Journal of International Dispute Settlement, Vol. 1, No. 1 (2010), pp.

25–53
doi:10.1093/jnlids/idp004
Published Advance Access January 16, 2010

Arbitrators and Accuracy

WILLIAM W. PARK*
An arbitrator’s primary duty remains the delivery of an accurate award, resting on a
reasonably ascertainable picture of reality. Litigants wanting only quick or cheap
solutions can roll dice, and have no need of lawyers. Evidentiary tools in arbitration
should balance sensitivity towards cost and delay against the parties’ interest in due
process and correct decisions. If arbitration loses its moorings as a truth-seeking
process, nostalgia for a golden age of simplicity will yield to a clarion call for
reinvention of an adjudicatory process aimed at discovering what happened, finding
relevant legal norms and properly construing contract language. Though not so
jealous as to exclude all rivals, truth does insist on being first among equals.

1. A View from the Hilltop

Often called the first European novel, Don Quijote de la Mancha weaves
together the idealistic quests of a slightly delusional Spanish gentleman who
saw himself as a knight errant long after the age of chivalry had ended. A
Moorish enchanter had recorded the Don’s adventures, defeats and victories.
At one point in the story, the Don objects to narratives of his defeats, arguing
that heroes deserve praise, not scorn. After all, he adds, Virgil embellished the
piety of Aeneas just as Homer enhanced the wisdom of Odysseus. In response,
a young scholar suggests two different ways to view the world. A poet can say
things as they ought to have been, whereas the historian must write things as
they were.1
Like historians, arbitrators normally focus on things as they were, seeking the
most reliable account of the controverted events giving rise to the claims. In
deciding disputes accurately, arbitrators promote the type of promise-keeping
that underpins the positive economic teamwork that marries public and private
welfare.
* Professor of Law, Boston University. General Editor, Arbitration International.
1
Sansón the scholar says, ‘It is one thing to write like a poet, another like a historian. A poet can say or sing
things not as they were, but as they should have been. The historian should write them down not as they should
have been, but as they were, without adding or omitting anything.’ (‘Pero uno es escribir como poeta, y otro
como historiador: el poeta puede contar o cantar las cosas, no como fueron, sino como debı́an ser; y el
historiador las ha de escribir, no como debı́an ser, sino como fueron, sin añadir ni quitar a la verdad cosa
alguna.’) Miguel de Cervantes, Don Quijote de la Mancha, Segunda Parte Del Ingenioso Caballero, Capı́tulo III
(1605 and 1615), Edición del IV Centenario (2004). Ibid at 569.
ß The Author 2010. Published by Oxford University Press. All rights reserved.
26 Journal of International Dispute Settlement
Often underrated or misjudged, truth has dispatched more than one mind
beneath the intellectual storm waves of a giant analytic sea, and anyone
venturing to explore its contours must do so with fear and trembling.2 Yet
truth-seeking lies at the core of what arbitration is about, and cannot long be
avoided in any serious discussion of the subject.
Several levels of inquiry present themselves. A panoramic perspective from
6,000 meters (20,000 feet for American alpinists) might examine reality in an
abstract way. With varying degrees of sincerity, thinkers since antiquity have
asked, ‘What is truth?’3
By contrast, lawyers in the litigation trenches consider ways that rival
versions of truth influence the judges, juries and arbitrators who decide cases.
This vista includes the art of advocacy and tools to persuade decision-makers
that one view of the case has more merit than another. In the common law
tradition such communications implicate rules of evidence intended, albeit in
part, to enhance the prospect of reaching a correct conclusion.
Finally, a view from the hilltop (somewhere between the trenches and the
Alpine peaks) looks at how goals other than truth-seeking enter the equation.
Examining documents and listening to witness testimony will cost time and
money. At some point, the additional enlightenment to be gleaned from more
information will be offset by the value of finality and economy. The present
essay explores this last line of inquiry, looking at how truth-seeking balances
against sensitivity to speed and economy in arbitration.
Accuracy in arbitration means something other than absolute truth as it
might exist in the eyes of an omniscient God. In examining the competing
views of reality proposed by each side, arbitrators aim to get as near as
reasonably possible to a correct picture of those disputed events, words, and
legal norms that bear consequences for the litigants’ claims and defences. They
recognize that some answers are better than others, even if perfection proves
elusive.4

2
The 19th century Danish philosopher Søren Kierkegaard popularized the expression in Frygt og Bæven, the
title of which was lifted from a line in Philippians 2:12 where Paul encourages his readers to ‘work out your
salvation with fear and trembling’.
3
Among the more well-known examples, Pontius Pilate posed the question at the trial of Jesus, but without
bothering to stay for an answer. John, Ch. 18. A quip about ‘jesting Pilate’ served the English jurist Francis
Bacon in opening his essay, Of Truth (1601). In The Antichrist, Friedrich Nietzsche called that question the only
one of value in the New Testament. More recently, Andrew Lloyd Webber and Tim Rice worked the question
into the rock opera, Jesus Christ Superstar, and country singer Johnny Cash used it as the title of a 1970 hit single.
The discipline of epistemology explores truth in ‘correspondence theory’ (asking whether a statement
corresponds to reality) and ‘coherence theory’ (asking whether one statement is coherent with others). See
George Pitcher (ed.) Truth (1964).
4
In this connection, not all questions pose the same epistemological challenges. Determining why a marriage
failed is not the same as deciding whether goods arrived, an employee received her salary, or a landlord refunded
a tenant’s security deposit. Moreover, the apparent relativity of truth often derives simply from imprecision in
language or from different angles of perception, as when Australians say that winter starts in June while
Bostonians assert that the season arrives in December. Although contradictory on their face, each statement bears
some relationship to the realm of reasonably ascertainable reality.
 Arbitrators and Accuracy 27
Such truth-seeking relies principally on documents, human recollection, and
expert opinion. For complex commercial and investment cases, the process
does not necessarily come quickly or cheaply. Of all the goals that compete
with adjudicatory truth-seeking, few have been more challenging than speed
and economy. Indeed, time and cost often appear as the enemy, interfering
with efficient arbitration.
On more mature reflection, however, time may prove the friend and patron
of good arbitration rather than its enemy.5 Although justice delayed can mean
justice denied, a sense that truth matters remains vital to a perception that
justice is being done. Arbitration becomes a lottery of inconsistent and
unpredictable results without some investment of the time and money required
for a rigorous search for facts and law in which litigants receive a meaningful
opportunity to present their cases. Success in arbitration is not measured by a
stop watch alone.
Much of the criticism of arbitration’s cost and delay thus tells only half the
story, often with subtexts portending a cure worse than the disease. An
arbitrator’s main duty lies not in dictating a peace treaty, but in delivery of an
accurate award that rests on a reasonable view of what happened and what the
law says. Finding that reality in a fair manner does not always run quickly or
smoothly.
Although good case management values speed and economy, it does so with
respect for the parties’ interest in correct decisions. The parties have no less
interest in correct decisions than in efficient proceedings.6 An arbitrator who
makes the effort to listen before deciding will enhance both the prospect of
accuracy and satisfaction of the litigants’ taste for fairness. In the long run,
little satisfaction will come from awards that are quick and cheap at the price of
being systematically wrong.
To fulfil its promise of enhancing economic cooperation, arbitration must
aim at an optimum counterpoise between truth-seeing and efficiency. Just as a
restaurant can fail to provide an agreeable dining experience either by serving
bad food or by making customers wait too long for their meal, arbitrators fall
short of their duty by neglecting procedures that promote correct awards, just
as much as by failing to calibrate the expenditure of time and money.
If arbitration loses its moorings as a truth-seeking process, nostalgia for a
cheerful golden age of quick results will yield to calls for reinvention of an
adjudicatory process aimed at actually getting the facts and the law. Though
5
One ancient adage holds that truth is the daughter of time: Veritas filia temporis. A second century Roman
grammarian attributes the saying to an unnamed predecessor: ‘Alius quidam veterum poetarum, cuius nomen
mihi nunc memoriae non est, Veritatem Temporis filiam esse dixit.’ (Another ancient poet, whose name I have
forgotten, said that Truth was the daughter of Time.) Aulus Gellius, Noctes Atticae, XII.11.7.
6
One study found litigants rated a ‘fair and just result’ in arbitration above other considerations including
cost, finality, speed, and privacy. See Richard W Naimark and Stephanie E Keer, ‘International Private
Commercial Arbitration: Expectations & Perceptions of Attorneys & Business People’ (May 2002) 30 Int’l Bus
Lawyer 203. The eight ranked variables included speed, privacy, receipt of monetary award, fair and just result,
cost-efficiency, finality, arbitrator expertise and continuing relationship with opposing party.
28 Journal of International Dispute Settlement
not so jealous as to exclude all rivals, truth does insist on remaining first among
equals, as the principal objective of the arbitral process.

2. Rivals of Award Accuracy

A. An Era of Disenchantment
On a small street in downtown Boston stands a shoe repair shop with a
proactive approach to customer complaints. In the window, an equilateral
triangle links three options: fast service, low price, high quality. ‘Pick any two’,
patrons are advised.
The price of such trade-offs may be missing from much of the current
nostalgia for a bygone golden age of cheap and cheerful arbitration. Much is
said about the business community’s disenchantment with arbitration.7 The
critics devote less energy grappling with how to achieve efficiency without
sacrificing accuracy, or addressing the dissatisfaction that would follow a shift
away from truth-seeking as arbitration’s principal aim. It has become
commonplace to lamenting that the arbitral process now resembles the
inheritance dispute satirized in Bleak House, described as ‘so complicated
that no man alive knows what it means’.8 Reportedly, some lawyers call
international a ‘monster,’9 while others ridicule detailed rules.10 A ‘scorched
earth’ policy is said to taint many proceedings.11 Commentators urge a model

