What were you, professionally, before you started working as an arbitrator?

I worked as an advocate at law firms in New York and San Francisco for 10 years, specialising mainly in international commercial arbitration and in complex commercial, securities and IP litigation before United States courts. I took my first domestic arbitral appointment in 2002 but did not actively focus on growing an arbitration practice until 2014.

What other professional roles do you still have?

I am a tenured Professor of Law at Loyola Law School, Los Angeles, where I teach arbitration, mediation, contract law, cross-cultural dispute resolution and international business transactions. I am also a professorial research associate at SOAS School of Law, University of London. Outside of my academic work, I only serve in a neutral or consultative capacity; I do not accept any work as an advocate in disputes.

Do you have or tend to work with a back office?

I have a full-service support team at JAMS. I also have access to research assistants and proof-readers, although I have never used them thus far.

Do you like to use a tribunal secretary?

No.

How much does your approach vary, case to case?

Every case is different, and one of the advantages of arbitration is the ability to tailor the process to the particular dispute. Nonetheless, I do adhere to some overarching principles that I believe set me apart:

First, I think of myself as a ‘managerial arbitrator.’ I believe the arbitrator bears crucial responsibility for ensuring that the case gets to a hearing on the merits as efficiently and fairly as possible, without getting bogged down in unnecessary delays and technicalities. This requires active case management, especially where the parties disagree sharply. I am not afraid of making bold decisions where necessary to safeguard the efficiency and fairness of the process.

Second, I think arbitrators sometimes focus on achieving speed and cost savings too much, at the expense of achieving accurate and fair results. I see my role as balancing these two equally important, efficiency- and justice-based values. To promote accuracy, I routinely distribute tentative orders prior to telephonic hearings on substantive or procedural issues that have been submitted to me. In high-stakes cases, I will offer a ‘draft award’ procedure if both parties desire it, which can help ferret out errors, given that there is generally no substantive review of arbitral awards in national courts.

Third, although party autonomy is important, in my experience too much autonomy can occasionally make for a sub-optimal process. I think my value-added can sometimes lie in prodding parties to reconsider procedures they have jointly agreed to, especially where I have reason to believe those procedures may be counterproductive. Stipulations for broad, litigation-like discovery are an example of something that I might challenge parties to reconsider.

What is your approach to proposing settlement mid-case?

Proposing settlement during an arbitration can be beneficial but it also poses many ethical problems. At the beginning of a case, I always encourage parties to consider mediation with a third party and I spend some time explaining the benefits of mediation. I also make it clear, however, that mediation is completely voluntary and that I will draw no adverse inferences from a good faith and reasonable refusal to mediate.

During the preliminary hearing, if I get the sense that the parties are already considering settlement as an option, I ask if there are procedures that we can build into the arbitration that could help catalyse a settlement (eg, a preliminary ruling on a contentious legal issue). However, I would never propose to sit as the mediator in the same dispute. Parties have sometimes asked me to do so on their own volition; in this case, my practice is to have them execute a stipulation to ‘arb-med-arb’ that calls their attention to many of the risks of combining arbitration with mediation.

What is your approach to identifying potentially dispositive issues early?

I have had many experiences with counsel who seek to file a dispositive motion. My practice is to have counsel file a short, three-page (single-spaced) letter brief requesting leave to file such a motion. In the letter brief, I ask counsel to explain how granting leave would improve either the efficiency or fairness of the proceeding. I am all in favour of dispositive issues being decided early where possible; however, I tend not to grant leave to file a dispositive motion unless the motion turns largely on legal issues that do not require me to make findings of material facts (especially disputed ones). The reasons are that (1) deciding material factual issues in advance of the hearing may jeopardise the integrity of the Final Award and (2) if leave is granted but the motion is denied, it just delays getting to a hearing on the merits.

What is your approach to indicating the strengths or weaknesses of cases early?

I do not do so unless both sides ask for it and I have reason to believe that this can help narrow down the issues for adjudication or catalyse settlement discussions. I am concerned this will affect my neutrality or the appearance of my neutrality, both of which I consider to be of utmost importance.

How often do you use the IBA rules of evidence? Will you do it against one side’s wishes?

I have never used the IBA rules because I have not had an evidentiary issue arise where the parties both wanted me to apply the IBA rules or the circumstances were such that I had the choice to apply them. I would only apply the IBA rules against one side’s wishes if there was an independent basis to do so (such as a fair inference from the terms of the arbitration clause) or I had reason to conclude that the rules were broadly reflective of the expectations in both parties’ home jurisdictions.

