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

I was a litigation partner at White & Case LLP, based in New York.

What other professional roles do you still have?

I am a full-time arbitrator and mediator, devoting most of my practice to arbitration as the principal of SussmanADR, LLC. I also serve as the Distinguished ADR Practitioner in Residence at Fordham University School of Law. In that role I give guest lectures in classes and symposia, advise students, and co-chair the annual Fordham International Arbitration and Mediation Conference. I am active in many arbitration related organizations and recently served as chair of the AAA-ICDR Foundation, as Chair of the New York International Arbitration Center, and as a board member of the American Arbitration Association. I currently serve on the ICC US Nominations Commission and on the Advisory Board of the ICC Task Force on Arbitration and ADR. For the last 14 years and continuing I have served as a co-editor of the New York State Bar Association Dispute Resolution Lawyer publication.

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

No. I do have a webmaster and a technical support consultant.

Do you like to use a tribunal secretary?

No.

How much does your approach vary, case to case?

Each case is unique and requires individualized attention to organize and conduct a process that meets the needs of the parties in the context of the specific dispute. Apart from bedrock principles such as affording the parties the opportunity to fully and fairly present their case and ensuring the impartiality and independence of the arbitrators, the arbitration process is best conducted on a “no assumptions” basis. If the parties prefer a traditional process with multiple rounds of memorials, witness statements, disclosure after the first round of memorials, etc., and that process makes sense in the context of the case before me, then it will be conducted that way. Similarly, if the parties are looking for a more streamlined process, and that process makes sense in the context of the case before me, then it will be conducted that way. I like to examine a range of options with the parties at the first preliminary hearing/case management conference to review the many options for streamlining the process.

What is your approach to proposing settlement mid case?

As a general matter, I do not propose settlement mid-case. However, this is a matter for discussion with the parties to ascertain their preferences. Moreover, in some cases, there is a route to prompt resolution and in those cases I am proactive, discussing with the parties whether and how motions should be entertained, whether and how to facilitate a settlement within the arbitration and/or recommending that they pursue mediation separately. In rare cases, I will serve as the mediator, with thorough informed consent, if that is desired by the parties. In all cases, I raise the subject of introducing mediation windows into the procedural timetable for the arbitration at my first meeting with the parties and encourage them to include a mediation window.

What is your approach to identifying potentially dispositive issues early?

I am in favour of addressing potentially dispositive issues early in the case and have written on the subject. I always discuss dispositive motions with the parties at the first preliminary hearing/case management conference. That conversation has several objectives: (1) to identify motions the parties are contemplating making; (2) to discourage frivolous, time-consuming and expensive motions; (3) to set up an appropriate schedule for motions that appear potentially meritorious; and (4) to talk to the parties about other issues that could be resolved early and thus potentially facilitate an earlier settlement and consequently a more efficient and cost-effective process. My first procedural order always requires that before any unscheduled dispositive motions may be filed, a short letter requesting leave must be submitted explaining why the motion is likely to succeed and how it would streamline proceedings.

I believe we need to carefully control the development of motion practice in international arbitration. All motions must be vetted before they are submitted to ensure that they have a significant likelihood of success and that they would in fact serve to streamline the proceedings. For example, a successful motion which eliminates one legal theory, but leaves in place legal theories which require the same factual presentation at the hearing and afford the same damages claims is not, in my view, a productive motion and should usually not be allowed.

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

Again, I am responsive to the desires of the parties. There can be stylistic and cultural differences in the receptivity of counsel and parties to an early identification by the arbitrators of strengths and weaknesses of their cases. There can be differences within the tribunal as to individual arbitrators’ willingness to disclose to counsel their initial impressions before counsel have had a fuller opportunity to develop and present their cases. Some arbitrators are also concerned about confirmation bias, the unconscious psychological effect of, once expressing one’s views, only hearing that which confirms that view. All of these different perspectives need to be considered in deciding whether such early indications would be appropriate. However, it is often very helpful both to the tribunal and the parties to discuss and identify what is of interest to the tribunal for further development and presentation of the case, as opposed to indicating strengths and weaknesses.

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

I find parties are generally receptive to using the IBA Rules of Evidence as guidelines in international arbitrations. If one party does not agree to using them, I will not include them in the first procedural order. However, I generally advise counsel that it is useful for the tribunal to have a set of rules to serve as guidance and invite counsel to read the rules, reconsider and report back before the first order is issued. I am then guided by the counsel's decision.

Do you encourage the use of skeleton arguments?

I do not require the use of skeleton arguments, nor do I object to their use if that is the preference of counsel. I do ask parties to identify their 20 most significant documents and find that helpful.

Do you encourage the use of discovery?

I do not encourage the use of discovery/disclosure but in virtually all of my cases some discovery/disclosure is requested. I believe it is the arbitrator’s job to work with the parties to limit discovery to those materials that are truly material to the determination of the issues presented in the case and are proportional to the amount in controversy.

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

Yes. Unless there is a specific constraint in the arbitration agreement or in the rules pursuant to which the arbitration is being conducted or otherwise. I assume discussions with the appointing party about the identification of the chair to generally be the norm in my arbitrations.