7
See generally the series of articles presented in Volume 2, No 5, of World Arb & Med Rev, with an
excellent introduction by Christopher R Drahozal, ‘Disenchanted? Business Satisfaction with International
Arbitration’ Ibid 1. For a thoughtful Continental view on arbitration’s rival objectives, see Matthieu de Boisséson,
‘New Tensions Between Arbitrators and Parties in the Conduct of the Arbitral Procedure’ (2007) Intl Arb Law
Rep 177. At the 2008 Congress of the International Council for Commercial Arbitration, in connection with a
discussion of reasoned awards, no less an eminence than Fali Nariman spoke of the loss of arbitration’s emphasis
on decision of the individual case. ICCA Congress, Dublin, 10 June 2008, Working Group B, Current
Developments. In response, another leading light, James Carter, asked whether there was really any consensus
about what was golden in the bygone Golden Age. See ‘Quo Vadis Arbitration?, Recent Developments in
International Arbitration’ in Catherine Kessedjian and William W Park (eds), Fifty years of the New York
Convention, 633ff, ICCA Congress Series No. 14, Proceedings of June 2008 Dublin Conference (2009). Dr
Nariman suggested, ‘The dark side [of arbitration’s evolution] is that we are sacrificing the main goal of
arbitration-which has always been intended as a resolution of disputes.’ Mr Carter commented that many users of
arbitration are ‘always operating on the basis of the last bad thing that happened to them’. Ibid, 635.
8
Charles Dickens, Bleak House (1853). Litigation costs in Jarndyce v Jarndyce ultimately consumed the
entire estate, with despair causing one legatee to blow his brains out at a Chancery Lane coffee house, while
another expired in hopeless dejection.
9
‘World-beating Arbitration Hub Envisaged, Legal Affairs’ (23 October 2009) Australian Financial Review
20, quoting Toby Landau, a London QC who had just delivered the Clayton Utz Lecture in Sydney.
10
See Serge Lazareff, Avant-propos: Le bloc-notes de Serge Lazareff, 124 Gazette du Palais: Cahiers de
l’arbitrage 3 (No. 338/339, 3 and 4 December 2004). Likening procedural guidelines to a loathsome skin disease
(le prurit réglementaire), Me Lazareff posits lawyers consulting a hypothetical Code of Arbitral Conduct that
stipulates the number of bathroom breaks allowed as a function of hearing time.
11
See discussion in Klaus Peter Berger, ‘The Need for Speed in International Arbitration’ (2008) 25 J Intl
Arb 595, commenting on the new DIS Supplementary Rules for Expedited Proceedings. Professor Berger goes
on to note that arbitration may well be more suited than court proceedings to the resolution of complex
cross-border business disputes, but that the complexity can add time and cost.
 Arbitrators and Accuracy 29
that is ‘simpler, quicker and more basic’12 to replace the unfortunate ‘legalism’
and ‘judicialisation’ that have allegedly infected arbitration.13
Users of international arbitration are said to be unhappy with a costly and
slow process that too often ignores in-house counsel,14 and has become
infected with ‘Americanized’ pre-hearing discovery.15 General criticisms, both
in the United States16 and Europe,17 tell of ‘company-wide bans on arbitration
clauses,’18 related to the business community’s ‘growing chorus of discontent’
with the process.19 One commentator urges that arbitration must be repaired
‘by whatever means necessary.’20 Another suggests that empirical studies
showing business satisfaction with arbitration21 have been reached only by
turning a ‘blind eye to reality.’22 Even good friends of arbitration suggest that it

12
Alan Redfern, ‘Stemming the Tide of Judicialisation of International Arbitration’ (2008) 2 World Arb &
Med Rev 21, 37.
13
Gerald F Phillips, ‘Is Creeping Legalisms Infecting Arbitration?’ (AAA, February–April 2003) 58 Dispute.
Res J 37.
14
See eg Jean-Claude Najar, ‘A Pro Domo Pleading: Of In-House Counsel, and their Necessary
Participation in International Commercial Arbitration’ (2008) 25 J Int’l Arb 623. A fine survey of in-house
perspectives was presented by Carla Powers Herron (Shell Group, Houston, Group Counsel for Litigation) to
the Institute for Transnational Arbitration, Dallas, 17 June 2009, (forthcoming 2010) 3 World Arb & Med
Rev.
15
Roger Alford, ‘The American Influence on International Arbitration’ (2003) 19 Ohio State J Disp
Resolution 69; Bernard Audit, ‘L’Américanisation du droit’ (2001) 45 Arch philosophie du droit 7.
16
The Academic Director of the Straus Institute for Dispute Resolution at Pepperdine University, wrote that
‘criticism of American arbitration is at a crescendo’ due to extensive discovery and highly contentious advocacy.
Thomas J Stipanowich, ‘Arbitration and Choice: Taking Charge of the New Litigation’ (2009) 7 DePaul Bus &
Com L J 383. Other articles in the same symposium (Vol 7, No 3), titled ‘Winds of Change: Solutions to Causes
of Dissatisfaction with Arbitration,’ include Stephen L Hayford, ‘Building a More Perfect Beat: Re-thinking the
Arbitration Agreement’ 437; L Tyrone Holt, ‘Whither Arbitration? What Can Be Done to Improve Arbitration
and Keep Out Litigation’s Ill Effects’ 455; Robert A Holtzman, ‘The Role of Arbitrator Ethics’ 481; and Curtis E
von Kann, ‘A Report on the Quality of Commercial Arbitration: Assessing and Improving Delivery of the
Benefits Customers Seek’ 499.
17
See Paul Hobeck and others, ‘Time for Woolf Reforms in International Construction Arbitration’ (2008) Intl
ALR 84, asserting that ‘a growing chorus of critics has begun to question the role of arbitration in plant
construction’ and suggesting an equivalent of the 1999 civil procedure reforms in England, including more
intensive (‘front loaded’) pleadings at an earlier stage and more aggressive case management by arbitrators.
18
Michael McIlwrath, ‘Ignoring the Elephant in the Room: International Arbitration: Corporate Attitudes
and Practices’ (2008) 2 World Arb & Med Rev 111.
19
Peter Morton, ‘Can a World Exist Where Expedited Arbitration Becomes the Default Procedure?’
(forthcoming 2009) 25 Arb Int’l. The author admits that the desired rapidity will require the ‘buy-in’ of all
parties. Some observers may see the noun at the middle of that phrase (‘all’) as holding the key to why quick
proceedings can be problematic.
20
Jean-Claude Najar, ‘Inside Out: A User’s Perspective on Challenges in International Arbitration’
(forthcoming 2009) 25 Arb Int’l.
21
One widely discussed study, co-sponsored by a major accounting firm and a London university, suggested
that 86% of the participating corporate counsel are ‘satisfied’ with international arbitration. See International
Arbitration: A Study into Corporate Attitudes and Practices (2008), PriceWaterhouse Coopers & School of
International Arbitration (Queen Mary, University of London) (2008), with commentary by Loukas Mistelis and
Crina Mihaela Baltag, ‘Trends and Challenges in International Arbitration: Two Surveys of In-House Counsel of
Major Corporations’, 2 World Arb & Med Rev 83. The full statistical report is available at 20(1) ICC Bulletin
(2009).
22
Michael McIlwrath, Ignoring the Elephant in the Room: International Arbitraion: Corporate Attitudes and
Practices, (2008) 2 World Arb & Med Rev 111, at 113, focusing particular concern on the methodology of the
PriceWaterhouseCoopers study. Mr McIlwrath also facilitated discussion of similar ideas in the CPR-sponsored
‘IDN’ (International Dispute Resolution) podcast of 21 November 2008, where he interviewed Mr Volker
Mahnken, senior counsel of Siemens AG, with respect to his views on the perceived dissatisfaction among
consumers of international construction arbitration services.
30 Journal of International Dispute Settlement
is ‘generally admitted’ that arbitration has become more and more expensive.23
Suggested remedies include interim or advance rulings on costs,24 or a ‘town
elder’ model harking back to simpler days.25 Others propose expedited
proceedings,26 a single arbitrator rather than a three-member tribunal,27
splitting proceedings into discreet stages (jurisdiction, liability and damages),28
or more attention to dispute resolution in contract drafting.29 Institutional
guidelines outline ways to accommodate the rival elements inherent in the
proper conduct of business arbitration.30 And some courts have expanded
arbitrators’ authority to award costs against a party whose bad faith conduct
caused delay.31

