it for what it’s worth, which means I’m giving it little weight. Rather than not admit it, I let it in and give it little weight.

Interviewee 5, another common law domestic judge–arbitrator, was slightly less rigorous in his/her methodology and said s/he assigned weight to different pieces of evidence

partially based on the testimony, partially based on the type of dispute and whether it is a key or tangential document. I assign weight based on what I hear at the hearing. It also depends on the type of claims. If it’s a contract case, that makes the contract more important.

(p. 252) Interviewee 12, a common law domestic judge–arbitrator, was unable to describe a particular practice, but identified a number of relevant features, including ‘relevancy to the issue; whether it’s cumulative or not; clarity of the point the document substantiates; certainty of authenticity. Some is based on how it’s referred to/presented by the parties.’

A significant number of respondents struggled to answer the question, with some indicating an inability to provide an answer in the abstract.¹⁴⁹ Other individuals provided relatively simplistic or circular rationales.¹⁵⁰

Other respondents merely referred to knowledge gained from experience. For example, Interviewee 4, a mixed international–domestic arbitrator, said,

I don’t know. I think it’s the judgment of being a good lawyer and decision maker. It’s like the chicken and the egg—you need a lot of years to be exposed to a lot of things to be able to bring that judgment to bear on a dispute. I have no formula and am trying to remain surprised in every case.

Interviewee 10, a common law domestic arbitrator, said,

I think we have a natural filter based on our understanding of the inherent reliability of evidence. I monitor body language, fidgeting, etc. When you’ve been around the block, you get a read on people. I do leave room to adjust my expectations.

Interviewee 19, an international arbitrator, said,

You just know. Contracts are the most important. Contemporaneous exchanges of documents, emails, notes by principle actors and witnesses are my greatest interest.

The difficulties faced by these respondents in enunciating their approach to evidence underscores the lack of standardization relating how evidence can or should be weighed. While some observers may take the view that such flexibility is a necessary part of the adjudicative process, social scientists have found that the absence (p. 253) of a formal methodology or objective criteria can create an environment where unconscious biases can flourish, which is of course problematic for both litigation and arbitration.¹⁵¹

5.  Citation of evidence

The next inquiry in this series addressed citation of evidence, focusing not on formalistic considerations but instead on the substantive question of how judges and arbitrators decide which factual issues or evidence to discuss in a reasoned decision or award. A similar question was asked on the survey¹⁵² and an analogous question was asked in the section involving legal authorities so as to allow comparisons across the legal-evidentiary divide.¹⁵³

Not surprisingly, most respondents simply indicated that they discussed those factual issues that were raised by the parties. For example, Interviewee 2, an international arbitrator from a common law background, indicated that s/he included ‘the ones that parties say I need to decide’, while Interviewee 3, a civil law-trained international arbitrator, stated that ‘I often ask parties to agree on a list of issues. If they can’t, then they separately identify issues, and I compile a list and submit it to the parties.’

This is not to say that respondents surrendered all responsibility for identifying the relevant factual issues. To the contrary, a number of individuals indicated that their opinions, combined with the views of the parties, were the deciding factor.¹⁵⁴

For example, Interviewee 10, a common law domestic arbitrator, said that ‘I usually don’t decide that. The parties decide that, though it’s affected by how I shepherd parties early on.’ Interviewee 20, a mixed international–domestic arbitrator with a civil law background, indicated that ‘you get a list of parties’ positions including what facts are relevant to the parties and then see if those are relevant to you. Then you see if those facts are proven and how.’ Interviewee 8, an international judge–arbitrator, stated that ‘that decision is essentially made for one by the state of the record. It’s a question in part of on what facts the decision turns and what evidence you accept or reject.’

Some disparity arose with respect to the amount of respect given to the parties’ formulation of the issues and evidence. For example, Interviewee 7, an international arbitrator, emphasized that ‘one must discuss them [parties’ contentions] in their entirety. You give more emphasis to issues the parties argue, but you can’t leave anything out’. On the other hand, Interviewee 15, a common law domestic judge–arbitrator, indicated that ‘I have to decide which of many issues really need to be decided. Not all issues raised by the parties matter. They may talk for days, but that doesn’t really affect the (p. 254) outcome.’ Interviewee 17, an international judge–arbitrator from the civil law tradition, took a slightly different view, stating,

It’s a function of the legal analysis: what are legal questions that must be answered to get to the result. It’s also a function of the parties’ submissions. If they present a lot, I will address more material even if I don’t think it is important. I discuss it to make them feel that they’ve been heard, especially the losing party.¹⁵⁵

Interviewee 12, a common law domestic judge–arbitrator, also addressed the role that parties’ argument plays, noting that

I usually start with the elements/burden of proof and usually am guided by the parties, although I am not confined by the parties. If I see something placed in evidence, if it might impact on the award, I may go outside the argument made if it’s clear on the evidence that this is a point that might be determinative.

Other respondents also focused on the elements of the legal claims to be proven.¹⁵⁶ For example, Interviewee 1, a mixed international–domestic arbitrator, indicated that his/her decision on which facts or evidence to discuss turned on ‘understanding the cause of action and deciding which facts are necessary to decide those elements’. Interviewee 4, another mixed international–domestic arbitrator, similarly stated,

The answer flows from the syllogistic process, starting with the legal principle that I conclude is applicable on the authorities and the advocacy that is dispositive. Sometimes the evidence is relevant to one or two different issues, and sometimes it applies to several issues. Determining the relevant evidence is not a simple process, but it flows from the legal principles most likely to properly resolve the dispute.

There are times when I thought a certain legal principle was determinative and I’ve been convinced by my colleagues on the panel that other legal principles were more important and I changed my mind. Just because I start with one principle and look at the facts relevant to that principle doesn’t mean I won’t go back and revisit the legal principle. I have more than once backed up to review and re-do my legal analysis. Sometimes I come to different conclusions about issues and sometimes I come to a different conclusion about the winner of the dispute, especially when I’m in a panel.

(p. 255) Interviewee 14, an international judge–arbitrator, also discussed how panel deliberation affects the review and citation of factual material, stating,

In a three-person tribunal, very often this is the subject of internal discussions. Everyone pitches in and thinks about what are the most important issues. You have a decision tree and think, ‘here’s where we are, there’s where we want to go—what evidence do you need to build to the end’.

Some respondents focused on the concept of relevancy. For example, Interviewee 16, an international judge–arbitrator, said that s/he cited to ‘the items that are most telling and revelatory and that give the best and most reasonable explanation of the events’. Interviewee 18, another international judge–arbitrator, indicated that s/he included particular pieces of evidence ‘when they are relevant. For example, the parties could seek to create an atmosphere by depicting their previous history, but this has nothing to do with the dispute, so I don’t mention that.’

Several responses suggested that the evidence that is the most relevant is the material that has been discussed the most. Thus, Interviewee 19, an international arbitrator, said the factual materials that are discussed in the reasoned decision or award

identify themselves to me—they emerge from the pack as being the most important. Gerry Aksen used to say, ‘I want you to give me the notebook you have that you put under your pillow at night—the key documents, not just the trial bundle’, and I’ve yet to see a case that has more than one binder of key evidence.

Recently, I have started asking counsel to try not to create different witness documents but to give us the same documents in a single bundle so that I have one copy of the contract, one copy of the famous letter of X and the response of Y. I then use colour stickers, a different colour for the claimant and respondent, and tag the documents every time they’re used. At the end, I can see which documents have been discussed. Some never have been.

Those respondents who did not discuss the rationales motivating their citation practice were then asked a follow-up question focusing on why they include those particular references in their reasoned decisions or awards. Several individuals adopted what might be called a structural approach, claiming that factual analysis was a necessary element of the legal reasoning process.¹⁵⁷ As Interviewee 5, a common law domestic judge–arbitrator, said, ‘It’s necessary to apply the law to the facts, and if you don’t mention the facts and your interpretation of the law to the facts, you’ve not described your thinking to the parties’. Interviewee 13, another common law domestic judge–arbitrator, (p. 256) similarly indicated that ‘the facts drive the award. It depends on the theory of the case but depends greatly on testimony.’

Similar views were expressed by respondents from the civil law tradition. For example, Interviewee 3, an international arbitrator with civilian training, noted that evidence was vital to a reasoned decision or award ‘because you must reason your decision on the facts’. Interviewee 20, a mixed international–domestic arbitrator with a civil law background, indicated that s/he included citations to the evidence ‘because parties need to understand what the tribunal thought was relevant and proven or not proven’.

Other respondents hearkened back to the need for parties to understand the reasons driving the outcome. Thus, Interviewee 12, a common law domestic judge–arbitrator, noted that ‘fact citations anchor the logic of my award. I seek for parties to understand my reasoning, and when you anchor [your discussion] to evidence, they see the award is based on evidence they’ve provided.’ Interviewee 16, an international judge–arbitrator, said that

I think it gives more weight to the award and explains how I came to my conclusion. In contrast, in sports [arbitration] cases, they don’t want that—I had too many references to exhibits. They said to never refer to evidentiary documents (unlike legal authority, which they like).

I think my way is the right way and shows the rigor of your analysis. If you’re basing your decision on that document or testimony, you should say so.

Finally, some individuals included factual citations as a means of checking their own reasoning processes. For example, Interviewee 19, an international arbitrator, noted that ‘for a while, I stopped using references, I just said “the December 10 letter” not “Exhibit X”, but now I do because it’s a discipline to me to re-read the documents, and parties know that I meant that particular letter’.