Do you encourage the use of skeleton arguments?

Typically, the issues are fully briefed before a hearing and I do not require skeleton arguments in addition to the briefs. In any event, in the case of oral arguments on pre-hearing issues, I typically circulate a tentative ruling in advance (see above).

Do you encourage the use of discovery?

Although I am receptive to reasonable discovery requests subject to the considerations below, I would not say I encourage discovery. I tend to be more sceptical than most American-trained arbitrators about the practice.

Discovery can certainly be an important tool for levelling the playing field where the parties have grossly asymmetric access to crucial evidence. It can also help parties get a better valuation of the case for purposes of settling early. But discovery can also be intrusive, wasteful and expensive in ways that far outweigh its benefits. My approach will therefore depend heavily on the nature of the case and the actors involved.

As a co-arbitrator – will you ever consult with the party who appointed you on the identity of the chair?

Yes. The party appointing me will often have criteria or preferred characteristics for the chair, which will be important for me to take into consideration. I will, however, first (1) review the relevant agreements and rules to ensure that consultations with the appointing party are permitted, and (2) confer with my co-arbitrator first before any consultations take place. I believe it is important to work with the co-arbitrator to ensure that the selection process is fair and leads to the choice of the best candidate as chair. I also think it is important for all parties/co-arbitrators to know whether the party-appointed arbitrators are consulting with their appointing parties on this subject. Finally, my policy is to make clear that consultations be strictly limited to the selection of the chair and not extend to a discussion of the merits.

As co-arbitrator – are you in favour of the parties interviewing candidates for chair that you have identified before any final appointment?

No. There is too much of a risk of information being communicated to the candidate that could jeopardise the integrity of the Final Award. To the extent interviewing a candidate for chair is necessary, it should be a transparent process in which both co-arbitrators participate equally. In appropriate circumstances, parties and counsel may be included in such a process.

What is your preference on the presentation of evidence?

Although I am trained in the common law tradition, I do not believe that in-person oral testimony is always required or optimal. I think that efficiencies can often be gained where, for example, documentary evidence and witness statements (with live cross-examination) are submitted in lieu of in-person direct testimony. I also prefer to take a slightly more active role than the typical common law judge/arbitrator in making suggestions about the evidence to be presented to avoid duplication or unnecessary time wasted on proving either tangential issues or issues that could be stipulated to.

I would not impose my own preferences regarding any of the above if both parties preferred otherwise, however.

What is your approach to counsel misconduct? Do you prefer to deal with it there and then or to wait until the end of the case?

I have been fortunate not to have a misconduct issue arise. I would, however, deal with it immediately to send a strong signal about my expectations for the remainder of the proceedings.

What is your usual approach to costs?

The allocation of costs is typically a matter of agreement, institutional rules, or governing law. If none provides an answer, I would look to the prevailing expectations in the parties’ home jurisdictions. In the case of a conflict, my default would be that each side should bear its own costs.

What is a ‘normal’ turnaround time for you to deliver an award (assuming no exceptional circumstances)?

Within 30 days.

Would you describe your procedural style as closer to common or civil law?

My procedural style is closer to the common law, although as noted above I have my own reservations about certain aspects of common law adversarialism, especially as practised in the US. My ‘managerial’ approach to arbitration is also consistent with the model of equity courts, which actually originated in the civil law tradition. As compared with common law procedure, equity procedure envisions a more active role for the neutral.

What is your policy on cancellations?

• One hearing day scheduled: 14 days.
• Two to four hearing days scheduled: 30 days.
• Five or more hearing days scheduled: 45 days.

Have you ever been challenged? Is it reported?

No.

How booked up do you tend to be?

I typically have about 20-30 active matters (international and domestic) at a time. Many are domestic cases that settle prior to a hearing. Nonetheless, I work quite efficiently and my caseload has never interfered with my ability to shepherd disputes through to a speedy conclusion.

Are there any types of appointment or case that you prefer not to accept (eg, construction disputes, investor appointments in investor-state disputes)?

No.

Do you have any particular areas of specialist knowledge (legal or industry-related)?

• Subject matter expertise: Contracts (I am a contracts law professor); business torts (fraud, breach of fiduciary duty, disparagement, unfair competition, etc); securities and financial markets; corporate/partnership/JV; agency/distributorship/franchise; intellectual property; professional liability; employment.
• Industry expertise: Energy (incl. renewables, LNG); banking and financial services; technology/software; internet and e-commerce; telecommunications; entertainment; hospitality; gaming and e-sports; healthcare.