B. The ‘Peace Treaty’ Subtext

On their face, many comments on arbitration’s cost take the ring of general
exhortations to try diplomacy before claims are filed or to demonstrate
proportionality in document production orders. Most thoughtful professionals
can only applaud consideration of such cost-saving measures. Indeed,
23
Two eminent Swiss scholars recently wrote, ‘Alors que l’arbitrage a été longtemps considéré comme un
mode économique de règlement des litiges commerciaux, il est aujourd’hui généralement admis qu’il devient de
plus en plus dispendieux’. See Jean-François Poudret and Sébastien Besson, In Edgar Philippin and others (eds)
Nature et efficacité des décisions prises par l’arbitre en cours de procédure au sujet des frais de l’arbitrage, (Mélanges en
l’honneur de François Dessemontet 2009) 297.
24
Poudret and Besson (n 23) 297; Michael Schneider, ‘Lean Arbitration: Cost Control and Efficiency
Through Progressive Identification of Issues and Separate Pricing of Arbitration Services’ (1994) 10 Arb Int 119.
25
See also David W Rivkin, ‘Towards a New Paradigm in International Arbitration – The Town Elder
Model Revisited’ (2008) 24 Arb Int’l 375. Mr Rivkin suggests a return to basics in which an arbitrator would
‘simply listen to both sides of the dispute and then issue his decision’, asking for additional information ‘only as
necessary’. Ibid 375. Of course, few arbitrators see themselves as requesting ‘unnecessary’ information even in
traditional arbitration. One concrete suggestion includes dispositive motions whereby a claim might be dismissed
without hearings simply because the pleaded facts did not support a claim.
26
Peter Morton, ‘Can a World Exist Where Expedited Arbitration Becomes the Default Procedure?’
(forthcoming 2009) 25 Arb. Int’l. Compare Michael McIlwrath and Roland Schroeder, ‘International
Arbitration: In Dire Need of Early Resolution’ (2008) 74 Arb 3.
27
See Jennifer Kirby, ‘With Arbitrators, Less Can be More: Why the Conventional Wisdom on the Benefits
of Having Three Arbitrators May Be Overrated’ (2009) 26 J Int’l Arb 337, arguing that three arbitrators may not
add enough to the legitimacy of international arbitration to outweigh what the author of the article perceives as
the added inefficiency.
28
See Julie Bédard, ‘Recession-Proof Arbitration: Of the Power of Constraint to Control Time and Costs’
(Aug/Oct 2009) 64 Dispute Res J 74, 79. Of course, at many arbitration conferences one hears critics of
bifurcation who claim that the case could have been decided more quickly if the issues were addressed all at once.
Much depends on how intertwined the various questions appear to be.
29
See Thomas J Stipanowich, ‘Arbitration and Choice: Taking Charge of the New Litigation’ (2009) 7
DePaul Bus & Com L J 3, to some extent echoing suggestions made earlier in the 2002 Freshfields Lecture. See
William W Park, ‘Arbitration’s Protean Nature’ (2003) 19 Arb Int’l 279, reprinted with a progress report in
Arbitration Insights 331 & 360 (J Lew and L Mistelis, eds, 2007).
30
See ICC Commission, Techniques for Controlling Time and Costs in Arbitration, ICC Publication No. 843
(2007). See also UNCITRAL Notes on Organizing Arbitral Proceedings (1996); College of Commercial
Arbitrators, Guide to Best Practices in Commercial Arbitration (October 2005), prepared by the American College of
Commercial Arbitrators from a prior draft presented to the CCA Meeting in Washington, DC, on 30 October
2004.
31
See ReliaStar Life Insurance Co. of NY v EMC National Life, 564 F. 3d 81 (2d Cir. 2009), where the
tribunal awarded respondent ReliaStar all legal fees because claimant’s conduct had been ‘lacking in good faith.’
The court refused to vacate the award, finding the arbitrators to have inherent power to sanction bad behavior,
notwithstanding that the contract explicitly required each party to ear its own attorneys’ fees.
 Arbitrators and Accuracy 31
arbitration’s contractual nature invites procedural innovation aimed at
reconciling truth-seeking with other litigation goals such as efficiency.
Some critiques, however, travel with a subtext that downgrades the type of
truth-seeking that has long served to promote both predictability and fairness
in economic relationships. One camp of commentators posits that commercial
litigants seek principally an end to hostilities so they can get on with their
business. A recent listing of arbitral virtues omits any mention of correct
awards,32 while other commentaries seem to down-play the need for arbitrator
access to information.33 The story runs that the parties want not so much an
accurate decision, but simply a decision, full stop, made by someone who
dictates a peace treaty rather than pronounces the true state of the world.34
To test the hypothesis that peace-making is what litigants want, one might
imagine a corporate counsel telling her boss how a joint venture partner has
breached its agreement, resulting in a hundred million Euros in lost profits.
‘We have a good case on the law and the facts,’ she says. Moreover, she
suspects that board minutes of the joint venture entity (now controlled by the
other side) prove manipulation of that company’s trading practices.
When arbitration claims are filed, the proceedings went forward with great
speed. The tribunal denied most pre-trial information exchange, including the
joint venture’s minute book. Apparently the arbitrators had heard the general
counsel give a speech about the downside of too much information. The
arbitrators spent their deliberations cracking jokes and playing video games,
rather than studying testimony and legal authorities. The award rejected
recovery and bid everyone good luck in the future.
A career adjustment for the general counsel soon followed. It seems that her
boss did not want an end to hostilities at the expense of defeat, at last not when
the company has a good case.35 The rougher form of justice might do if the
case were less certain.

32
See eg, Jean-Claude Najar (n 20). After cataloguing the perceived defects of international arbitration
today, the author concludes, ‘By whatever means necessary, arbitration needs to be repaired, to be returned to its
simple foundations—speed, cost efficiency, and user-friendliness’. In his introduction, Mr Najar defines the
‘purpose’ of international arbitration as ‘cost efficiency, speed, and user-friendliness’. Reference to a factually
accurate or legally correct award seems notably absent from the catalogue of arbitration’s objectives or goals. At
one arbitration symposium, a speaker garnered considerable applause by declaring that what in-house counsel
want is simply for arbitrators ‘to impose a solution that will get the parties out of their mess’, full stop. The Search
for Truth in Arbitration, Swiss Arbitration Symposium, Zürich, February 2009.
33
See discussion of ‘think slicing’ in Thomas J Stipanowich, ‘Arbitration: The New Litigation’ (2010) 1 U
Ill L Rev at 27–38.
34
See discussion above of Swiss Arbitration Association proceedings of 6 February 2009. For a thoughtful
consideration of the contrast between truth-seeking and peace-making, see generally, Mirjan R Damaška, ‘The
Faces of Justice and State Authority’ (1986) at 122–3, suggesting that a legal process aimed at maximizing
dispute resolution as such cannot simultaneously aspire to maximize accurate fact-finding.
35
Indeed, one constant of international arbitration practice lies in the basic profile of individuals sought-after
as arbitrators, which inevitably focuses on intelligence and integrity, both of which matter significantly if
truth-seeking remains the goal. Never has a lawyer called the author to ask for recommendation of arbitrators
who were dullards unable to look past smoke and mirrors designed to hide poor arguments and weak positions.
32 Journal of International Dispute Settlement
Like humanity in general, lawyers react against their last bad experience,
forgetting the specters of other unattractive alternatives. On some occasions
counsel chafe that victory escaped them because arbitrators refused to order
production of that extra document that would have provided the critical
evidence. At other times, lawyers fulminate against the injustice and burden of
having to scour their files for irrelevant pieces of paper.36
In this connection, one irony of the current debate is that the same lips that
complain of legalized arbitration often lament aberrational or ‘split the
difference’ awards,37 reminiscent of King Solomon’s interim ruling between
the proverbial Jerusalem mothers.38 Some literature even suggests that
arbitrators make unprincipled decisions to attract business,39 although no
empirical data based on either ‘win rates’40 or size of damages41 supports such
conclusions.

C. The Arbitrator’s Mission

No one should be surprised that arbitration implicates goals other than
accuracy, or that these aims require limits on testimony and discovery requests.
Nothing new resides in balancing truth-seeking against values that further
36
Likewise, a winning award might be upset by a court challenge, causing the victor’s counsel to lament the
lack of finality in arbitration. In another case, a disappointing award might be met with realization that full appeal
on the legal merits does not generally exist in arbitration.
37
For analysis of the real impact of ‘knucklehead awards’, see Christoher R Drahozal and Quentin R
Wittrock, ‘Is There a Flight from Arbitration?’ (2008) 37 Hofstra Law Rev 71, finding little evidence that
franchisors in fact use arbitration less. See also Christopher R Drahozal, ‘Busting Arbitration Myths’ (2008) 56 U
Kansas L Rev 663; Christopher R Drahozal, ‘Arbitration Costs and Forum Accessibility’ (2008) 41 J Law
Reform 813.
38
In the Biblical child custody dispute, one woman accused another of stealing her baby. The king called for
a sword so the child might be divided, half for each litigant. When one woman abandoned her claim in order to
save the infant, Solomon recognized the real mother and granted her custody, leaving ‘all Israel in awe of the
king’s wisdom.’ See I Kings 3:23–8.
39
See Richard Posner, ‘How Judges Think’ 128–29 (2008), citing Armendariz v Foundation Health Psychare
Services, 6 P3d 669, 693 (Cal 2000), where a California court asserted that courts and juries are ‘more likely to
adhere to the law and less likely than arbitrators to ‘‘split the difference’’ between the two sides thereby lowering
damages’. For similar skepticism about arbitrator accuracy, see Alon Klement and Kvika Neeman, ‘Does Private
Selection Improve the Accuracy of Arbitrators’ Decisions’, Law and Economics Workshop (University of
California, Berkeley), Paper 19, Spring 2009; Alon Klement and Daphna Kapeliuk, Contractualizing Procedure
(Available on SSRN, Version of 31 December 2008).
40
A claimant awarded $100 on a $5 million claim ‘wins’ in the sense of receiving something. However, the
respondent would likely be the happier of the two parties. One study of investment awards, finding that investors
brought treaty-based claims for $343 million on the average, but collected only $10 million on the average. Susan
Franck, ‘Empirically Evaluating Claims about Investment Treaty Arbitration’ (2007) 86 North Carolina L Rev
(2007) at 49–50, 64.
41
Employment and consumer controversies present concerns different from those present in
business-to-business cases. It may be that the cost of legal counsel for court cases precludes the less wealthy
from starting litigation except if attorneys take matters on a contingency fee. See Theodore Eisenberg and
Elizabeth Hill, ‘Arbitration & Litigation of Employment Claims: An Empirical Comparison’ (ABA, Nov 2003 to
Jan 2004) 58 Disp Res J 44, looking at state and federal court trials as compared with AAA arbitrations. In
non-civil rights disputes, higher paid employees (earning over $60,000 per year) generally prevailed at greater
rates (64%) in arbitration than in state court (56%). For lower paid employees the win rate was $39%. However,
the size of the mean award was greater in court cases, at $462 thousand for courts compared with $211 for
higher paid employees in arbitration and $$30 thousand for lower paid employees in arbitration. Looking to the
median (rather than mean) award, the higher paid employees actually received more in arbitration ($94
thousand) than in court litigation ($68 thousand).
 Arbitrators and Accuracy 33
public goals rather than adjudicatory precision. Classic trade-offs include
professional secrecy, evidentiary exclusion rules, and the civil jury system.42
What remains at stake in the debate are the shades of gray in balancing
truth-seeking against added time and expense. Any account of international
arbitration remains inadequate if it denigrates the aspiration to accuracy, or
shifts an arbitrator’s aim from a correct award to splitting the baby or dictating
quick peace treaties.
Particularly for international transactions, arbitration often justifies itself by
reference to a more level playing fields, not speed and economy.43 In a
stubbornly heterogeneous world lacking a supra-national judiciary with
mandatory jurisdiction, arbitration enhances a relative measure of adjudicatory
neutrality, which in turn promotes respect for shared ex ante expectations at the
time of a contract or investment.44 A desire for confidentiality and expertise
also play a role, as do apprehensions about xenophobia45 and civil juries.46
Litigants are obviously free to choose a mode of dispute resolution that
ignores accuracy based on recourse to testimony and documents. They may
draw straws, flip coins, roll dice, fight a duel or consult entrails of a
disemboweled chicken. If not inclined toward augury, chance or combat, the
parties can give someone a blank check to decide ‘in equity’ without reference
to law. No lawyers are needed, whether external or in-house.
Litigants might also take responsibility for their own fate by agreeing to
settle. Mediation can facilitate settlement, particularly if arbitral or judicial
backstops supply baselines from which to evaluate each side’s positions. Yet
42
A perceived lack of reliability in the American jury system lies behind much of the domestic arbitration
movement in the United States. Legal trustworthiness, however, may not be a jury’s main goal. One classic
commentary on American society suggests that the function of the civil jury was public education rather than
truth-seeking. Alexis de Tocqueville, De la démocratie en Amérique (1835 and 1840), Livre I, Deuxième Partie,
Ch. VIII, Du jury aux Etats-Unis considéré comme institution politique. De Tocqueville writes, ‘Je ne sais si le jury est
utile à ceux qui ont des procès, mais je suis sûr qu’il est très utile à ceux qui les jugent. Je le regarde comme l’un
des moyens les plus efficaces dont puisse se servir la société pour l’éducation du peuple’. (‘I do not know if the
jury is useful for those who have lawsuits, but I am sure it is very useful for those who decide them. I see it as one
of the most efficient means by which society can educate the people.’) Derived from visits to the United States in
1835 and 1840, these observations speak to early American exceptionalism. See also Oscar Chase, ‘American
Exceptionalism and Comparative Procedure’ (2002) 50 Am J Comp L 277.
43
Perception may be more significant than reality. One study found that in federal civil actions in the United
States, foreigners actually fare better than domestic parties. See Kevin Clermont and Theodore Eisenberg,
‘Xenophilia in American Courts’ (1996) 109 Harv Law Rev 1122. An explanation for this counter-intuitive
finding lies in the fear of litigation bias that leads foreign litigants to settle rather than continue to judgment
unless they have particularly strong cases.
44
An exaggerated articulation of this perspective (intentional, for entertainment perhaps) was presented in
Jan Paulsson, ‘International Arbitration is not Arbitration’ (2008) 2 Stockholm Int’l Arb Rev, adapted from
Brierley Memorial Lecture, Montréal, 28 May 2008, suggesting that international arbitration is to arbitration
what sea elephants are to land elephants.
45
One arbitration followed a $500 million Mississippi verdict against a Canadian company for breach of
$980 thousand in burial insurance contracts and an exchange of funeral homes valued at $2.5 million. After a
trial with xenophobic comments to inflame jurors and an appeal thwarted by a $625 million bond requirement,
the investor alleged discrimination and unfair treatment. ICSID Case No ARB(AF)/98/3 Loewen Group &
Raymond Loewen v USA (26 June 2003). See generally, Jonathan Harr, ‘The Burial’ The New Yorker, 1 November
1999, at 70.
46
Concern is often expressed that civil juries show undue sympathy to the ‘little guy’ (consumer or
employee) against the ‘big guy’ (manufacturer, bank or boss).
34 Journal of International Dispute Settlement
mediation, like negotiation, succeeds only if both sides agree to bury
differences.47 If each side clings to peace on its own terms, reference to what
the parties (plural) want will be meaningless.
Arbitration, by contrast, imposes a binding decision when harmony proves
impossible, and thus implicates a more rigorous process for finding facts and
law based on weighing testimony and documents. When differences are deep
and complex, the process takes time.
In some instances, the parties may tailor the procedural calculus to reflect
protocols different from those by which national law balances speed and
economy against the interest in accuracy. However, in disputes with a serious
impact on corporate or national welfare, intelligent litigants usually craft their
rules with deference to the adage that one person’s delay is another’s due
process.48
An agreement to end hostilities may cost less than arbitration, just as a train
trip from London to Paris is cheaper and quicker than a flight from London to
Hong Kong. However, if the parties cannot agree to the shorter trip, they may
have no option but to accompany each other on the longer and more costly
voyage. In such instance, both will want a pilot who cares about taking the best
route to the correct destination.49