6.  Advice from judges and arbitrators to counsel regarding evidence

The last question in this series asked respondents to identify what they wished parties and counsel knew about how judges and arbitrators approach evidentiary issues. While Interviewee 3, an international arbitrator, believed that ‘they know—the work of an arbitrator is no different than the work of counsel—they know what’s important in terms of law, evidence, etc.’, most respondents had one or more suggestions to make. Indeed, Interviewee 8, an international judge–arbitrator, specifically stated that ‘for their own benefit or the benefit of their clients, lawyers should really know on some basis about how arbitrators approach issues’.

Interviewee 1, a mixed international–domestic arbitrator, identified three issues that were echoed by other respondents, stating, ‘One—they [parties and counsel] should focus only on material disputes of facts. Two—repetitive evidence loses its value. Three—hyperbole and exaggeration undercut what counsel is trying to do. Note these three items also apply to oral arguments.’ Interviewee 13, a common law domestic judge–arbitrator, (p. 257) similarly noted that ‘I wish they knew it’s important, and an incredible witness demeans the argument of the party and it’s better that person not be called—it does irreparable harm. Same with incredible documents.’

Other respondents underscored the problem of excessive materials.¹⁵⁸ For example, Interviewee 2, an international arbitrator, noted that counsel and advocates should

recognize reality. An arbitrator cannot read and remember 20,000 documents; triage is necessary. Responsible arbitrators will want to reassure themselves [that] the documents say what counsel says they say. So, make those two tasks easier; give a core bundle or a post-hearing brief. Tell the arbitrators what to focus on. There will be disagreement, but it helps the arbitrators. Tell them what to read and organize the materials in a user-friendly fashion.

Interviewee 15, a common law domestic judge–arbitrator, similarly remarked that

I wish they would not put in the amounts of documents that they do. Throwing the kitchen sink in just makes it harder to get the right outcome. Cluttering the record is disturbing. If they knew what we do, maybe they’d do things differently.

In arbitration, counsel often know [what decision makers do] because they also sit as arbitrators. Lawyers in court have never been judges.

Interviewee 17, an international judge–arbitrator, noted that

sometimes I feel I’m flooded with lots of facts and there’s no proper articulation of relevant material. It’s all on the same level, and there are facts that I can disregard to apply the relevant rule of law. Parties should be more selective and more courageous in selecting and presenting materials. Sometimes I have to go look for facts because they’re not presented. So be selective—don’t present too many things.

Although most respondents focused on problems associated with presenting too much information, Interviewee 6, a mixed international–domestic arbitrator, noted that s/he ‘wish[ed] [counsel] knew that simply checking a box (for example, saying this witness will testify to this) may not be enough. How good someone’s memory is, how much detail they have, how credible they are—that’s more important’ when considering evidentiary issues.

Other respondents recognized the paradox involved in presenting evidence. As Interviewee 7, an international arbitrator, noted,

It would be helpful if parties knew that although I will look at all issues, I will focus on the main issues. But they can’t know what those main issues are, of course. For (p. 258) example, they may argue point two as an alternative in case I don’t decide for them on point one, but I can’t tell them to stop arguing point two because I have decided point one in their favour.

Not everyone takes that type of hands-off approach. For example, Interviewee 18, an international judge–arbitrator, indicated that ‘if a party insists on discussing things that aren’t relevant, I will tell them not to waste their time’. Interestingly, the different approaches identified by Interviewee 7 (a common law lawyer) and Interviewee 18 (a civil law lawyer) appear to mirror standard assumptions about the nature of common law litigation (where the parties are in control of the process), as compared to civil law litigation (where the judge takes a leading role in developing the case).¹⁵⁹ However, this distinction did not appear to be borne out by other interviewees responding to this question and may merely reflect individual preferences. Indeed, later in the interview process, Interviewee 7 indicated that s/he adopted certain techniques that are often considered more typical of the civil law tradition than the common law tradition.¹⁶⁰

This is not to say that differences between common law and civil law judges and arbitrators do not exist. For example, Interviewee 4, a mixed international–domestic arbitrator, was of the view that

different arbitrators definitely approach fact issues very differently. For example, many common law lawyers are not capable or interested in taking any approach to the hearing of evidence other than through live testimony. Some civil law lawyers take the opposite approach. Oral testimony is wasted on them. However, there are many arbitrators who try to use the best of both worlds. I’ve not sat on an exclusively civil law panel since I am a common law lawyer, but I have sat as the sole common law lawyer on a panel.

My domestic experience involved exclusively common law panels. During those years, the skills were not that different in terms of how to present to a judge/jury versus an arbitrator. Even if the evidentiary rules didn’t technically apply, the advocates still needed to ask good questions to get good testimony and use prior documents and testimony to challenge various witnesses.

I now hear complaints about US lawyers trying cases as if to a jury. I think that jurors are human, as are arbitrators, so I don’t have a problem with that. Hopefully, the advocates use clear, simple language and ask good questions and use documents to support their evidence. Those should be transferable skills.

However, Interviewee 4 him/herself adopted certain civil law methodologies in appropriate cases, demonstrating the flexibility associated with internationally minded arbitrators.¹⁶¹ Interviewee 5, a common law domestic judge–arbitrator, also indicated in (p. 259) response to a later question that s/he adopted what might be called civil law techniques in domestic arbitration, suggesting that the common law–civil law distinction is perhaps not as robust as it once was.¹⁶²

Notably, not every common law respondent supported the incorporation of common law trial techniques in arbitration. For example, Interviewee 14, an international judge–arbitrator from a common law background, noted,

For me, I do not think there’s much value in cross-examination. People ask too many questions that don’t get them anywhere. Commercial arbitration is different than litigation. Cross-examination has less of a role in international commercial arbitration because most matters are decided on the papers. Most matters of the size we have leave a paper trail, and testimony adds little. Lots of people waste time. The documents say what they say. It’s the exceptional case where you can deny your own words.

Interviewee 10, a common law domestic arbitrator, suggested that counsel might adopt trial techniques because

attorneys are largely uncomfortable with not having the certainty of court rules. If they’re insecure, they make their parties insecure, so I get levels of anxiety from witnesses that I would not expect to see in court. They think they know how to act in court but not in arbitration, and attorneys don’t help. We need a ‘Law and Order—Arbitration’.

Several respondents provided tangible tips to counsel. For example, Interviewee 11, a common law domestic judge–arbitrator, indicated that ‘I wish they’d put down the elements and the evidence in a document, not for us but for themselves. A lot of testimony and documents are not relevant. Sometimes the client wants it in, so they say it for emotional reasons.’ Interviewee 20, a mixed international–domestic arbitrator, said,

Normally, arbitrators are influenced by how parties frame the issues. I’d like parties to know the more concrete the facts are, the better. If they can provide a timeline, that’s also very helpful.

Often, I see loopholes or gaps in the pleadings. The parties should know that if they give a narrative with the timeline, that helps.

Another useful tip came from Interviewee 9, a common law domestic judge, who noted that arbitrators and ‘judges want to get it right. We don’t believe any personal animosity will make it right. Insulting the opposing lawyer is bad advocacy. When you’re being uncivil, I believe you’re telling me the law and facts are not on your side and that’s all you (p. 260) have—incivility’. Similarly, Interviewee 12, a common law domestic judge–arbitrator, said that counsel should know ‘that we approach them with fairness, neutrality and without bias and seek their guidance as to relevancy and weight that should be given to evidence’. Finally, Interviewee 16, an international judge–arbitrator, noted that counsel should remember ‘that we’re not stupid. Just lay the evidence out clearly, including the awkward stuff’.

Although legal and evidentiary issues are part of the legal reasoning process, the next set of questions focused specifically on judicial and arbitral reasoning per se. Notably, the interview protocol made a clear distinction between the reasoning process and writing the decision or award, which was covered later in the interview.¹⁶³ Questions about the reasoning process focused not only on the respondent’s standard practices but also on differences that might arise as a result of different functions that the respondent might carry out. Many of the issues analysed here were also considered in the survey.¹⁶⁴

1.  The basic process

The first question in the series focused on how the respondent went about reasoning through a decision or award. Some individuals had no pre-established methodology that they routinely followed,¹⁶⁵ whereas other individuals took a relatively structured approach to the reasoning process. For example, Interviewee 2, an international arbitrator, said, ‘You make your own outline of issues you need to decide—a decision-tree analysis—what are the core issues and what are the documents for those issues’ and then go from there.

Other respondents varied their approach according to the nature of the dispute. For example, Interviewee 3, another international arbitrator, indicated that it

depends on the complexity of the case. Some cases, even if they are big, are less complex, and after reading [the submissions] you have a feeling about the case. Then, at the hearing, you test your feelings against the arguments and you ask questions to test your feelings.

In some complex cases, you may not have a global feeling. You work through the issues, and only at the end do you reach a conclusion.

The best scenario is that you have a feeling and test that by asking questions during the hearing.

(p. 261) The concept of a ‘gut feeling’ was also enunciated by Interviewee 8, an international judge–arbitrator, who indicated that

sometimes—probably a lot—by the time the hearing comes, by which time you’re quite familiar with the case from written submissions, one has a sense of who legally is on the right side and should win. Sometimes you don’t. Sometimes the legal issues are so novel that coming out of the hearing, you’re in some degree of uncertainty. Then the deliberations among the tribunal will bring things into more focus, where your colleagues stand.

Sometimes we have to ask parties for further submissions or bifurcate proceedings if liability is found but the evidence on damages is insufficient.

