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

Before I retired from the partnership at Fried Frank, I was a partner and head of the Fried Frank International Arbitration Practice Group. I established the practice and led it for 25 years. During that period, I divided my time between the Washington and Paris offices of the firm. While head of the practice, I acted mainly as counsel in international arbitrations, but I also was able to sit as arbitrator on average in about three cases per year.

What other professional roles do you still have?

I am currently an independent arbitrator, having retired from Fried Frank.

Do you like to use a tribunal secretary?

I have sat as arbitrator in a number of cases where the tribunal chair recommended and obtained approval for the appointment of a tribunal secretary. My personal view is that appointments of tribunal secretaries are appropriately reserved to significant cases with voluminous documents and that the secretary's role should be to assist in the administration of the case.

How much does your approach vary, case to case?

How a case should proceed depends very much on the circumstances of the case, taking into consideration the views of the parties and their counsel in particular. It is after all the parties who are the consumers of arbitration services and it is their arbitration at the end of the day. In short, there is no ‘one size fits all’ way of doing things and the details of the procedure should be worked out cooperatively among the parties, their counsel and the members of the tribunal. Of course at the end of the day, if the parties have differing views of elements of the procedure, then the tribunal will need to decide.

What is your approach to proposing settlement mid case?

I understand that such an approach is used in certain jurisdictions, but I do not do that.

What is your approach to identifying potentially dispositive issues early?

In my experience, if parties believe there are potentially dispositive issues, they bring them to the attention of the tribunal. Counsel are sometimes more enthusiastic for the potential to dispose of claims, or even the entire case, than the circumstances may warrant. Tribunals should be open to opportunities presented by the parties to streamline a case, but they should act prudently so as not to deprive a party of its right to have its claims fully heard.

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

I do not take it upon myself to indicate to parties the strengths and weaknesses of the parties' respective positions.

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

Where the parties have agreed that the IBA rules of evidence apply, they will be applied. Often the parties agree only that the rules will be considered guidance to the tribunal. I have not had experience with one party saying that the tribunal may not refer to the IBA rules as a source to be considered. The reality is that the IBA rules are a recognized source reflecting good international practice so they will normally be considered even where the parties have not agreed on their applicability. What is more common than a difference over whether the IBA rules may be considered is a difference of viewpoint on how the IBA rules are to be applied in a particular case. In my view, application of the rules will depend on the facts and circumstances of the parties and their contractual relationship, including their legitimate expectations on issues such as disclosure. The approach may well be different when there are two civil law parties versus two common law parties and different again if there is one of each. All of the surrounding circumstances will need to be taken into account.

Do you encourage the use of discovery?

I do not encourage the use of discovery. Parties typically come to the tribunal with positions on what disclosure of documents is warranted in their case and those positions will need to be evaluated in light of the particular circumstances.

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

Often the two party-nominated arbitrators will consult with their respective nominating parties on the identity of the chair. This is done on the basis of agreement of the two sides. I have not had a case where one party wanted to have its party-nominated arbitrator consult with it but the other party was opposed.

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

The specific language of the arbitration clause will need to be considered. If the selection of the chair has been given to the party-nominated arbitrators, there is some risk that an interview by the parties (and their counsel) could upset the process and undermine the responsibility of the two arbitrators to select the chair. However, if the parties agree to such interviews and both sides participate in the process in good faith, then it should be acceptable. If such an interview process were to become a vehicle to thwart selection of the chair by one of the parties, then the party-appointed arbitrators would need to re-take control of the process, but I have not encountered such a problem in my experience.

What is your preference on the presentation of evidence?

Again, there is no ‘one size fits all’ solution. In most international cases, the parties use witness statements to put in their direct testimony (with some allowance for brief introductory and updating direct testimony), with the hearing devoted largely to cross examination and re-examination (re-direct). For expert evidence, in the typical case experts prepare reports in advance. Here I think there is room for a more comprehensive questioning of the expert (or presentation by the expert) on direct in the hearing, followed by cross examination and re-examination, as well as expert witness conferencing in appropriate cases.

This methodology has come in for some rather sharp criticism in recent years from prominent arbitrators. However, in my view, it generally works well. That said, there may be circumstances where it will be desirable to depart from this model, particularly where the parties are agreed that a different approach is preferred, and the arbitrators should not be dogmatic about sticking to the usual approach.

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

In my experience as arbitrator, I have seen little of what I would consider to be serious counsel misconduct. More frequently, the issues that arise include excessive disclosure requests (which are readily handled through the Redfern schedule process), squabbling among counsel, unwarranted characterizations of opposing counsel's conduct or the other side's positions, and the like. Admonitions to counsel of the tribunal's expectations regarding counsel conduct have normally been sufficient. Were I to confront serious misconduct of the type one reads about from time to time, I would be prepared to draw adverse inferences and to shift costs where appropriate to do so.

What is your usual approach to costs?

Decisions on costs depend first on whether the tribunal's authority to award costs is countermanded in the parties' arbitration agreement or whether the applicable law addresses the cost issue. Assuming normal tribunal discretion, the prevailing party will often be entitled to an award of its reasonable costs. The key is to decide which party has prevailed and the extent to which the party has prevailed in light of its claims or defences. Where a party has prevailed and its costs are reasonable, then that party should normally be entitled to recover its reasonable costs.

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

When I sit as sole arbitrator, I normally expect to complete my award in 30 days from closure of the record. When I chair a three member tribunal, I normally deliver the award within 60 days, but to some extent one is impacted by the practices of one's fellow arbitrators. When I am a wing in a three-member tribunal, I react very quickly to the draft so as not to delay the tribunal's progress. Similarly, if I have been asked to draft a portion of a three-member tribunal's award, I react very quickly in that circumstance as well.

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

I am common law trained, but I have done many cases where a civil code jurisdiction supplied the applicable law and/or where the parties were from civil code jurisdictions, the other members of the tribunal were from civil code jurisdictions, and one or both counsel was civil code trained. I am comfortable with both legal cultures and find that most of my cases reflect an amalgam of common and civil law practices.

What is your policy on cancellations?

Where the tribunal is paid on the basis of an hourly rate, I charge a cancellation fee for hearings on the merits that are cancelled within 30 days of the scheduled start date because the case settles.

Have you ever been challenged? Is it reported?

No. At the appointment stage, upon making disclosures, there have been two cases where my nomination did not go forward.

How booked up do you tend to be?

I am comfortably busy. If I am asked to serve and believe that I cannot accommodate a reasonable timetable in line with the parties' needs, I will so advise the party considering my nomination.

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

No.

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

I have substantial experience in the energy sector and have handled cases involving all aspects of energy companies' businesses (upstream, midstream, downstream). This work has necessarily involved major projects and accordingly construction disputes, so that I have substantial construction experience as well. In addition, I have done many cases over the years in the aerospace and defence, satellite, telecoms, technology, pharmaceutical, accounting and hospitality sectors. I have addressed all manner of contractual relationships in these and other fields, including merger and acquisition, joint venture, cooperation, distribution, licensing and other commercial agreements.