3. Tools for Fact-Finding

A. The Impact of Legal Culture
Although differences in national procedure do exist,50 most modern legal
systems show a core reliance on witness testimony, documentary exhibits and
expert opinion.51 However, this does not mean that they agree on how to use
47
Noting that a decision to arbitrate shifts responsibility to a third party, Judge Schwebel speculates that
mediation is rare for investor-state disputes because bureaucracies tend to shift rather than assume responsibility.
Stepehn M Schwebel, ‘Is Mediation of Foreign Investment Disputes Plausible?’(Fall 2007) 22 (No. 2) ICSID
Review/Foreign Investment Law J 237.
48
The phrase has been attributed to James Landis (former Dean of Harvard Law School) in his Address to
the Administrative Law Section, American Bar Association in St Louis (7 August 1961); typescript in Harvard
Law School Library. See Morton Horwitz, ‘The Transformation of American Law’ 1870–1960 (1992) 244.
49
A more controversial analogy might compare mediation to a dinner date and arbitration to a marriage.
The casual date carries no commitment, with the couple free to go separate ways if the chemistry lacks, just as
disputants can ignore a mediator’s suggestion. In contrast, deeper consequences attach to wedding vows and
arbitration agreements, notwithstanding that subsequent annulment requests are possible in each case. Of course,
arbitral awards usually look more like divorce decrees than marriage certificates but both carry a degree of
somber finality.
50
See eg Siegfried H Elsing and John M Townsend, ‘Bridging the Common Law-Civil Law Divide in
Arbitration’ (2002) 18 Arb Int’l 59; Pierre A Karrer, ‘The Civil Law and Common Law Divide’ (ABA, February/
April 2008) 63 Dispute Resolution J 72; Andreas F Lowenfeld, ‘The Two-Way Mirror: International Arbitration
as Comparative Procedure’ (1985) 7 Mich J Int’l Legal Stud 163; Luc Demeyere, ‘Different Aproaches to
Procedures under Common Law and Civil Law’ (Nov/Dec 2008) 6 Schieds VZ 279 (Zeitschrift für
Schiedsverfahren).
51
See ‘Truth and its Rivals: Evidence Reform and the Goals of Evidence Law’ (1998) 49 Hastings LJ, in
particular Richard D Friedman, Truth and Its Rivals in the Law of Hearsay and Confrontation, Ibid 545; Richard M
Mosk, ‘The Role of Facts in International Dispute Resolution’ (2004) 304 Recueil des cours (Hague Academy of
 Arbitrators and Accuracy 35
these truth-seeking tools. Variations often derive from wrinkles of historical
accident or different cost-benefit analysis in weighing truth-seeking against
other considerations.52 Even radical differences in practice sometimes present
themselves as divergent paths to the same end.53
Under the Anglo-American model, lawyers do the heavy lifting in gathering
and marshalling elements of proof, as well as questioning witnesses. Truth
reveals itself in the crucible of vigorous exchanges among those with competing
perspectives. This so-called ‘adversarial’ system contrasts with the ‘inquisitorial’
paradigm in which judges or arbitrators take a more proactive role in finding
out what happened.
Much international arbitration implicates some combination of the two
approaches.54 Fact-finding is enhanced by self-interested litigants motivated to
ferret out information. Notwithstanding that work falls on those with incentives
to ignore some aspects of the story, it would be hard to imagine anyone other
than counsel marshalling evidence for arbitration on a global basis.
Yet a more inquisitorial style may commend itself during oral hearings, after
party briefs memorialize points of law and evidence. Rather than sitting
passively while lawyers perform, arbitrators who engage in robust and direct
dialogue with witnesses and counsel can stimulate the mental juices that help
connect analytic dots, at least if they avoid seeming to have pre-judged the
case, or revealing a failure to read the papers.
What starts as a culture clash might, after adjudicatory skirmishing, end up
as legal cross-pollination, evolving into common litigation practice among

International Law); John Crook, ‘Fact-Finding in the Fog: Determining the Facts of Upheavals and Wars in
Inter-State Disputes’ in Catherine Rogers and Roger Alford (eds) The Future of Investment Arbitration (2009);
Terrence Anderson and others, Analysis of Evidence (2nd edn 2005) 289–314 (principles of proof and their
exceptions).
52
Such variations should not be surprising, given that different approaches to fact-finding appear even within
relatively homogeneous legal systems. See Neil S Hecht and William M Pinzler, ‘Rebutting Presumptions’ (1978)
58 BU Law Rev 527, comparing presumptions that control permissibility of inferences. A legal presumption
(stamped letters put into mailboxes arrive in due course) might be rebutted by the alleged recipient’s testimony
that he never received the letter. And a logical inference tracking the presumption about letters and mailboxes
might support a finding that the letter arrived. See Rule 301, US Federal Rules of Evidence, distinguishing
between burden of coming forward with evidence and burden of persuasion.
53
In Islamic law, the ‘debt verse’ in Qur’an, ch. 2:282 provides, ‘If there are not two men [as witnesses in a
debt dispute] let there be a man and two women . . ... If one of those women should mistake, the other of them
will cause her to recollect.’ Some scholars suggest that the rule, understandably perceived today as suggesting
inferiority in female testimony, derives from concern for testimonial accuracy in 7th century Arabia, when women
were not involved in financial affairs. See generally, Asghar Ali Engineer, Rights of Women in Islam (2nd edn 2004)
73–83; Ronak Husni and Daniel L Newman, Muslim Women in Law & Society (2007) 37–9; Urfan Khaliq,
‘Beyond the Veil?: An Analysis of Provisions of Women’s Convention in the Law as Stipulated in Shari’ah’ (1995–
96) 2 Buff J Int’l L 1, 27–8.
54
In some instances, the procedural framework takes on the nature of a juridical language. Juxtaposing two
ways to say ‘language’ in French, Yves Derains makes this point forcefully in P Guach and others (eds) Langue et
langages de l’arbitrage (Mélanges en l’Honneur de Pierre Tercier 2008) 789. French might be the tongue (la
langue) for communication in an arbitration built on a procedural language (le language) drawn from American
practice, such as party-dominated document production and a trial with testimony presented all at once. Words
such as ‘witness’ and ‘témoin’ may prove false friends if evidence is presented by a party’s employee, who might
lack the capacity to testify under French legal notions of what it means to present testimony.
36 Journal of International Dispute Settlement
arbitration practitioners.55 Much of such intellectual cross-pollination impli-
cates legal practitioners and scholars who serve as worker bees, buzzing from
symposium to symposium and from case to case, sharing views on how to
resolve disputes, or set standards for testimony, document production and
ethics. Notable examples include the work of UNCITRAL on both arbitration
rules and a Model Arbitration Law,56 as well as the International Bar
Association instruments on conflicts-of-interest57 and evidence,58 and the
American College of Commercial Arbitrators compendium of ‘Best
Practices’ for arbitral proceedings.59 Built on arbitral lore memorialized
in treatises and learned papers, the ‘soft law’ of procedure operates in
tandem with the firmer norms imposed by statutes, treaties and institutional
rules.
Although nothing prevents litigants from overriding these principles, they
usually produce far-reaching effects for the simple reason that post-dispute
party agreement proves difficult or impossible. Rightly or wrongly, the
guidelines enter the canon of sacred instruments to be cited faute de mieux,
to fill gaps in institutional rules and national statutes.60
Cross-pollination is not always a happy matter, however. In particular,
Continental lawyers are often frustrated with wrangling over privilege,
pre-hearing oral depositions, and objections to evidence.61 Not all American