Interviewee 3 noted above that s/he began the reasoning process by testing certain assumptions during the hearing. Other respondents indicated that they adopted a similar process. For example, Interviewee 4, a mixed international–domestic arbitrator, said that

I will often, when I have good quality advocates, assertively lay out the problems I have with their positions when we get to closing so that they can hear my thoughts and address them. That’s not done by a lot of arbitrators, but it helps me greatly when I think I’ve put myself in an intellectual corner and a good advocate can bring me out.

Interviewee 5, a common law domestic judge–arbitrator, similarly stated,

If I’m a sole arbitrator, I have read the authorities before the hearing, and I may not have any briefs yet but I have done some of my own research, I’ve forced the parties to hone the issues and exclude unsupported arguments. We go into the hearing focusing on what I want addressed. I’m an activist arbitrator and ask a lot of questions without taking over cross-examination. I will tell the parties what I want addressed in closing arguments or briefs. I prepare a draft of the award as soon after getting the legal authorities as possible (i.e. after closing or post-hearing briefs).

Interviewee 17, an international judge–arbitrator, also started the reasoning process early, noting,

At the time when I’m preparing and during the hearing, I think about this. When I prepare to deliberate, I do a list of issues and look at what are the relevant elements (facts and law) that I need to understand to have my roadmap of my decision. I then do a roadmap of my decision that I share with my co-arbitrators.

Other respondents indicated that they begin the reasoning process from an evidentiary perspective by considering their hearing notes in tandem with the (p. 262) parties’ submissions.¹⁶⁶ Thus, Interviewee 20, a mixed international–domestic arbitrator, said,

I start with the facts. If my co-arbitrators and I have some understanding of the facts, then applying the law is easier. If you don’t agree on the facts, it’s harder.

Then you go to the evidence—what are the consequences of this particular fact.

Then you move to the legal reasoning—what are the consequences of that fact.

Other respondents indicated that their reasoning process begins during or before the hearing. For example, Interviewee 12, a common law domestic judge–arbitrator, said that

I take copious notes, have notes with stars and signals—different coloured pens to highlight different things—and almost always ask for briefing from parties. [Then I] take my notes apart and make piles of different issues and place different testimony together in those piles. So, if there are two to three issues to be determined, I have piles then begin an outline of thoughts on different piles. I do this on paper, not on a computer. Then I form opinions on issues and see how they fit with burdens of proof.

The majority of the time I have a good feeling on how it falls into place. Occasionally I change my mind because briefing affects how I see an issue or evidence. Not until I put pen to paper do I lock into what the award will do. I rely heavily on notes but sometimes briefing changes my mind.

Interviewee 13, a common law domestic judge–arbitrator, similarly stated that

I make notes during the testimony of a witness and make margin notes determining what that testimony has to do with the issue at hand. Then I weigh the credibility of the witness. When I get the transcript, I measure it against my notes to consider if I decided correctly while in the hearing.

Other respondents focused on the law as the starting point of their analysis. For example, Interviewee 9, a common law domestic judge, said, ‘We read briefs and try to make sure we know controlling law. We hope to narrow that down in oral argument, then write our opinion.’

Interviewee 14, an international judge–arbitrator, adopted a mixed approach, stating,

I break down each side’s core reasoning as to why they think the facts and law lead to their conclusion, then reduce that to skeleton proportions and see which is the most important. If A + B = C, do we believe all the elements of the arguments, or is it X + Y = Z?

(p. 263) 2.  Changes over time

Although parties in litigation have no opportunity to choose their judge, many in the commercial realm believe that experience is perhaps the single most important quality that an arbitrator should have, an attribute that has made it increasingly difficult for young arbitrators to obtain appointments.¹⁶⁷ However, this preference for experienced decision makers only makes sense if the performance of judges and arbitrators change and improve over time. In order to get to that issue, the next question in this series asked whether the respondent’s approach to legal reasoning had changed over the course of that person’s career.¹⁶⁸

As it turned out, several individuals were not sure whether and to what extent their legal reasoning process had changed over time.¹⁶⁹ A significant number of respondents indicated that they believed their approach to legal reasoning had not changed during the course of their careers,¹⁷⁰ thereby suggesting that concerns about appointing more junior individuals as arbitrators may be misplaced. Those who indicated that their process had indeed evolved suggested that the changes were relatively minor. Indeed, most respondents who indicated a change in their approach to legal reasoning said that they had primarily become more confident. For example, Interviewee 17, an international judge–arbitrator, said, ‘I have become more confident in my own assessment, which doesn’t detract from vigorous legal analysis. [It’s just that now] I trust my legal intuition.’ Interviewee 19, an international arbitrator, said that ‘I’ve gotten older and wiser now—I’m much more confident in zeroing in on key legal issues without needing to recite everything else. I’m more confident in finding my way through the maze.’ Interviewee 10, a common law domestic arbitrator, said that ‘I suppose it has, maybe because I am more willing to trust my mental landscape than at first, 20 years ago’.

Other changes were also relatively minor. For example, Interviewee 2, an international arbitrator, said that his/her approach to legal reasoning had ‘not really’ changed over the course of his/her career; although ‘I have become more efficient, the fundamentals are no different’. Interviewee 7, another international arbitrator, similarly said, ‘I wouldn’t say it’s changed but it has become more finely tuned. I’ve seen how complicated issues are. I often say what I do is sit not as an expert but as a specialist. Doing this for a living makes for a sharper point on the pencil.’

Some respondents noted that changes had occurred not so much in their approach to legal reasoning but in the legal environment in which they worked. Thus, Interviewee 3, an international arbitrator, said that his/her typical practice had ‘unfortunately’ changed. ‘I say unfortunately because lawyers cannot make things simple any more. (p. 264) The shorter, the better, when it comes to case presentations, but often parties write hundreds of pages and you must address all those issues. Arbitration has become more complex than before.’¹⁷¹

Interviewee 4, a mixed international–domestic arbitrator, identified another external pressure that can affect legal reasoning, citing ‘information technology [as something] that’s had a big impact on my processes and probably on others as well’. Interviewee 20, a mixed international–domestic arbitrator, indicated that s/he had changed as a result of exposure to other legal traditions, stating that, ‘as a civil law trained lawyer, I tended to give the law first, then the rest, but international arbitration does not function in that way, and no common law or civil law lawyers in international arbitration work that way’.

Interviewee 14, an international judge–arbitrator, was one of the few respondents who identified a significant change in the way s/he approached the reasoning process, noting that

I [now] have a technique [relating to how I] listen to evidence. One forms a strong view after reading the submissions (the standard of submissions is much higher [in international arbitration] than in domestic), then you must go through the evidence. As I listen, I don’t record anything because that’s in the transcript. [Instead,] I write down my impressions—‘silver bullets’ I call them—key points that are questions to be answered or debunked by the other side.

I may end up with 25 to 40 silver bullets that capture my imagination as we go through the points. These are different than the impressions you get on first reading; your understanding may change. When all these flashes of insight come, I write them down—they may not be logical but they are mini-Eureka moments. If you don’t answer these questions, the outcome must go a certain way.

Interviewee 18, an international judge–arbitrator, was also able to enunciate how his/her reasoning had changed, noting,

It’s more clear-cut now. Less book, more practical. As a person, you’re inclined to decide because a court/tribunal has decided something. The more you grow up, you see those people can make mistakes and you have your own views.

I’ve also become more aware of commercial/economic realities. You still base your decision in the law, but you also root it in the business world. Also, you ask why the parties have a dispute and whether I should focus on the triggering incident.

Finally, Interviewee 5, a common law domestic judge–arbitrator, indicated that ‘I’ve come to feel that arbitration has little chance of appeal, and I need to give the parties (p. 265) all the opportunity [possible] to provide all the evidence so that they can get the fairest outcome on the law that applies to the case’.

3.  Changes due to function—judges versus arbitrators

Conventional wisdom has long held that the nature and quality of judicial reasoning differs from that of arbitral reasoning, with arbitral reasoning often considered to reflect ‘second class’ justice even in those fields—such as international commercial arbitration—that involve exceptionally complex issues of law and fact and highly sophisticated procedures.¹⁷² The next question in this series therefore asked those respondents who had served as both a judge and an arbitrator whether their reasoning process changed depending on the capacity in which they were acting.¹⁷³

Most of the 11 interviewees who had served or were serving as judges indicated that their reasoning processes did not change according to whether they were acting in a judicial or arbitral capacity. Indeed, three answered the question with a categorical ‘no’,¹⁷⁴ while another—Interviewee 14, an international judge–arbitrator—indicated that my ‘reasoning does not, though I may express myself differently in writing. As an arbitrator, I write in the third person, whereas as a judge, I write in the first person—it’s much more personal. I have a [personal] attachment to decisions but not awards.’

Of the respondents who did distinguish between their work as judges and as arbitrators, two focused on the role of equity in their determinations, although both took pains to emphasize that equity did not replace the law. For example, Interviewee 16, an international judge–arbitrator, said, ‘It’s hard to answer, [but] I’m even more susceptible now [as an arbitrator] to equitable type arguments and a little less patient with purely technical arguments, though I’ll pay attention to that’. Interviewee 5, a common law domestic judge–arbitrator, indicated that,

as a judge, I feel I must consider the rules of evidence/procedure and must consider law technically. When I was [a judge], I had to apply the law technically even if the outcome was not fair.

As an arbitrator, I do not disregard the law, but I can bring in fairness more than a judge. The parties do or should consider this factor when choosing arbitration. [For example, arbitrators are] not bound by the rules of evidence or procedure. I tell the parties ahead of time that if the document is not admissible in court, I will take it anyway [in arbitration] unless it’s privileged, and I give it the credibility it deserves.