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

If this question is intended to address whether the parties should together interview prospective chairs, if the candidate being considered is a person not well known to both of the co-arbitrators and/or to their appointing parties, I find the interview of the prospective chair by all jointly extremely useful. I often conduct such interviews with my co-arbitrator after we have narrowed the potential field to two or three prospective chairs. I find those conversations critical to learning more about the prospective chair’s case management style, preferences on various procedural matters, collegiality, inclusion, etc. so that we can have greater comfort that we have a good match and a tribunal that will be able to work well together.

What is your preference on the presentation of evidence?

In international arbitration there is, in my view, a presumption that written witness statements will be used and that upon request by the opposing party the witnesses will be made available for cross-examination. Accordingly, in international cases, presentation of evidence is almost invariably presented through witness statements with the appended exhibits. Whether witness statements are used for all or some of the witnesses may, however, vary in some cases depending on the preferences of the parties. In a U.S. domestic case, I inquire first of my fellow arbitrators if they have a preference as between witness statements and live direct testimony and, if all are comfortable, inquire of counsel if they wish to utilize witness statements, as courts in the U.S. are increasingly doing in cases presented for bench trials.

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?

Counsel misconduct should be dealt with when it arises and counsel should be advised of potential consequences for misconduct when it first occurs. Generally, I prefer determining any sanctions or costs consequences at the conclusion of the arbitration as many things can happen as the case develops. Where counsel appearing in the arbitration are from different jurisdictions with different ethical obligations, it can be useful to raise the matter at the first meeting with counsel and to establish a common understanding as to how counsel intend to proceed with respect to areas in which there are differences.

What is your usual approach to costs?

My approach to costs varies depending on whether it is a U.S. domestic arbitration or an international arbitration. In an international arbitration there is a general expectation that costs will be awarded to the prevailing party. That is an expectation to which I give deference. The ultimate decision on the allocation of costs will depend on a variety of factors. If it is a U.S. domestic arbitration, absent a cost shifting provision in the arbitration agreement, a request by both parties for an award of costs, or egregious behavior by any counsel or party, parties generally bear their own attorneys’ fees and expenses and the costs of the arbitration are split among the parties.

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

Having started my practice as an arbitrator at the AAA many years ago with its 30 day turnaround requirement for awards, I am accustomed to making sure that my awards are issued promptly. International institutional rules, of course, generally permit more time, often helpful in a three person tribunal. Absent exceptional circumstances, such as requests from the parties for delays for business reasons, all of my awards have been issued no later than 90 days from the final submission or argument and generally within 30-60 days.

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

Bearing in mind that this is arbitration and that proactive case management by the arbitrator is expected and desirable to reduce time and cost as appropriate, my procedural style is closer to common law than civil law. However, each arbitration must be individualized and responsive to the parties, their counsel, their preferences and the nature of the case. There are no cookie cutters. How an arbitration can be best conducted to maximise efficiency and yet provide a full and fair opportunity for the parties to present their case must be developed in each case through discussions with the parties. I am flexible and sensitive to the variations in cross cultural preferences and expectations and take great care to tailor my arbitrations accordingly. There can be dramatic differences in expectations between parties from different jurisdictions and different legal traditions, most often, although not invariably, most significant in civil law vs. common law. The differences can be pronounced and must be recognized and are honoured by me in the way arbitration is conducted in all phases from the pre-hearing procedures, to the document disclosure obligations, to the hearing, to the nature of the award issued.

What is your policy on cancellations?

I currently have no cancellation policy. I had one some years ago, but did not like charging parties for doing nothing and rarely exercised my right to payment. It is not likely that I will reinstate a cancellation policy but that could change.

Have you ever been challenged? Is it reported?

Objections have been lodged prior to my appointment at the beginning of a few AAA/ICDR cases when I was selected from an AAA/ICDR list and I was removed in some instances after I made my disclosures. I was not informed of the basis for those objections and am not aware if objections were entered that were denied. I know of one challenge in a New York state court early in a case in which I was party appointed, following a challenge and a denial by the institution in the arbitration. The challenge was denied by the court. The decision was filed under seal. I know of one case in which a petition to vacate an award was filed in a New York court based on challenges to me and one of the co-arbitrators. The award was confirmed and sanctions were issued against the moving party. It is not a reported decision.

How booked up do you tend to be?

I generally carry approximately 15 arbitrations at a time. I am able to make time available for a hearing within a matter of just a few months.

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

I sit as an arbitrator in a broad range of commercial arbitration. I have not arbitrated any investor state arbitrations.

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

I have a broad-based arbitration practice and handle disputes concerning a wide variety of legal issues that arise in many industry sectors. Arbitrations I handled have focused on the following areas: Commercial contracts, pharmaceuticals and life sciences, intellectual property, mergers/acquisitions, intellectual property, franchises/distributorships, partnerships and joint venture, telecommunications, energy, environment, financing and banking transactions, accounting, insurance, securities, , aviation and professional liability.