55
For a divergent perspective that castes cross-fertilization in economic matters as cultural domination by
norm-setting experts from developed countries, see Catherine Kessedjian, ‘Culture et droit, L’influence de la
culture sur le droit international et ses développements’ in Paul Meerts (ed.) Culture and International Law
(2008): ‘Qui dit concurrence, dit un vainqueur et un vaincu: donc une domination.’ (‘So, whoever says
competition says victor and vanquished: thus domination.’).
56
The United Nations Commission on International Trade Law promulgated its Arbitration Rules appeared
in 1976, while the Model Law on International Commercial Arbitration dates from 1985, and was amended in
2006.
57
International Bar Association Guidelines on Conflicts of Interest in International Commercial Arbitration,
approved by the IBA Council on 22 May 2004, published in 9 (No. 2) Arbitration & ADR (IBA) 7 (October
2004). The IBA Guidelines present concrete enumerations of fact patterns that may give rise to justifiable doubts
on arbitrator independence or impartiality, and thus disqualify arbitrators. The non-waivable red list includes a
financial interest in the outcome of the case, while other fact patterns (such as a relationship with counsel) may
be ignored by mutual consent. The orange list covers past service as counsel for a party, which the parties are
deemed to have accepted if no objection is made after timely disclosure. The green list enumerates cases such as
membership in the same professional organization that require no disclosure. See also Markham Ball, ‘Probity
Deconstructed – How Helpful, Really are the New IBA Guidelines on Conflicts of Interest in International
Arbitration’ (November 2004) 15 World Arb & Med Rev 333; Jan Paulsson, ‘Ethics and Codes of Conduct for a
Multi-Disciplinary Institute’ (2004) 70 Arbitration 193, 198–9.
58
See IBA Working Party, ‘Commentary on the New IBA Rules of Evidence in International Commercial
Arbitration’ (2000) Bus Law Int’l 14. See also Michael Bühler and Carroll Dorgan, ‘Witness Testimony Pursuant
to the IBA Rules of Evidence in International Commercial Arbitration’ (2000) 17 J Int’l Arb 3.
59
College of Commercial Arbitrators, Guide to Best Practices in Commercial Arbitration (October 2005).
60
See William W Park, ‘Three Studies in Change’, (2006) 45 Arb Int’l Bus Disputes; William W Park,
‘Arbitration’s Protean Nature’ (2003) 19 Arb Int’l 279.
61
Not all Continental lawyers, however, necessarily disapprove of American practices. In a provocative
article exploring why civil law arbitrators sometimes apply common law procedures, an eminent Zürich attorney
suggested reasons to appreciate Anglo-American litigation techniques such as cross examination and document
production. See Markus Wirth, fflIhr Zeuge, Herr Rechtsanwalt! Weshalb Civil-Law-Schiedsrichter
Common-Law-Verfahrensrecht anwenden’ (January to February 2003) 1 Schieds VZ (Zeitschrift für
Schiedsverfahren/German Arbitration Journal). One Continental lawyer offers three explanations for the
differences between procedure in common law and civil law: (i) the role of oral evidence in common law; (ii) the
 Arbitrators and Accuracy 37
legal traditions have spurned controversy, however. International arbitration
now generally admits the practice, long favoured in the United States,62 of
lawyers preparing witnesses by discussing the case in pre-hearing interviews.63
Indeed, the Swiss Rules of International Arbitration now explicitly bless the
practice.64
Just as international arbitration has been ‘Americanized,’ arbitration in the
United States has to some extent begun to reflect the European emphasis on
written testimony and reasoned awards.65 Perhaps the most striking examples
can be found in the new American standard for arbitrator ethics.66
Traditionally, party-nominated arbitrators in the United States were considered

inductive nature of legal reasoning in common law, and (iii) pre-trial discovery in the common law. See Luc
Demeyere, ‘Different Approaches to Procedures under Common Law and Civil Law’ (November/December
2008) 6 Schieds VZ 279 (Zeitschrift für Schiedsverfahren/ German Arbitration Journal).
62
American lawyers would be considered lacking in diligence if they failed to rehearse their witnesses about
the type of questions to be asked, seen as a way to keep the witness from being misled or surprised, arguably
making the testimony more accurate. See eg In re Stratosphere Corp. Sec. Litig., 182 FRD 614, 621 (D Nev
1998). See Wigmore on Evidence (3rd edn) §788; Thomas A Mauet, Pretrial (4th ed., 1999).
63
See generally George von Segesser, ‘Witness Preparation’ (2002) 20 ASA Bull 222. The normal Swiss
practice would be to the contrary. See eg art 13, Geneva Us et coutumes de l’ordres des avocats: ‘L’avocat doit
s’interdire de discuter avec un témoin de sa déposition future et de l’influencer de quelque manière que ce soit.’
(The attorney must abstain from discussing with a witness his future testimony and from influencing him in any
way.) German lawyers are likewise prohibited from interviewing witnesses out of court except in special
circumstances. See John H Langbein, ‘The German Advantage in Civil Procedure’ (1985) 52 Chicago L Rev 823
at 834; John H Langbein, ‘Trashing the German Advantage’ (1988) 82 Nw L Rev 763.
64
Swiss Rules of International Arbitration, adopted in 2004 by the Chambers of Commerce and Industry of
Basel, Bern, Geneva, Lausanne, Lugano and Zürich. Article 25(6), provide that it shall ‘not be improper for a
party, its officers, employees, legal advisors or counsel to interview witnesses, potential witnesses or expert
witnesses.’ This rule tracks art 4(3) of the 1999 International Bar Association Rules on the Taking of Evidence in
International Commercial Arbitration (IBA Rules of Evidence). See also Nathalie Voser, ‘Best Practices: What
Has Been Achieved and What Remains to Be Done’ in Markus Wirth (ed.) Best Practices in International
Arbitration 1, ASA Bulletin, Special Series No. 26 (2006). Dr Voser writes, ‘It is traditionally a violation of ethical
rules for an attorney to contact a witness beyond establishing whether or not a person should be nominated as
witness.’ Ibid at 2. Nevertheless, she concludes that in the interest of equal treatment, it is generally accepted
today that lawyers will have previous contact with their witnesses before arbitration begins, at least ‘to a certain
extent.’
65
The American Arbitration Association traditionally discouraged reasoned awards, on the assumption that
reasons provided a hook on which an unhappy loser might challenge an award. As late as 1987, the President of
the American Arbitration Association suggested to arbitrators that ‘[w]ritten opinions can be dangerous because
they identify targets for the losing party to attack’. Robert Coulson, Business Arbitration: What You Need to Know
(3rd edn 1987) 29. By contrast, reasoned awards have been the norm for international arbitration. The mandate
for reasoned awards can be found not only in the rules of international institutions (eg ICSID Convention art
52(1)(e), ICC Rules art 25(2) and LCIA Rules art 26(1)), but also in the public law tradition elaborated a
century ago, reflected in art 52 of the 1899 Convention for the Pacific Settlement of International Disputes and
art 79 of the 1907 Convention for the Pacific Settlement of International Disputes. See Dev Krishan, Reasoning
in International Adjudication (forthcoming 2010). Even in the United States, however, the absence of reasons has
not always been an unalloyed good. In one case, a federal court stated that an arbitrator’s failure to give reasons
might reinforce suspicions of ‘manifest disregard of the law’. Halligan v Piper Jaffray, 148 F 3d 197 (2nd Cir.
1998), cert. denied 119 S. Ct. 1286 (1999).
66
See generally Ben Sheppard, ‘A New Era of Arbitrator Ethics in the United States’ (2005) 21 Arb Int’l 91;
Paul D Friedland and John M Townsend, ‘Commentary on Changes to the Commercial Arbitration Rules of the
American Arbitration Association’ (November 2003 to January 2004) 58 Disp Res J 8. Paul D Friedland and
John M Townsend, ‘Commentary on Changes to the Commercial Arbitration Rules of the American Arbitration
Association’ (November 2003 to January 2004) 58 Disp Res J 8; David Branson, ‘American Party-Appointed
Partisan Arbitrators – Not The Three Monkeys’ (2004) 30 U Dayton Law Rev 1.
38 Journal of International Dispute Settlement
partisan and thus permitted ex parte communications with their appointers.67
Ultimately, however, American arbitration came into line with global stan-
dards,68 imposing a presumption of independence for all arbitrators, regardless
of how they were selected.69

B. Conflict, Convergence and Proportionality

Seeking an illustration of how cultural baselines affect truth-seeking, it would
be difficult to find one better than the oft-maligned American style of
discovery.70 Likewise, one would be hard-pressed to suggest a more forceful
example of procedural cross-pollination than the compromise reached in
guidelines that balance risks and benefits of document requests.
In many countries, lawyers simply provide opposing counsel with advance
copies of exhibits on which they intend to rely. Such exchange aims to avoid
undue surprise. Conversely, practice in the United States71 and England72 has
evolved to require parties to produce, either spontaneously or upon request,
broad categories of dispute-related material that may be adverse to their