(p. 266) Interviewee 15, a common law domestic judge–arbitrator, identified a separate issue when contemplating ‘the biggest distinction between a judge and an arbitrator’, noting that

I’m struck by the fact that you’re more personally responsible as an arbitrator because you don’t have a law clerk. Judges can sometimes pass off the responsibility to read cases/documents [to their clerks], and a judge simply reviews drafts and makes sure they’re convinced it’s right. The arbitrator must do things personally in a way that I didn’t as a judge.

Also, arbitrators are under time pressures. Judges rule when s/he rules—there are no deadlines. Arbitrators have 30 days to rule. That can be an impossible task. You may have to ask for an extension, but then you get a bad reputation. Otherwise the award may suffer.

Interestingly, several of the issues described by Interviewee 15 were also identified by other individuals in response to earlier questions.¹⁷⁵

4.  Changes due to dispute—domestic versus international

One of the major themes in this study involves potential differences in legal reasoning across the domestic–international divide, so the next question in this series asked interviewees who had experience in both domestic and cross-border disputes whether and to what extent their reasoning process changed, depending on the nature of the dispute. While a number of individuals had already touched on these matters earlier in the interview process, this question generated a number of interesting responses among those who routinely handled both types of disputes.¹⁷⁶

Two respondents indicated a clear difference in how they handled domestic and international matters. For example, Interviewee 20, a mixed international–domestic arbitrator from a civil law country, said there was ‘definitely’ a difference, noting,

We say ‘[domestic] arbitration in [my nation] is a judicial process with the right to receive good coffee’. We draft the award like a judicial decision with all the formalities, the nitty-gritty, long descriptions of the procedural steps, long description of legal conflicts. That’s one reason I don’t do national disputes any more.

Interviewee 6, a mixed international–domestic arbitrator from a common law country, also saw a difference between domestic and international decision making, but described the distinction as arising as a result of institutional influences, stating,

For example, in ICDR and AAA matters, there’s no different in reasoning, but if I do an ICC case, I have the terms of reference, issues set in stone, and may get feedback from (p. 267) the ICA Court. [There also] may be international legal precepts that force you to provide a framework that is different than what you use domestically.

However, Interviewee 4, another mixed international–domestic arbitrator with common law training, said that s/he did ‘not intentionally’ change his/her methodology, although s/he was ‘sure it does’. For example,

In international matters, I try to be sensitive to decision making processes of non-common-law trained lawyers. I can’t say what I do specifically, but the most apparent issue involves the ‘swearing contest’, which reflects different legal approaches. Most civil law lawyers view [questionable oral testimony] as the natural state of affairs and don’t listen to the witness. Common law lawyers are of course more comfortable with testimony.

Beyond that, the International Bar Association has done a terrific job of melding common law and civil law approaches.

5.  Changes due to role—panels versus single decision makers

During the design of the interview protocol, it was anticipated that some participants would identify potential differences in legal reasoning, depending on whether the individual was acting alone or as part of a panel.¹⁷⁷ The next question therefore asked interviewees that precise question.¹⁷⁸ No differences were anticipated or identified between judges and arbitrators, since judges at first instance typically work alone, and no differences arose depending on the type of dispute (domestic or international) or the interviewee’s legal background (common law versus civil law).

Five individuals suggested that their reasoning process might differ depending on whether they were sitting alone or as part of a panel, although those statements were made with varying degrees of confidence. For example, Interviewee 12, a common law domestic judge–arbitrator, was clear that

the process changes. I prefer/enjoy panels. Depending on the chair, the process can change dramatically. For example, even before the briefing, panels may have a post-hearing discussion of general thoughts on outcome, so that’s different. Sometimes chairs take control and want to take the lead in drafting—that’s the prerogative of the chair. I like a more collaborative approach.

Interviewee 4, a mixed international–domestic arbitrator, believed that

when I’m acting as a sole arbitrator, I’m just not as good as when I’m on a panel. No matter how hard I try, I’m not as good as when I’m with two other people who have (p. 268) seen and heard the evidence and who have their own approaches. I find, with rare exceptions, my reasoning improves by hearing the reasoning of others and attempting to present my own reasoning.

This statement can be misunderstood, but there’s an intellectual competition during deliberations to improve the process. I love it when co-panellists approach the process differently and we argue strongly. It’s the internal adversary process in deliberations.

If I’m on my own, I do the best I can to try to avoid single-brain thinking.

Interviewee 19, an international arbitrator, was a little more tentative, saying that his/her legal reasoning ‘could’ change, explaining that ‘when you’re alone, you don’t have anyone to toss ideas around with. I can see how things could change if you had others to bounce ideas off of. The process changes because in a panel, you do discuss things and the reasoning is richer as a result.’ Interviewee 14, an international judge–arbitrator, similarly stated that changes could arise ‘because you get input from the other two panellists’. Interviewee 16, another international judge–arbitrator, was also somewhat hesitant, noting that ‘it can do if I hear something from the other arbitrators, especially if they know more on certain subjects. So yes, but not radically. I’m open to influence.’

The majority of respondents believed that the legal reasoning process did not change depending on whether they sat alone or on a panel. Four individuals, including two from the common law and two from the civil law, provided categorical statements regarding their practices,¹⁷⁹ while other responses were slightly more nuanced. For example, Interviewee 11, a common law domestic judge–arbitrator, indicated that ‘the only thing is that you may have to discuss your reasoning but it doesn’t mean your reasoning changes’. Interviewee 10, a common law domestic arbitrator, similarly noted that ‘what changes is that I have to articulate my mental landscape with a panel, and I can just work it when I’m solo’.

Interviewee 17, an international judge–arbitrator, had an interesting perspective, noting that ‘I rarely act alone, though when I have two co-arbitrators, if they’re inclined to their own [appointing] parties, you kind of act alone. You must integrate different viewpoints and that may have some bearing on the outcome. Is the reasoning process different? I don’t think so, no. Not conceptually.’

Other respondents saw no difference with respect to the method of reasoning, although they thought being part of a panel might necessitate some minor changes to accommodate multiple viewpoints. For example, Interviewee 2, an international arbitrator, said, ‘Deliberation may differ. As a solo, you may say X issue is key, so you start with that. In a three-party deliberation, you might need a different order.’ Interviewee 8, an international judge–arbitrator, also believed that his/her reasoning did not change, although

(p. 269)

if I’m sitting with two other people, we may influence each other’s thinking. I remember a case with two people where I was insistent that there was jurisdiction on one claim and submitted my dissenting opinion and was eventually asked to rewrite that as a unanimous decision (which they had opposed before).

Other respondents had similar views about the benefits of being on a panel. For example, Interviewee 18, an international judge–arbitrator, said being in a panel is ‘more comfortable because when you’re a sole arbitrator, you can maybe be one-sided or do not benefit from the input of colleagues, so the reasoning is less complete. Interaction of the panel is key for me.’

A number of respondents focused on how panel deliberations were conducted, particularly when the respondent was chair. For example, Interviewee 5, a common law domestic judge–arbitrator, said.

If I’m the chair, even if I’m writing the award, we get together after the hearing and give our preliminary thoughts and break up the issues. If I’m the chair, I talk through the matter with the wings so I can incorporate any dissents or conflicting views in the award. I do as much analysis as I can then so that the draft is as close to the final award as possible.

Interviewee 18, an international judge–arbitrator, indicated that s/he acted primarily as chair and adopted the following procedure:

Before the hearing, I make a provisional list of issues/questions and ask colleagues how/why they feel about it. This is part of forming one’s decision. You have an opinion in discussion with colleagues, then it depends on the reaction of your colleagues and yourself. You ask why you believe your position is correct, and slowly your opinion and others’ opinions are formed. It is an interaction with two colleagues. Eventually it becomes clear why you have that opinion and something you thought was important at first becomes less important (and vice versa).

Interviewee 19, an international arbitrator, adopted a similar approach, noting,

When I’m chair, I do an outline of issues to be resolved and discuss them one by one, or, if we jump around, I save the hardest (meaning the toughest to deliberate) until the last, because that’s when tempers can flare. The outline is very important to sort out the plan for the award. It shows where you don’t agree.

Interviewee 14, an international judge–arbitrator, reinforced the importance of the chair, indicating,

If I’m not the chair, I would pay particular attention to the chair. The chair usually spends more time, is the first to come up with a preliminary view and tries to give guidance. It’s helpful when the chair gives you a steer as to what to look out for.

(p. 270) Finally, some differences also appeared to arise depending on the nature of the dispute. For example, Interviewee 18, an international judge–arbitrator, said,

My reasoning on the [international court] is triggered by the arguments of the parties but the real work is done by [the panel] and the reasoning is the interaction of [the panel] who discuss the case ad nauseum and in great detail.

The concern about what parties have argued in commercial cases is not as critical as in the [international court]. In commercial arbitration, you are trying to get an understandable award for the losing party (which can be both [meaning both parties could lose on certain issues]) and be satisfied by a court. At the [international court], there is no annulment procedure; you just need to address all the issues or the [international court] loses credibility.

6.  Advice from judges and arbitrators to counsel regarding the reasoning process

The final question in this series asked respondents to indicate what they wished parties and counsel knew about how judges and arbitrators approach legal reasoning. A number of individuals referred to their previous answers,¹⁸⁰ but most respondents offered additional advice. Notably, two respondents—Interviewee 8, an international judge–arbitrator, and Interviewee 20, a mixed international–domestic arbitrator—both said explicitly that they wished counsel knew how judges and arbitrators conducted legal reasoning. As Interviewee 20 said, ‘I wish parties knew how we reason—what are the facts, what is the evidence to support those facts, then what are the legal ramifications. Parties are starting to understand that more. That helps.’