67
In domestic (rather than international) arbitration, it was presumed that arbitrators nominated by one of
the parties were partisan unless explicitly agreed otherwise. See Canon VII, 1977 AAA/ABA Code of Ethics for
Arbitrators in Commercial Disputes.
68
The general alignment of American and global standards does not mean that all peculiarities in ethical
practices cease to exist, either among institutions or among states. See eg Crédit Suisse First Boston Corp. v
Grunwald, 400 F 3d 1119 (9th Cir. 2005), involving the broad and controversial California Ethical Standards for
Neutral Arbitrators. In the case at bar, arising under the rules of the National Association of Securities Dealers,
the California standards were found to be preempted by the 1934 Securities Exchange Act.
69
Under the 2004 Arbitral Code of Ethics, adopted jointly by the American Bar Association and the
American Arbitration Association, a party-nominated arbitrator may be non-neutral only if so provided by the
parties’ agreement, the arbitration rules or applicable law. See Preamble (‘Note on Neutrality’) and Canon X,
2004 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. Moreover, the American Arbitration
Association domestic commercial arbitration rules, effective July 2003, established a presumption of neutrality for
all arbitrators. Rule 18 (applicable unless there has been agreement otherwise) prohibits ex parte communication
with an arbitrator except (i) to advise a party-nominated candidate of the nature of the controversy or (ii) to
discuss selection of a presiding arbitrator. Rule 12(b) requires party-nominated arbitrators to meet general
standards of impartiality and independence absent agreement otherwise.
70
See eg Robert H Smit and Tyler B Robinson, ‘E-Disclosure in International Arbitration’ (2008) 24 Arb
Int’l 105; Klaus Sachs, ‘Use of Documents and Document Discovery: ‘Fishing Expeditions’ versus Transparency
and Burden of Proof’ (2003) 1 Schieds VZ (Zeitschrift für Schiedsverfahren/German Arbitration J) 193. See also
Gabrielle Kaufmann-Kohler and Philippe Bärtsch, ‘Discovery in International Arbitration: How Much is Too
Much?’ (2004) 2 SchiedsVZ (Zeitschrift für Schiedsverfahren/German Arbitration J) 13; Peter Griffin, ‘Recent
Trends in the Conduct of International Arbitration: Discovery Procedures and Witness Hearings’ (2000) 17 J
Int’l Arb 19; George A Lehner, ‘The Discovery Process in International Arbitration’ (January 2001) 16 Mealeys
Int’l Arb Rep 1. For comparative studies of the alleged costs and benefits of discovery, see Julius Levine,
Discovery (1982) (England and the United States); Arielle Elan Visson, Droit à la production de pièces et discovery
(1997) (England and Switzerland).
71
See Federal Rules of Civil Procedure, Rules 26–37 and 45, in particular Rule 26(b)(1). Sanctions for
non-compliance (Rule 37) include preclusion of introduction of the evidence, striking pleadings and fines for
contempt. For litigation in the United States, as well as some American arbitration, case preparation also
implicates oral pre-trail depositions of the other side’s witnesses. See generally, Thomas Mauet, Pretrial (4th ed.
1999); John Beckerman, ‘Confronting Civil Discovery’s Fatal Flaws’ (2000) 84 Minn L Rev 505.
72
See Part 31, Disclosure and Inspection of Documents, 1998 English Civil Procedure Rules, which
requires automatic production of certain categories of documents including (in Section 31(6)(1) of the CPR)
both documents on which a party relies and ‘documents which adversely affect [its] own case or support another
party’s case’.
 Arbitrators and Accuracy 39
own case.73 Like a vacuum cleaner, document production often sucks up bits
of paper that may yield information reasonably calculated to lead to the
discovery of admissible evidence.74
In this regard, American lawyers often appear to their foreign colleagues as
asserting a right to shoot first and aim later, asking how they are to prove a
claim without the other side’s documents. Continental lawyers reply that
evidence should be collected before claims are filed, unless of course they
themselves want information to benefit a client, at which point American legal
imperialism becomes the ‘emerging trend’ in arbitration.
A rule that requires the other side to produce documents adverse to its case
provides a perspective of the relative strengths and weaknesses of each side’s
position. This may lead to settlement, sharper definition of issues, and of
course enhanced chances that the arbitrator will learn what truly happened.75
Document production comes at greater expense, however. Some equilibrium
must exist between accuracy furthered by document production and the need
for sensitivity to its cost in time and money. On a net basis, more exchange is
not necessarily better.
In international arbitration, the different cultural starting points have
produced an accommodation in which truth-seeking will be tempered against
the objectives of speed and economy. The 1999 International Bar Association
Rules on the Taking of Evidence in International Commercial Arbitration (IBA
Rules of Evidence) adopt a compromise that might be seen as ‘rifle shot’ rather
than ‘scatter gun’ approach. Requests must identify either a single document or
a narrow and specific category of documents, coupled with a description of
their relevance and materiality to the outcome of the case.76 The American
Arbitration Association has memorialized an analogous approach with infor-
mation exchange guidelines that apply in all international cases administered by
its affiliate, the International Centre for Dispute Resolution.77
73
While discovery requests usually implicate the opposing party, they may also aim at non-parties with
information relevant to the dispute. See Alan Scott Rau, ‘Evidence and Discovery in American Arbitration: The
Problem of Third Parties’, (2008) 19 Am Rev Int’l Arb 1.
74
The origins of this approach derive from the so-called ‘Peruvian Guano Test’ which fixed the universe of
potentially discoverable documents to include whatever might lead to a ‘train of inquiry’ to advance the party’s
own case or damage the case of the adversary. Compagnie Financière du Pacifique v Peruvian Guano Co., 11 QBD
55 (1882). The so-called Woof Reforms that came into effect in 1999 curtail some of the entitlement to
documents simply because they lead to a ‘train of inquiry’ toward evidence.
75
For arguments in favor of American discovery practices in arbitration, see Pedro J Martinez-Fraga, ‘The
American Influence on International Commercial Arbitration’ (2009); Paul B Klaas, ‘Depositions: An Apologia’
(forthcoming) 25 Arb Int’l.
76
IBA Rules of Evidence (1999 Version), s 3(a) and (b).
77
See American Arbitration Association (International Centre for Dispute Resolution), Guidelines for
Information Exchanges in International Arbitration, issued 8 May 2008, making clear that arbitrators have ‘the
authority, the responsibility and in certain jurisdictions, the mandatory duty’ to manage proceedings so as provide
simpler and less expensive justice. See generally, John Beechey, ‘The ICDR Guidelines for Information Exchange
in International Arbitration’ (August/October 2008) Disp Res J 85. In January 2009, the CPR (formerly Center
for Public Resources) issued its own list of precepts for information exchange, which apply to all commercial
arbitration, not just international cases. CPR Protocol on Disclosure of Documents and Presentation of
Witnesses in Commercial Arbitration
40 Journal of International Dispute Settlement
Admittedly, assumptions about what discovery is ‘normal’ will affect the
cost/benefit calculation in determining what is relevant or material. Yet the
wind has definitely blown away from both the minimalist and the expansionist
approaches, with notions of proportionality informing choices on when
burdens of production bear a reasonable relationship to the degree of expected
enlightenment.

C. The Role of Complexity

The more complicated a dispute, the more challenging the task of fixing the
right case management tools. If Jill claims that Jack sold her a defective
automobile, the calculus of truth-seeking rests on testimony from individuals
who helped Jill get the car started. But few international disputes pose a single
issue with such pristine purity.
So let us imagine a more realistic scenario. The owner of an American
fishing fleet claims for lost profits and injury to crew members due to explosion
of ship engines purchased from a European manufacturer. As the arbitrator
begins to decorticate the controversy, one obvious issue is whether engine
failure resulted from poor European workmanship or sloppy American
maintenance. What law should determine whether the tribunal has jurisdiction
to hear claims for bodily injury? Should hearings be bifurcated to address the
jurisdictional question first? Does contractual limitation of liability cover some
claims but not others? What theory determines quantum of damages? How
does the arbitrator respond to disagreement on whether briefs should be
simultaneous or sequential? How much pretrial document production should
be ordered? Should oral depositions be directed for crew members, or
subpoenas issued to third parties with information on maintenance? Do claims
of attorney-client privilege shield some communications from production?
Does privilege depend on whether the document was created in the United
States (where communications with in-house counsel may be privileged) or in
Switzerland (where such communications are not)? Should experts in areas
such as engineering, accounting or damages be heard examined together or
separately?78
In such arbitrations, proper case management requires closer sensitivity to
the counterpoise between finding the truth about liability and damages, and
avoiding undue cost and delay. The framework for truth-seeking in arbitration
must be flexible enough to adapt to a myriad number of problems. Since things
that go without saying often will go better having been said, it may be well at
78
Almost any job description might become the subject of expert testimony. In one case involving power
plant construction in a developing country, each side called military officers and social workers (including a padre
who testified for both sides) to opine on how the contractor should have reacted to guerilla activity that was
interfering with work site progress.
 Arbitrators and Accuracy 41
this point to mark the point by listing a few real world situations that illustrate
why arbitral truth-seeking is not always a simple matter.
 An owner accuses a building contractor of deviating from good practice in
48 matters, ranging from silicon in the cement mix to termite protection
for cables. What truth lies there in these claims? Do they give rise to the
contracter’s liability?
 In a corporate acquisition, the seller allegedly misrepresented the trans-
ferred entity’s income by causing repairs to be capitalized over several
years, instead of taken as expenses during the year incurred, thus arguably
overstating the entity’s Earnings Before Interest Taxes Depreciation and
Amortization. Was the accounting irregular, and if so do buyer have a right
to rescind?
 Pursuant to a long-term supply contract, one side says that the other must
adjust the price to account for changed circumstances. Learned professors
differ about what the applicable law requires. Which legal expert’s report is
more accurate?
 The purchaser of a bank, after taking possession, claims that the loan
portfolio is not of the quality promised, and that deposits were less than
expected. Is a rebate justified due to impairment of the assets and/or
liabilities?
 An insurance company fails to reimburse a manufacturer for third party
liabilities incurred in American tort litigation, suggesting that the company
‘knew or expected’ that the insured product would cause injury. What did
the policy-holder know?
 A host state expropriates assets of an American oil company. What is the
value of the confiscated property? How should quantum of loss be
calculated?
 A buyer of natural gas argues that events of force majeure allow an escape
from purchase obligations. What legal standard determines duty to
perform?
In arbitrations with an international element, controversy also can arise over
the procedurally right way to decide these complex matters.79 Even if parties
agree in the abstract on what standards apply (for example, adopting the IBA
Rules of Evidence), varying ideas of what is ‘reasonable’ may divide those of
different backgrounds on matters such as the relationship between oral and
79
For an overview of such questions, see The Civil Litigation Process (Janet Walker ed. 6th ed. 2005);
William W Park, ‘Three Studies in Change’ (2006) Arb Int’l Bus Dis 3. See also 2009 Austrian Arbitration
Yearbook 482 (C Klausegger and others, eds, 2009), including Michael Kramer and others, Equal Treatment in
Multi-Party Arbitrations and Specific Issue of Appointment of Arbitrators, Ibid 149; Laurence Shore and Delyan
Dimitrov, The Public Interest in Private Dispute Resolution, Ibid 163; Michael Molitoris and Amelie Abt, Oral
Hearigns and the Taking of Evidence in International Arbitration Ibid 175; Klaus Oblin, Hearsay and International
Arbitration, Ibid 201; Stavros Brekoulakis, The Negative Effect of Compétence-Compétence: The Verdict has to be
Negative, Ibid 237.
42 Journal of International Dispute Settlement
written testimony,80 document production,81 electronic discovery82 or available
remedies and damage calculations.83

4. The Truth about Law

A. Jura Novit Curia
Many trees have been felled to make paper for articles on how to find facts,
looking at topics from presentation of testimony to the role of depositions and
discovery. Less attention has been paid to the arbitrator’s truth-seeking
function with respect to legal norms.84
This gap is surprising on several counts. First, arbitral awards are not usually
subject to review for legal error in the same way that lower court judgments are
scrutinized in a hierarchical national legal system. The New York Arbitration
Convention lists nothing like mistake of law as a ground for non-recognition.
And the ICSID Convention contains no right to seek annulment for
substantive legal error as such.85 Thus arbitrators bear a heavy burden to
‘get it right’ on the law, since their mistakes cannot be corrected in an appellate
chain.86
Second, the starting point for determining the applicable law may be
problematic for arbitrators. National courts seek authority in choice-of-law
principles of their own jurisdiction. By contrast, the genesis of adjudicatory
power for international arbitration derives not from any single legal system, but
from the parties’ decision that a dispute not be decided by national courts.
80
Arbitration and Oral Evidence (L Lévy and VV Veeder, eds, 2005), Dossiers ICC Institute World Business
Law, ICC Pub 689.
81
Document Production in International Arbitration, 2006 Supplement, ICC Bulletin, ICC Pub. 676E.
82
Robert H Smit and Tyler B Robinson, ‘E-Disclosure in International Arbitration’ (2008) 24 Arbitration
105; Electronic Disclosure in International Arbitration (David Howell, ed., 2008); David J Howelll, Electronic
Disclosure in International Arbitration (2009).
83
See John Y Gotanda, ‘Damages in Private International Law’ (2007) 326 Recueil des Cours 73; Mark
Kantor, Valuation for Arbitration (2008); William W Park, ‘Framing the Case on Quantum’ Damages Int’l Arb, 2
World Arb & Med Rev 59 (2009); Interest, Auxiliary and Alternative Remedies in International Arbitration (Filip De
Ly and Laurent Lévy, eds 2008), Dossiers ICC Institute World Business Law, ICC Pub. 684; Evaluation of
Damages in International Arbitration (Yves Derains and Richard H Kreindler, eds 2006), Dossiers ICC Institute
World Business Law2006 ICC Pub. 668.
84
The International Law Association performed yeoman service on the topic in its Report on Ascertaining the
Content of the Applicable Law in International Commercial Arbitration, 73rd Conference, Rio de Janeiro (August
2008) 851–82 (Filip De Ly, Chair; Mark Feldman & Luca Radicati di Brozolo, Rapporteurs; Janet Walker,
Observer) (‘ILA Report on Applicable Law’).
85
New York Convention Article V; ICSID Convention Article 52. Although allegations of ‘excess of
authority’ sometimes mask claims of mistake, most reviewing panels remain sensitive to the distinction. On
second-guessing arbitrators, see generally, William W Park, ‘Why Courts Review Arbitral Awards’, in Briner and
others (eds) Liber Amicorum Karl-Heinz Böckstiegel (2001) 595; Jurisdiction to Determine Jurisdiction, in 13 ICCA
Congress Series 55 (PCA, The Hague, 2007). On analogous issues in public law arbitration, see W Michael
Reisman, Nullity and Revision (1971). For investor-state arbitration, see Thomas W Walsh, Substative Review of
ICSID Awards, (2006) 24 Berkeley J Int L 444.
86
Some statutes provide waivable appeal on points of law (eg 1996 English Arbitration Act, §69), but as the
exception rather than the rule. In the United States, parties may not even stipulate to appeal. Hall Street v Mattel,
552 US —, 128 S.Ct. 1396 (2008).
 Arbitrators and Accuracy 43
Consequently, if the parties have left lacunae, arbitrators may need to examine
transnational norms elaborated in other arbitrations or in cases from several
jurisdictions.
Finally, arbitrators in international cases are prone to listen to testimony
from legal experts offered by the parties themselves. Such a practice imposes
itself if tribunals include members not trained in the contractually designed
law, as well as non-jurists such as engineers, accountants or underwriters.
Even after an applicable law has been determined, the calculus of duty may
differ between judge and arbitrator. Judges bear direct obligations to the
appointing citizenry, and thus respond to significant societal values that may
trump private choices. Although responsible judges (like good scholars) will
master existing authority before taking new directions, many traditions allow
appellate judges to overrule precedent.
No similar social engineering normally falls to arbitrators. As creatures of
consent, arbitrators are law-appliers rather than law-makers, and must show
special fidelity to the litigants’ shared ex ante expectations as expressed in
contract or treaty.87 Although sensitive to public values,88 rejecting complicity
with illicit schemes89 and abusive procedures,90 arbitrators fix their eyes on
existing legal norms in determining what the parties had a right to expect.91
Although the realms of fact and law intertwine,92 distinction remains of
profound significance. Controverted facts can remain stubbornly particular,
87
In purely commercial arbitration, the parties’ agreement sets expectations. By contrast, for investor-state
arbitration expectations derive from treaty commitments to balance investor confidence and host state welfare,
with private contracts playing a role through ‘umbrella clauses’ requiring observance of undertakings. In state-to
state arbitration, expectations spring from inter-governmental accords, such as the recent Swiss-Libyan
Agreement to resolve tensions from arrest of a Libyan diplomat in Geneva, which instructs arbitrators to
apply ‘relevant national laws, international conventions, international custom, as well as evidence of general
practices accepted as law and the general principles of law and courtesy recognized by civilized nations.’ Each
side designates a third-country arbitrator, the two of whom chose a chair in default of which the International
Court of Justice makes the selection. Agreement between Switzerland and Libyan Arab Jamahiriya, Tripoli, 20
August 2009.
88
One recollects the dictum in Mitsubishi Motors v Soler Chrysler-Plymouth, 473 US 614 (1985), at 638,
warning arbitrators to address ‘the legitimate interest’ in enforcement of public law at the place of enforcement.
The contract was governed by Swiss law, but the counterclaim implicated American statutory unfair competition
counterclaims.
89
Money laundering presents special temptations. A corrupt official might contract with a foreign entity
controlled by accomplices, allowing contract default to lead to an ‘award’ against the government followed by
transfer of money into a bank account abroad. Careful arbitrators look for warning signs of fake arbitrations,
including entities not in existence at contract signature. See Gulf Petro Trading Co. v Nigerian National Petroleum
Corp., 512 F 3d 742 (5th Cir. 2008); Thomas Walsh, ‘Collateral Attacks and Secondary Jurisdiction in
International Arbitration’ (2009) 25 Arb Int’l 133.
90
In one recent California case, a settlement of sexual harassment claims involved payment to the employee
who accepted sham arbitration with an ‘award’ in the company’s favor. Nelson v American Apparel, Inc. (Cal. App.
2d. Dist. 28 October 2008, No. B205937).
91
While arbitrators may have less margin to manoeuvre than appellate courts to abandon substantive
precedent as outmoded, in procedural matters arbitrators may possess greater options for innovation. With
respect to strict rules of evidence or document production, the parties may well want less procedural formality
than in court. Such reduced formalism does not mean lack of fundamental fairness, but rather that the arbitrator
can provide a measure of bespoke procedural tailoring in response to the litigants’ request for a more streamlined
process.
92
In Vargas v Insurance Co. of North America, 651 F 2d 838 (2d Cir. 1981), an aviation policy covered
accidents ‘within the United States of America’. The insured died while travelling between two points of the
44 Journal of International Dispute Settlement
requiring recourse to witnesses and exhibits, while the law by its nature
possesses a generality that permits instruction by reading statutes and cases.93
This difference between law and fact plays itself out in the maxim jura novit
curia: the judge knows the law.94 When applied by analogy to arbitrators,95 the
principle facilitates discovery of norms to connect specific events with general
theories for relief, at least if arbitrators look beyond their prejudices.96 Of
course, the fact that arbitrators may engage in direct study of legal authorities
does not mean their award should contain surprises. 97 Providing an
opportunity for the litigants to comment on the law remains vital both to
the arbitrator getting it right and to the parties’ sense of being treated justly.98

United States (New York and Puerto Rico), invoking a canon of construction requiring ambiguities to be resolved
against the drafters (contra proferentem) that has since been excluded in many liability policies. See also Gerald
Leonard, ‘Rape, Murder, and Formalism: What Happens When We Define Mistake of Law?’ (2001) 72 U Colo
L Rev 507, commenting on the English rape case Regina v Morgan where a defendant’s incorrect belief that a
woman consented would be a defence, but not an incorrect understanding of the law.
93
In a sense, we cannot say what the law is for a given dispute until first knowing what law is in general. One
working definition articulates law as an authoritative dispute resolution process that includes principles for
substantive conduct as well as procedures for deciding cases. Francophone jurists distinguish between ‘loi’ and
‘droit’ both of which are ‘law’ for the Anglophone. A tyrant’s statute (‘loi’) might be law in the sense of an
enactment, while contrary to authoritative norms (‘droit’) recognized from a more legitimate vantage point.
English King George III may have made such a distinction for laws of his rebellious American colonies, as did the
colonists for some British taxes before 1776.
94
Not all systems see scope for things in precisely the same way, of course. In England, foreign law will
normally be proved as fact (Rule 18, Dicey and others, The Conflict of Laws (Lawrence Collins, Gen. Ed., 14th
edn 2006), Chapter 9 pages 255ff) while in the United States Rule 44(1) of the US Federal Rules of Civil
Procedure provides that courts in determining foreign law ‘may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.’ For
a case where the principle became relevant, see Ecuador v ChevronTexaco Corporation, 296 Fed. Appx. 124 (2d
Cir. 2008) where an alleged arbitration commitment with a predecessor entity required consideration of
Ecuadorian law. Similar state law principles include New York CPLR §4511 and Massachusetts GL Ch. 233,
§70, directing courts to take judicial notice of foreign law.
95
See Gabrielle Kaufmann-Kohler and Iura Novit Arbiter: ‘Est-ce bien raisonnable? Réflexions sur le statut
du droit de fond devant l’arbitre international’ in A Héritier Lachat and L Hirsch (eds) De Lege Ferenda: Etudes
pour le professeur Alain Hirsch (2004) 71; Gabrielle Kaufmann-Kohler, ‘The Arbitrator and the Law’ (2005) 21
Arb Int’l 631; Julian DM Lew, ‘Proof of Applicable Law in International Commercial Arbitration’ in KP Berger
(eds) Festschrift für Otto sandrock (2000) 581.
96
Instances where eminent judges and arbitrators simply presume a conclusion are not hard to find. See
Petroleum Development (Trucial Coast) Ltd. and the Sheikh of Abu Dhabi, (1952) 1 Int’l & Comp LQ 247,
where Lord Asquith of Bishopstone admitted that the applicable system of law was prima facie that of Abu Dhabi,
then added, ‘But no such law can reasonably be said to exist. The Sheikh administers a purely discretionary
justice with assistance of the Koran; and it would be fanciful to suggest that in this very primitive region there is
any settled body of legal principles applicable to the construction of modern commercial instruments.’ See
generally, Ibrahim Fadlallah, ‘Arbitration Facing Conflicts of Culture’ (2009) 25 Arb Int 303.
97
See generally Hege Elizabeth Kjos, ‘The Role of Arbitrators and the Parties in Ascertaining the
Applicability and Content of National and International Law’ in The Interplay Between National and International
Law in Investor-State Arbitration (forthcoming) ch 5, noting authority for arbitrators’ right to apply a rule of law
not discerned by the parties, provided the award respects principles of non infra petita (no award less than what
has been requested by the parties) and the parties’ right to be heard.
98
The rule that parties must have a chance to comment on applicable law was accepted by the Swiss
Tribunal fédéral in Urquijo Goitia v Da Silva Muñiz (No 4A 400/2008, Ire Cour de droit civil, 9 February 2009).
A fee claim by a soccer player’s agent was rejected by the Fédération International de Football Association
(FIFA) in a decision upheld by the Court of Arbitration for Sport in Lausanne. On the need for exclusive agents
to show a causal link between their activity and the player’s employment, the tribunal relied on a law that neither
side had mentioned. The award was vacated for violation of the right to be heard, art 190(2)(d), Swiss LDIP.
 Arbitrators and Accuracy 45
B. Transnational Norms