Several arbitrators noted that counsel should do a better job in focusing their arguments. For example, Interviewee 17, an international judge–arbitrator, said counsel should understand ‘that minor issues, side issues, skirmishes in the end are un-useful and unhelpful’. Interviewee 19, an international arbitrator, similarly noted that ‘they should know to put most attention on the main legal arguments so it is perfectly clear to the judges that that’s the main issue instead of trying to give everything equal weight. You shouldn’t be afraid to say what is the main argument.’

Interviewee 5, a common law domestic judge–arbitrator, said that

I wish counsel would recognize judges and arbitrators are lawyers themselves and will approach cases from a reasonableness/fairness perspective. They can see through the BS.

Those who are belligerent are directly opposite to the cooperative process I use. So, I say quickly that I’ll not put up with that. The scorched-earth approach is not appropriate in litigation or arbitration.

(p. 271) Interviewee 12, a common law domestic judge–arbitrator, wanted counsel to know that

generally, we anchor ourselves to legal rules of law in deciding and writing an award, so they should focus on testimony and documents and exhibits that support the legal decisions and not be concerned with emotional appeals. Don’t try a case in arbitration like you would a jury trial.

Interviewee 9, a common law domestic judge, similarly stated that, ‘for me, I believe every judge wants to follow the [governing law]. It is not a game. We want to follow case law. When you dress it up in other ways, you lose what I try to do, which is correctly apply [governing] law.’

Other respondents wanted counsel to appreciate how judges and arbitrators think. For example, Interviewee 10, a common law domestic arbitrator, said, ‘We think in outlines. If you present in outline form, we will grasp what you want to convey more quickly.’ Interviewee 11, a common law domestic judge–arbitrator, wanted counsel to know ‘I’m a linear thinker’, but s/he recognized that ‘not everyone is like that’. Interviewee 11 also noted that ‘we are or should look at elements and evidence supporting those elements. It’s like putting square pegs in square holes and round pegs in round holes. If that’s difficult, you’re on the wrong thing [making a bad argument].’

Interviewee 11 made another, somewhat startling, observation, saying, ‘So many judges don’t like to make decisions but you must do it. I tell young judges the parties don’t know what do to if you don’t do it [make a decision]. You can’t always be right. Just pull the trigger.’ Other respondents—including those with no judicial experience—noted that they were very comfortable making judgment calls,¹⁸¹ so the ability to make decisions easily is something that appears to be more a matter of personality than function.

Although the legal reasoning process is closely linked to the writing of a reasoned decision or award, the interview protocol differentiated between the two so as to allow more detailed analysis. The next series of questions therefore focused on exclusively on issues relating to the drafting process. A similar set of inquiries were posed in the survey.¹⁸²

1.  Deciding whether to write a reasoned decision or award

Although the issue is not often discussed in the legal literature, judges and arbitrators do not write fully reasoned decisions and awards in all circumstances.¹⁸³ Instead, (p. 272) judges frequently write unreasoned judicial memoranda or orders in addition to entering oral decisions from the bench, while arbitrators issue procedural orders and ‘standard’ awards that typically reflect very little in the way of reasoning.¹⁸⁴ Even those rulings that are fully reasoned are not always published, either in judicial or arbitral reporters.¹⁸⁵

Given the lack of information about which disputes merit fully reasoned rulings, it was considered useful to ask about the factors that influence the determination to write a fully reasoned decision or award. Most of the answers focused on standard features of litigation and arbitration, including those relating to the creation of precedent in litigation and the role that party agreement plays in arbitration. For example, Interviewee 9, a common law domestic judge, reflected what might be called the purely judicial perspective, saying, ‘We are not writing a reasoned decision unless it’s dispositive (bench trial, summary judgment, etc.). All else can be resolved in one page. I can’t give a well-reasoned decision on motion for extension of time and get everything else done.’

Interviewee 15, a common law domestic judge–arbitrator, reinforced these principles, stating,

As a judge, if you think it’s important to set precedent, you’re always going to write. Some matters are just minor, and you’re not doing to write [a full opinion], for example, for discovery matters. You [write reasoned opinions] on those items you think need to be in the record or if you think there will be an appeal. Some judges forget that and rule from the bench. The court of appeals doesn’t like oral decisions.

Conversely, nearly all of the respondents with arbitral experience indicated that they provided reasoned awards because of obligations placed on the arbitrator by the parties, either expressly in the arbitration agreement or implicitly through arbitral rules adopted by the parties.¹⁸⁶ One respondent—Interviewee 16, an international (p. 273) judge–arbitrator—also noted that jurisdictional requirements could be relevant, stating that

you always have to do a reasoned award in Switzerland and most European countries. How long? Depends on the complexity of the case (although it can be complex and short), depends on the nature of the case. For example, construction cases need to be longer, with longer facts. The degree of formality required or not [varies] by arbitral institution—they have their [individual] obsessions.

2.  Deciding how much detail to include in a reasoned decision or award

The interview protocol was not limited to questions about whether to write a reasoned decision or award. Instead, respondents were asked to and most did provide additional information about how they determined the amount of detail that went into those rulings.

Several respondents focused on issues relating to the possibility of appeal or review.¹⁸⁷ For example, Interviewee 7, an international arbitrator, said that

I can count on one hand the times I did not have a reasoned award, and in those circumstances, the parties said they explicitly did not want a reasoned award.

I go into enough detail to make sure parties know you understand the case so the award withstands a challenge. In the old days, the AAA discouraged reasoned awards because it gave the loser a hook for the challenge. The alternative is now true—if you have a decision that is not well reasoned, the parties can say the arbitrator did not understand or intentionally disregarded the law. When you’re writing, one always thinks about judicial review.

Interviewee 1, a mixed international–domestic arbitrator, reflected this approach, indicating that ‘the more likely the award is to be reviewed, the more details I will include’. However, Interviewee 10, a common law domestic arbitrator, still followed the older technique, noting that,

to me, a reasoned award has internal breakdowns. It doesn’t just give the total outcomes. I do that when I’m asked to or [when there’s] obviously a third-party player who needs to know [the outcome of the dispute]. For example, an insurance carrier may be involved and will only cover some issues. I need to be clear so the insurer knows what’s covered.

I use ‘full reasoning’ rarely. I didn’t become a judge because as an arbitrator I don’t need to explain myself. If you explain yourself in the current legal environment, you’re more likely to be challenged. I’ll do a legally reasoned award in unusual circumstances, only when cutting-edge issues are involved.

(p. 274) Other differences arose across the judicial–arbitral divide. For example, Interviewee 11, a common law domestic judge–arbitrator, noted that,

as a judge, you’re subject to appeal, so you maybe write more detailed judgments and orders, and you may cite more law because the court of appeal will be looking at that more closely.

As an arbitrator, there is no appeal, so you have to be just as careful, but you don’t need every detail tied down like a trial court. Also, the parties often tell you if they want a short, reasoned opinion—they don’t want to pay for a scholarly opinion. On a $400 million case, I wrote a 72-page opinion—that was the exception.

When discussing the amount of detail they used, most respondents focused on the complexity of the dispute and the need to keep the award in proportion to the cost and size of the dispute. For example, Interviewee 2, an international arbitrator, said,

Whether this is 15 pages or 200 pages depends on how many issues need to be decided (sometimes there’s only one) and how much law or fact needs to be unpacked (maybe a statute of limitations analysis can decide everything). Length is driven by what needs to be decided.

I’m doing the parties a disservice if I give 200 pages on a single issue. A short award for a complex issue is equally problematic, since it will be conclusory.

I’m also influenced by the timetable and amount in dispute. I would never let amount in dispute generate a sloppy or unenforceable award, but I think about what the parties expect. If they have 800-page memorials, they don’t want a ten-page award and vice versa.

Interviewee 8, an international judge–arbitrator, similarly stated that,

regarding detail—that’s determined by the complexity of the case and the volume of evidence and the extent to which the evidence conflicts. Also, the difficulty, if any, in applying the law to the facts as the tribunal determines them. All depends on what we’ve heard—whether it’s a simple case with one to two issues or a more complex matter.

This approach was not limited to those handling international matters. Interviewee 15, a common law domestic judge–arbitrator, said that, ‘regarding length, as a judge—the complexity of the case matters. The more you need to decide, the longer the decision will be. In [my home jurisdiction], you don’t want to do two hundred to five hundred-page decisions very often.’ Interviewee 17, an international judge–arbitrator, also indicated that

the detail depends on several factors. I can do a summary or more extensive award. It depends on how parties plead the case. If they do a lot, they probably expect the (p. 275) same detail from the arbitrators. It also depends on the stakes. The amount in dispute or issues that are raised on principle or that are relevant to other international arbitrations, such as public [treaty-based] arbitrations. Some issues are more complex. Some outcomes are more or less obvious. If they’re not obvious, you explain more.

Interviewee 4, a mixed international–domestic arbitrator, had similar views, noting that

other than a few settings like high-volume consumer settings with the AAA, I can’t remember where I didn’t put some reasoning into the award. Seldom do parties want me to simply provide a dollar amount alone. I don’t remember the last time I didn’t provide some reasoning.

The next most significant factor is that the size and length and degree of analysis in the written award has to bear some proportion to the amount in dispute. It’s less of an issue for me now that so few of my cases are small (less than several hundreds of thousands of dollars). However, it’s critical that all parts of the process consider accessibility of the disputants to the process. I will not write one hundred pages for a $100,000 dispute (overstating the matter somewhat, but you get the idea).

Other than that, I do my best to make the award short and communicate my reasoning about what the parties need to know.

Other respondents focused on the need to write succinctly. For example, Interviewee 5, a common law domestic judge–arbitrator, said,

The AAA says reasoned awards do not include findings of fact or conclusions of law—you just need to explain the findings in your award. Unless required by the arbitration agreement, findings of fact and conclusions of law are not necessary as a general rule. The award should be as succinct as possible.

Interviewee 6, a mixed international–domestic arbitrator, similarly said,

If the rules or clause don’t [mandate a reasoned award] and parties did not ask for it, then I think [the deciding factor is] whether it would be helpful or not to the parties, whether the cost of award would justify writing it versus what is at stake. If the clause provides for it, [the amount of detail] depends on what the parties’ arguments are, the complexities of the matter, how much is at stake.

Interviewee 19, an international arbitrator, echoed these sentiments, noting that ‘regarding detail, it depends on the case. I try to keep my awards as short as possible.’

Other responses included a statement from Interviewee 3, an international arbitrator, who said, ‘It’s a matter of experience. I know what to do to include reasoning. I’m very careful about it. I make sure that I have reasoned the decision on all claims and addressed claims of parties directly or indirectly.’ Interviewee 18, an international judge–arbitrator, took the view that ‘a reasoned award should be consistent, concise, (p. 276) clear and deal with all relevant issues—not too complicated, because that would mean the reasoning is weak’.

3.  Deciding how to draft a reasoned decision or award

Once a judge or arbitrator decides to draft a reasoned decision or award and determines the requisite amount of detail, s/he must determine how to structure the analysis. The next question in this series therefore asked respondents to discuss how they went about drafting reasoned decisions or awards. No discernible difference arose along any of the comparative axes (judicial–arbitral, domestic–international, and common law–civil law). Instead, interviewees appeared to follow their own individual preferences.

Several respondents indicated that they had a standardized routine that they used when drafting a decision or award.¹⁸⁸ For example, Interviewee 13, a common law domestic judge–arbitrator, said that

post-hearing, I get the brief and transcript. Often, I’m constrained by time because the agreement has a time deadline [for issuing the award]. I follow my format: background details, then position statement by each party, combination of facts and arguments, then I set out my findings of fact and make comments, then I reach conclusions of law, then I go into my rationale, where I take two sets of facts, my findings of facts and work them into a discussion with the law, then I list my award—who gets money. It’s a form in the sense of headings but the guts are different for each case.

Interviewee 2, an international arbitrator, noted that

I don’t have a template but create an outline/table of contents and start filling it in. I do the procedural history first—that forces you to remember development of the case. You lose that if the tribunal secretary does the procedural history.

Then I turn to the analysis and also do a summary of party contentions to help remind me of key cases and exhibits. I’ll take notes during the hearing on [the anticipated] outcome but won’t write that section until after [I’ve done] others because your gut may be wrong.

Interviewee 19, an international arbitrator, adopted a similar approach, saying,

I try to draft the preliminary sections ahead of time—who are the parties, what are their positions, etc.—so that after the hearing I can focus on resolution of the legal issues. I also go back in and fill in section on the oral testimony and the rest of the parties’ submissions.(p. 277)

I have a section that I call the parking lot at the end of the draft—these are items that I am not sure about. I throw them into the parking lot, and when I’m done with the award, I’ll review the parking lot and often find treasures there.

I also bracket material a lot. If I’m the chair and I’m not sure if we want to include something as a group, and if I have three options, I’ll put them all in to help with deliberations.

Other individuals approached the drafting process from what might be called a substantive perspective.¹⁸⁹ For example, Interviewee 9, a common law domestic judge, characterized his/her writing process as ‘IRAC-heavy. I identify the issues the moving party (or whoever has the burden) has raised and address each of those in decision serially.’¹⁹⁰ Interviewee 3, an international arbitrator from the civil law tradition, adopted a somewhat similar approach, indicating that

usually I draft issue by issue. If there are lots of legal issues, I start with a chapter on legal issues so that my ideas are clear on the law, then I go issue by issue or chapter by chapter. However, it depends on the type of case. For example, I have had construction cases with two hundred issues.

Interviewee 1, a mixed international–domestic arbitrator, said,

In commercial dispute, only rarely is there a disputed legal standard because most of the body of law is contract law; regulatory issues may be different. [If the dispute turns on the] application of the contract, not much is in legal controversy, so I will focus more on facts then. The process is iterative in those cases. I use the record to flesh out what parties are saying. Sometimes as I write the story of the facts, I get a clearer view.

Other respondents sought the parties’ assistance in the drafting process. Interviewee 4, a mixed international–domestic arbitrator, used that approach, noting,

If it’s a significant case and I’m dealing with lawyers who understand the process, I will ask them for findings of fact and conclusions of law. However, I won’t do that if they use it as an additional opportunity for advocacy or if my colleagues on the panel dislike that method. Many arbitrators do not do this.

I request all written submissions to be in Word (not pdfs) so that I can get citations, etc. in digital form. I don’t pull out the arguments of the parties but if they have a (p. 278) concise quotable legal authority, I’ll start there by constructing the legal principle as a freestanding matter.

Sometimes, depending on the arbitral rules and what the institutions require, I may construct ‘shell’ portions of the award regarding the parties’ positions that are pulled from the submissions.

To me, I never know whether I’ll start with the outcome following a series of recitations or whether I’ll go issue by issue. It depends on the case or if I’m on a panel.

Interviewee 7, an international arbitrator, also relied heavily on party submissions, stating,

I’m a big fan of post-hearing briefs. You have to read more, but the briefs tell you what the parties think is important. Then I sketch the key issues, give the parties’ arguments and then my conclusion. I feel strongly that post-hearing briefs are excellent. Not all arbitrators think that, but in most complicated cases, they have multiple twists, and post-hearing briefs give the parties the chance to connect the dots for the arbitrator.

Finally, some respondents used a combination of approaches. For example, Interviewee 6, a mixed international–domestic arbitrator, said,

I break it down—start with the introduction and background (what happened), background facts, law that’s important—and do that first. Sometimes I outline before I start writing, so I have a path to follow. Sometimes I delve into it from the briefs and arguments. In significant cases, where I have arguments after post-hearing briefing, the argument is excellent—they really help (along with my questions), and the panel is prepared to listen carefully and have questions in mind.

Interviewee 16, an international judge–arbitrator, similarly stated,

After mulling it around a lot and depending on my soul-searching, I start making notes to myself—there may be lines I want to use. I will outline (for me) where I think I’m going. Sometimes I put [down] all the headings (like an outline) and these may change—what are the questions in dispute (for example, was the option exercised, was the exercise properly done, etc.)—then I fill in sections trying to go from beginning to end. For me, it is hard to go back to fill in sections that I skipped, so I proceed in a linear fashion.

It depends also on if this is a 10-page sports award or an 80-page decision with lots of facts.

Some respondents incorporated an iterative element into the drafting process. For example, Interviewee 15, a common law domestic judge–arbitrator, said that

ninety-nine per cent of [a first-instance judicial decision] is drafted first by the clerk. This is a little more true of appellate courts as well, sadly—sad because they have (p. 279) nothing else to do other than write opinions. [Judge Richard] Posner was famous for writing his first drafts.

Interviewee 8, an international judge–arbitrator, made a similar comment, indicating,

There’s a difference between [an international court] and arbitration. In arbitration, there’s difference between whether you’re acting as the chair or not.

If I’m the chair and my colleagues anticipate a draft from me, my clerk will be familiar with deliberations because he or she has sat in on them (this happens infrequently) or I’ve given an oral or written readout of the outcome of the deliberations [to my clerk]. Then I sit down with my clerk and outline what’s to be in the award and how it’s to be written. The clerk then does a draft, and I make a mess of it with a blue pencil—partly because it needs to sound like me, and every arbitrator has his or her own style. Once I have a draft, I circulate it to colleagues, they make comments, and I finalize.

If I’m party-appointed, then after deliberations we see an award and comment on it.

On a multi-person court, there are deliberations and the president of the tribunal has the responsibility of preparing the award, which is circulated in draft to the other judges.

Interviewees 8 and 15 both came from the common law tradition. However, their drafting techniques were not that different from those discussed by respondents from civil law backgrounds. For example, Interviewee 17, an international judge–arbitrator, said that s/he

starts with [panel] deliberations. I take notes of deliberations and have pre-deliberation notes. Generally, I have uncontroversial points (all except the discussion or part of the discussion) drafted before deliberations. Then I draft parts myself or give instructions to my assistant to do a first draft on the basis of the deliberations and my summary of the deliberations. I work a lot on the framework, but I could tell an assistant to do things. It’s a long process, and I go to my co-arbitrators who may have issues or comments.

Interviewee 18, another international judge–arbitrator, indicated that, in his/her experience,

normally the chair writes [the reasoned decision or award]. You get the feeling of your colleagues at the hearing or stay half a day afterwards to go over the questions to be solved. You get your gut feelings. Sometimes, if you get along very well and they [your colleagues] are reasonable, then you may be able to divide the drafting work. The drafting is done by the chair, who submits the draft to colleagues, and then you go over the submissions of the parties to make sure that you’ve covered everything.

(p. 280) 4.  Changing the outcome during the drafting process

According to the legal literature, many judges and arbitrators do not undertake specialized educational programming relating to reasoning and drafting decisions and awards.²⁰³ The final topic of discussion in the interviews therefore focused the process of learning to write a reasoned decision or award, not only to increase the legal community’s understanding of how information about the nature of reasoned decisions and awards is conveyed within the judicial and arbitral communities, but also to determine how judicial and arbitral education on this subject might be improved. Many of the issues discussed in the interviews were also raised in the survey so as to allow cross-study comparisons.²⁰⁴

1.  How respondents learned to draft reasoned decisions and awards

The first question in this series focused on how interviewees learned to write a reasoned decision or award, a question that was also asked on the survey.²⁰⁵ This inquiry sought to determine whether judges and arbitrators learn primarily through formal, standardized methods of education or whether more informal processes such as those involving socialization or acculturation predominate.²⁰⁶ Notably, the interview protocol focused exclusively on interviewees’ beliefs about how they learned to write reasoned decisions and awards and did not seek to test the effectiveness of any particular mechanism.

According to the responses, most judges and arbitrators did not learn to write reasoned decisions and awards through formal means. Indeed, a number of individuals indicated that they had never taken any coursework on this subject,²⁰⁷ with Interviewee 15, a (p. 284) common law domestic judge–arbitrator, dismissing the need or value of such coursework, claiming, ‘Either you’re good or you’re not. Some judges never learned to write.’ Interviewee 3, an international arbitrator, similarly said that said s/he learned to write reasoned awards ‘by experience. I never had a problem with it. I have had no awards overturned.’

Some individuals who had taken such coursework indicated that they found it useful. For example, Interviewee 12, a common law domestic judge–arbitrator, said that s/he had taken

multiple AAA courses in my early time as an arbitrator. Used to be in person—usually went every one to two years. Over time, I went to ABA arbitration training courses. The last ten years, I took lots of CLEs on how to write.

Interviewee 14, an international judge–arbitrator, had a similar experience, noting,

I did not go to judge school (I was a judge first). I went through the CIArb Fellowship course—heavy emphasis on award writing, and you must take a test at the end. I took that course right at the beginning of my career. There I learned the difference between an award and a decision.

Other people indicated that they took some form of coursework but did not find it helpful.²⁰⁸ Many of these individuals indicated that their learning came by watching more experienced arbitrators and/or by reading decisions or awards. Thus, Interviewee 1, a mixed international–domestic arbitrator, indicated s/he had learned ‘first, by watching others and reading judicial decisions. Later, by applying advocacy skills to writing—the skills apply equally to writing.’ Interviewee 19, an international arbitrator, said, ‘I taught myself. I saved the good awards that were delivered in cases of mine when I was counsel. I didn’t take any courses.’ Interviewee 2, another international arbitrator, said that s/he learned

by reading [awards] as counsel. I have [also] flipped through guidance documents—arbitral checklists from ICCA [International Council for Commercial Arbitration],²⁰⁹ IBA Arb40 [International Bar Association Arbitration Committee for Under-40s],²¹⁰ etc. I do not follow a template; I just develop my style independently.

Many judges appeared to have the used the same approach. For example, Interviewee 11, a common law domestic judge–arbitrator, said that s/he learned through ‘practice, (p. 285) practice, practice. You read appellate cases as a lawyer and as a judge, see how they do it. That’s the model, especially as a judge.’ However, other judges, such as Interviewee 9, a common law domestic judge, indicated that s/he had taken several courses on writing reasoned decisions through formal judicial education programs.²¹¹ This difference may have arisen because Interviewee 9 and Interviewee 11 worked as judges in different legal systems, but it may also be due to the fact that many common law judges are not required to take any judicial education courses before or after their elevation to the bench.²¹² Even those individuals, such as Interviewee 15, who work in judicial systems that strongly encourage participation in judicial orientation training do not always take advantage of the opportunities presented to them, a phenomenon that may be explained by what is referred to as ‘judicial hubris’.²¹³

Some of the individuals who had engaged in professional education programs suggested that training techniques have changed over the course of time. For example, Interviewee 4, a mixed international–domestic arbitrator, said s/he learned to write reasoned awards in a

couple ways. In the early years of my arbitral career, I was introduced to arbitration via construction arbitration, which had only a handful of arbitrators. I sat with some excellent arbitrators during that time. Back then, there were those in the field who discouraged giving reasons in awards (this was 30 years ago), but I sat with some excellent arbitrators who did give reasons, and I learned how to do that by observing good legal writers.

Then the time came when domestic institutions began to offer programs on award writing, and I took some of them 20 years ago.

In the international realm, I saw the different sets of rules and the different approach. I took the CIArb three- to four-day Fellowship program that included crafting an award as a part of a proctored exam. The CIArb training discussed the different sections of an award and is a well-structured approach to international awards. I was then exposed to award-writing in different settings—ICSID [International Centre for Settlement of Investment Disputes], ICC, etc. Each has its own approach, and I’ve learned from fabulous arbitrators and institutions over the year. I keep learning.

Interviewee 5, a common law domestic judge–arbitrator, had a similar experience, noting s/he learned through

experience: serving on three-person panels with more experienced people and seeing how they did it. The AAA has had training sessions that have been valuable over the (p. 286) years. Other arbitration seminars have helped. However, I developed my own style from the beginning and stuck with that. My first classes with the AAA were in the mid-1980s.

Although many judges and arbitrators learned to write reasoned decisions and awards as a result of their experience as counsel and/or as a judge or arbitrator, several respondents mentioned another form of experience—that of acting as a law clerk—as being useful. Interviewee 6, a mixed international–domestic arbitrator, said that, ‘very simply’, his/her education had begun by ‘working for a judge. I clerked for a brilliant judge. I also was a staff attorney at court, and we drafted sometimes for the judges. My boss was a great writer. I learned from him.’ Interviewee 9, a common law domestic judge, similarly stated that s/he had learned during his/her clerkship from both the judge and the senior clerk, noting that the senior clerk ‘told me the form. It’s not any different than what’s taught in law school or seen in [appellate] case law. Follow IRAC, don’t write a law review article.’

Interestingly, when answering this question, a number of individuals failed to distinguish between good writing skills as a general proposition and writing reasoned decisions and awards,²¹⁴ a phenomenon that was also seen in certain responses to the survey.²¹⁵ For example, although Interviewee 7, an international arbitrator, did say that s/he learned ‘by practice [and] time—sitting down and doing it over and over’, s/he also noted that

I am forever grateful for a freshman counsellor in undergraduate college who helped my writing, and I go back to those principles. When I was a young [professional], a more senior person said ‘your [writing] goes in circles’. That hurt my feelings, but he was right, and I tried to make my discussions have a beginning, middle and end. Criticism has taught me.

Interviewee 18, an international judge–arbitrator, offered a similar response, stating,

My basic academic writing started at [university]—doing first, second, third drafts—something I continue to do. Everything has three drafts.

I draft by hand, not computer, since I think computer screens look too neat and you lose your self-criticism. If you write by hand, you feel the pain and can change the text more easily.

As a follow-up question, those respondents who had taken a course on writing reasoned decisions or awards were asked why they did so. Most indicated that the courses (p. 287) were mandatory if the individual in question was to remain a judge or arbitrator or if the individual wished to obtain certain professional credentials. Thus, Interviewee 1, a mixed international–domestic arbitrator, indicated that s/he took the CIArb course ‘because it was mandatory for Fellowship’ and possibly certain AAA training ‘because it was mandatory for staying on the roster’. Interviewee 2, an international arbitrator, similarly indicated that s/he took ‘maybe a mandatory AAA course to get on the roster ten years ago to fulfil a requirement, but that’s not where I learned my skills. CIArb—I have taught the course for Fellows but never took it. Teaching classes is useful.’ Interviewee 9, a common law domestic judge, indicated that s/he had received training as part of a strongly recommended orientation course for new judges in his/her legal system, although Interviewee 15, a common law domestic judge–arbitrator from the same jurisdiction, had opted not to take that course.

2.  Advice regarding the drafting process

The next question in the series asked respondents to identify what they wished they had known when they first started writing reasoned decisions or awards. Several individuals could not think of anything in response to this question,²¹⁶ and a few indicated that they already knew everything they needed to know as a judge or arbitrator as a result of their earlier experiences.²¹⁷ However, several individuals did provide substantive suggestions.

First, several individuals mentioned that they wished they had known more about gauging the appropriate length of a reasoned decision or award. Interviewee 9, a common law domestic judge, cited the old adage, ‘If I had more time, I’d have written a shorter document,’ and noted that, in his court,

we have that time, so we aim to get quickly to the decision. Winning or losing is important, but how you get there is also important. I don’t have to explain everything, but I need to say why I arrived here—I need to strike a balance. That’s the justice system.

Interviewee 13, a common law domestic judge–arbitrator, said s/he wished s/he had been aware of the ‘mantra “the more you write the less sure you are” ’. As a result, Interviewee 13, like Interviewee 9, now ‘aim[ed] for brevity’.

Interviewee 17, an international judge–arbitrator, also found him/herself ‘struggling to keep the award short and simple when cases are complicated or over-lawyered’. However, Interviewee 17 was not sure whether s/he was writing longer decisions and awards because the disputes were becoming more complex or because ‘I’ve become more critical’.

(p. 288) These statements about length are intriguing, given that arbitral awards have long been criticized on the grounds that they are both shorter and less analytically rigorous than judicial decisions,²¹⁸ although the coding exercise that was conducted as part of this study suggested that decisions and awards do not differ significantly with respect to length when the dispute is of a commercial nature.²¹⁹

Another series of comments focused on process considerations. For example, Interviewee 19, an international arbitrator, said,

I wish I’d followed a colleague’s advice to do the vanilla parts of an award [the procedural history, parties, etc.] first. When I don’t do that beforehand, I regret it. If you have done the facts first and actually laid out the key parts, you’re more prepared for the hearing. That takes a long time to do. After the hearing, it’s more important to get into the second part of the award (the legal analysis).

Interviewee 18, an international judge–arbitrator, similarly noted that when s/he began working as an adjudicator, ‘I was naïve. What I now know is that it takes more time than you think’ to produce a reasoned decision or award.

Other respondents focused on cooperation with the parties. For example, Interviewee 5, a common law domestic judge–arbitrator, said that ‘I wish I had thought about involving the parties in addressing the issues as I do now. Early on, I decided the parties should do research that leads up to reasoning in the final award.’ Interviewee 12, a common law domestic judge–arbitrator, indicated that s/he wished s/he had known ‘not to reach a conclusion until you’re pretty much through the process. [Also,] don’t be afraid to ask for views post-hearing as long as you include both parties in the discussion.’

Interviewee 1, a mixed international–domestic arbitrator, indicated that s/he wished s/he had known ‘who the audience was [and the] importance of due process in court/annulment committees in reviewing the award’. Interviewee 11, a common law domestic judge–arbitrator, wished that s/he had known ‘maybe [to] include more facts’, while Interviewee 16, an international judge–arbitrator, said that s/he wished s/he had known

first, how important it is to have an overview of where the evidence is—not just the general facts, but what the documents say. It helps with the hearing and with writing the award. Second, I wish I’d known how stressful it is—some cases are easy, but some are not.

3.  Need for educational programming

The next question in this series asked respondents whether they thought judges and arbitrators would benefit from educational programming on reasoned decisions or (p. 289) awards, assuming judicial and arbitral independence were respected in the design of the program. This question was also included in the survey.²²⁰

While one individual categorically denied the need for educational programming,²²¹ most people were in favour of additional training relating to reasoned decisions or awards.²²² For example, Interviewee 4, a mixed international–domestic arbitrator, said that ‘of course’ there was a need, since s/he had ‘seen some judges trying to make the transition [to arbitration] and do an awful job’, which suggested that ‘they would benefit greatly’ from additional instruction. Interviewee 4 also said that ‘I still enjoy programs that have brand-new content and formats, especially if they have a drafting component, since that helps refresh my understanding of issues involving drafting’.

Although many respondents were in favour of additional coursework, Interviewee 16, an international judge–arbitrator, put his/her finger on the crux of the issue, stating, ‘Yes—we all have something to learn. Whether I’d attend, I don’t know. I flatter myself that I think I know how to do it.’ This statement shows an admirable understanding of the ‘bias blind spot’, meaning the ability to see faults or biases in others but not in oneself.²²³

Interviewee 2, an international arbitrator, also identified problems with his/her colleagues, noting that it was ‘hard to say “no” [to the need for more education] because some arbitrators write sloppy awards and are overturned’. However, Interviewee 2 believed that ‘for many experienced arbitrators, the coursework is less important than taking care and taking time’. In particular, Interviewee 2 noted that ‘arbitrators need not to have too much on their docket [since] that creates errors’.

Concerns about time pressures also came up with Interviewee 1, a mixed international–domestic arbitrator who was also in favour of educational programming. Interviewee 1 believed that ‘many awards and decisions are poorly written’, largely because

too many lawyers are taught to write by law professors. Generally, law professors don’t have practical experience, so they write in a way that is not as helpful as it could be. Law review writing is like building a house: very structured, with the roof put on last.

Practical writing [is different.] Time pressures mean you get the roof up first and deal with the most important points even if it is not in logical order, then go back and fill in gaps. [You] write the important bits first in case you run out of time and space.

(p. 290) Interviewee 17, an international judge–arbitrator who was in favour of additional coursework, had a slightly different perspective on the question of judicial and arbitral education. S/he said,

To me, what is probably the most difficult is not to write but to conduct the process—you want to get a unanimous award, so you need to think about what concessions you can make and should make. Sometimes I make concessions and regret it. Writing is easy alone in my study.

Although many respondents supported increasing judicial and arbitral education, others noted certain difficulties that might arise with implementing such a plan. For example, Interviewee 3, an international arbitrator, believed that judges and arbitrators would ‘probably’ benefit from additional coursework, although

the reasoning of awards does not have an international standard, and it is not the same in all jurisdictions. So, any program on this would have to be aimed at different countries or groups of countries (for example, civil law versus common law countries), but not the whole world.

Other problems might arise as a matter of individual personalities. For example, Interviewee 6, a mixed international–domestic arbitrator, noted that s/he had attended a particular ‘program on drafting [and] got something from it, but lots of other arbitrators were arguing back against the suggestions. Overall, I’d say “sure”, if you self-select—it shouldn’t be mandatory. Should be voluntary.’

Other respondents also cast doubt on the usefulness of educational programming as a general proposition. For example, Interviewee 8, an international judge–arbitrator, said that ‘I suppose there are some who could benefit, but I tend to think it’s pretty simple, and most judges who have come to the bench with considerable experience at the bar should know how to do it’. Interviewee 15, a common law domestic judge–arbitrator, was equally sceptical, noting,

I don’t think judges need training. Most [national] judges are prominent, experienced lawyers who are presumed to know this type of thing, but the vast number of [local or regional] court judges who are selected in other ways probably could use some coursework.

For arbitrators—I don’t know enough. They often don’t have [decades of] experience on the bench, but they’re probably good and prominent lawyers.

When I [was acting as a judge and] chose a special master—they were good lawyers but had never written a judicial decision. They put too much of their thinking into the decision, and I told them to go straight to the decision.

Those who did not explain their motivation in their initial response were asked in a follow-up question why they did or did not support educational programming (p. 291) regarding legal reasoning. Responses varied, with some individuals focusing on systemic considerations. Interviewee 11, a common law domestic judge–arbitrator, was in favour of additional programming because ‘writing good decisions is an important thing—that’s how you communicate and gives integrity to the justice system, be it court or arbitration’. Interviewee 5, a common law domestic judge–arbitrator, was of a similar mind, saying,

It helps to have some conformity in how awards are written, both with respect to format and how the reasons are applied. Some institutions (AAA and JAMS) will look at draft awards and make suggestions on format or on how issues are addressed, but the more you know ahead of time, the better.

Other people focused on more individual concerns. For example, Interviewee 12, a common law domestic judge–arbitrator, believed that ‘those with training will generally do better and gain more respect in the arbitral community’. Interviewee 10, a common law domestic arbitrator, said,

First-level judges often do not have reasoning skills—I’m sorry but it’s true—and what I see is that they have taken the party briefs and used that as their order even if it doesn’t match up with the outcome. I don’t think they know what they’re doing. I don’t see that with appellate judges.

4.  Type of educational programming

The last question in this series asked what kind of programming respondents believed would be most beneficial for judges and arbitrators seeking to learn more about writing reasoned decisions and awards. The survey asked a similar question to allow for cross-study comparison.²²⁴

A number of individuals focused on the need to identify best practices in legal reasoning and drafting, such as through the provision of exemplars. Thus, Interviewee 19, an international arbitrator, suggested ‘being given models of what experts believe to be good awards in different categories of cases, as well as examples of bad awards. The ICC process of scrutiny goes a long way towards educating arbitrators on what are best practices. That’s why ICC and SIAC are valuable institutions.’ Interviewee 16, an international judge–arbitrator, similarly suggested that judges and arbitrators ‘study well-written and not-well-written awards and identify the problems’. Interviewee 2, an international arbitrator, also supported ‘courses that present best practices and warnings’.

Other respondents focused on the need for hands-on, experiential learning.²²⁵ As Interviewee 4, a mixed international–domestic arbitrator noted, ‘The most difficult programs are those that are hands-on, but they are an important component of any (p. 292) training process. Examples of things that can go wrong are also useful, but you learn the most from making the error yourself.’ Interviewee 5, a common law domestic judge–arbitrator, similarly stated that ‘interactive/experiential is good. Writing up your own draft awards and discussing those drafts with participants is valuable.’

Interviewee 10, a common law domestic arbitrator, provided some more tangible suggestions in this regard, indicating that the best courses involved ‘writing exercises: 15-minute fact vignettes followed by 30 minutes in which to do outlines. If you did six of those in a day, maybe with group or private critique, you could make forward progress.’ Interviewee 1, a mixed international–domestic arbitrator, ‘found the CIArb [drafting] course extremely valuable’ for precisely this reason, since ‘it goes through issues, makes you write, then critique’ your writing.

Other respondents focused on the substantive issues that they thought should be covered in judicial or arbitral education. For example, Interviewee 14, an international judge–arbitrator, said courses

need to be oriented to [actual] practice. I’m just back from [a developing nation], where I was a trainer for the High Court bench. They just adopted [certain international instruments and model laws, and] they needed the judges to be trained on how to interpret those documents. I spent a day talking about the difference between litigation and arbitration at the interlocutory and final level.

Interviewee 11, a common law domestic judge–arbitrator, said that instructors should focus on teaching judges and arbitrators ‘how to put the square peg in the square hole. Don’t ramble. Keep focused. I’ve seen people give the whole history of contract law. No one wants to pay for that or read it. It makes you look like a fool.’ Interviewee 2, an international arbitrator, said that it ‘depends on who you’re targeting. If new arbitrators, then focus on: one, required elements for enforceability; two, overturned cases—what mistakes are made. Scare tactics lodge deeply in their minds.’