1. Between Substance and Procedure

On the substantive merits of a dispute, arbitrators in commercial disputes
usually apply a legal system chosen by the parties.99 A privately negotiated
commercial loan agreement will recite that it is to be construed according to
the law of England, or an insurance policy might state that it shall be
interpreted under New York law. By contrast, an expropriation claim will be
decided under the terms of a bilateral investment treaty in addition to whatever
other principles of international law might be found relevant.100
By contrast, for matters of pure procedure such as briefing schedules or time
allocation at hearings, arbitrators are generally expected to exercise wide
discretion.101 Aside from treating the parties fairly, arbitrators usually fill
procedural interstices by recourse to their experience and guidelines gleaned
from general practice.102
With respect to a third category, questions that contain elements of both
substance and procedure, arbitrators often look to transnational norms of a less
flexible sort, synthesized from various cases and awards. Even if no single fixed
legal system applies, the parties expect discretion to play a lesser role. Such
hybrid matters, where firmer norms apply, include rates of interest, currency
for awards, standards for determining arbitrator bias,103 the propriety of
99
If the parties fail to select an applicable law, few general rules tell arbitrators how to go about the task.
Approaches include (a) conflicts principles they consider ‘applicable’ (English Arbitration Act §46 and
UNCITRAL Model Law Article 28), (b) rules they deem ‘appropriate’ (‘règles que [le tribunal] estime
appropriées’) (French NCPC Article 1496), or (c) the law ‘most closely connected’ with the action (‘les liens les
plus étroits’) (Swiss LDIP Article 187).
100
Article 42 of the ICSID Convention provides for decision pursuant to such rules of law as may be agreed
by the parties, in the absence of which the tribunal must apply ‘the law of the Contracting State party to the
dispute. . .and such rules of international law as may be applicable’. See W Michel Reisman, ‘The Regime for
Lacunae in the ICSID Choice of Law Provision and the Question of Its Threshold’ in Essays in Honor of
Ibrahim Shihata (Fall 2000) 15 ICSID Rev/Foreign Investment L J 362; Emmanuel Gaillard, The Extent of the
Applicable Law in Investment Treaty Arbitration, in Annulment of ICSID Awards 223 (E Gaillard and Y
Banifatemi, eds, 2004). State-to-state arbitrations will normally implicate principles of public international law,
which might also even be relevant to private law subjects such as insurance. See India–US Investment Incentive
Agreement (19 November 1997), providing arbitration of international law claims triggered by political risk
insurance payments of the US Overseas Private Investment Corporation.
101
This is not to say that parties never provide specific guidance on procedural matters. Indeed, both French
and Swiss statutes explicitly allow choice of procedural law (French NCPC, Article 1494, Swiss LDIP Article
182) as does UNCITRAL Model Article 19. Moreover, it is increasingly common to see contracts make
reference to the 1999 IBA Rules of Evidence.
102
Notions of fairness may differ, of course. In one London arbitration the arbitrator refused a right of reply
to the claimant, which then challenged the award for procedural irregularity. The judge upheld the award on the
basis that nothing in the arbitration’s procedural framework said who got to speak last, and the English rule,
giving final word to claimants bearing the burden of proof, did not apply in arbitration. After punting the
question to the arbitrator, the judge also noted that international arbitration normally follows a right to make an
equal number of submissions, which thus created an established practice that accorded with the arbitrator’s
ruling. Margulead Ltd. v Exide Technologies, High Court of Justice (QB, Commercial Court), 16 February [2004]
EWHC 1019 (Comm.) (Colman, J.)
103
See William W Park, ‘The Transient and the Permanent in Arbitrator Integrity’ (forthcoming) 43 San
Diego Law Rev. Particularly in ICSID challenges, subject to no judicial review, the skeleton of broad treaty
notions (someone who may be ‘relied on to exercise independent judgment’) often requires the flesh of detail,
usually supplied by parties invoking specific normative standards from other sources.
46 Journal of International Dispute Settlement
dissenting opinions,104 notions of issue preclusion, res judicata and lis
pendens,105 and even the process for determining applicable law.106

2. The Arbitrator as Synthesizer

In the juridical twilight between procedure and substance, two problems
illustrate why and how arbitrators engage in legal synthesis. One relates to
joinder of non-signatories, as when a parent corporation is alleged to have
agreed to arbitrate through the agency of a subsidiary. The other implicates
claims of lawyer/client privilege in the face of document production requests.
In each instance, arbitrators who care about accuracy and fairness may need to
synthesize transnational norms from several legal systems that inform their
decision.

a. Non-Signatories and Implied Consent

Sometimes a claimant seeks the deeper financial resources of the respondent’s
parent company, even though the shareholder never signed the arbitration
clause. For example, a French company might allege that the shareholder of its
American counterparty had implicitly agreement to arbitrate through behaviour
evidencing the agency of its subsidiary. Or, a respondent parent might invoke
an arbitration clause signed by its subsidiary to avoid an alternate forum
perceived as unfavourable.
When arguments for joinder rest on implied consent, the arbitrator’s job of
determining an applicable law to decide the matter may not be simple.107
While judges understandably start from the law of whatever forum pays their
salary, arbitrators find the genesis of their power in private decisions.
Traditional approaches include the law of the contract and the law of the
arbitral situs.108 Yet both may involve a circular exercise that presumes its
conclusion when identification of who agreed to arbitrate constitutes the very
104
Harm Peter Westermann, ‘Das dissenting vote im Schiedsgerichtsverfahren’ (März/April 2009) 7 Schieds
VZ 102; Laurent Lévy, ‘Dissenting Opinions in Switzerland’ (1989) 5 Arb Int’l 35.
105
International Law Association, Final Report on Lis Pendens and Res Judicata, with introduction by Filip
De Ly and Audley Sheppard (2009) 25 Arb Int’l 1. Recommendation 2 states that the conclusive and preclusive
effects of arbitral awards in further arbitral proceedings ‘need not necessarily be governed by national law and
may be governed by transnational rules applicable to international commercial arbitration.’
106
Although the chosen law relates to the substantive merits of the dispute, the decision to apply a given
legal system would normally take the form of a ruling on procedure. See eg §34(2)(g), 1996 English Arbitration
Act. Finding applicable law might implicate multiple systems either as a matter of dépeçage among various issues,
or because several contracts intertwine. See eg Forsikringsaktieselskapet Vesta v JNE Butcher [1989] AC 852 (HL).
107
Apart from implied consent, the gateway to arbitration may also rest on disregard of a corporate veil.
While this approach lends itself to easier analysis, with the starting point in the subsidiary’s law of incorporation,
even that rule may not always provide firm answers. In First National City Bank v Banco Para el Comercio Exterior
de Cuba (Bancec) 462 US 611, 613 (1983), the US Supreme Court addressed Cuba’s attempt to collect money
from an American bank whose assets it had just confiscated, and applied equitable principles ‘common to
international law and federal common law’ to permit the value of expropriated assets to be credited against sums
due under a letter of credit.
108
Rule 57, Dicey, Morris and Collins, The Conflict of Laws (Lawrence Collins, Gen. Ed., 14th edn, 2006)
speaks of the ‘material validity, scope and interpretation’ of an arbitration agreement as being governed by its
applicable law. In the absence of explicit choice, this is said to be the law most closely associated with the
arbitration agreement, generally the law of the arbitral seat.
 Arbitrators and Accuracy 47
question to be decided. The contract’s applicable law, and the law of the
arbitral seat, will be foreign to an entity that remained a stranger to the
transaction. The arbitrator thus confronts a dilemma not unlike that of
the proverbial chicken and egg, and must be wary of starting with a law derived
solely from one side’s version of the disputed facts.
For these reasons, arbitrators often seek guidance in transnational norms
articulated by scholars and in published awards. Such norms address the
circumstances under which an arbitration clause might be extended to a
non-signatory, for example, by virtue of the parent company’s behaviour in
negotiations and contract formation, or performance of related contracts which
form part of a single contract scheme constituted by multiple agreements.109
Such transnational norms often serve as the best indicator of the reasonable
expectations of litigants from diverse legal cultures. They apply for want of any
better way to promote fair dispute resolution in a global community where not
all accept one national law.

b. Lawyer-Client Privilege
The confidentiality of lawyer–client communications serves as another illus-
tration of why and how arbitrators synthesize legal norms in transnational
cases.110 Although professional secrecy exists in many legal systems,111 the
lawyer-client relationship takes on a special importance in disputes that
implicate ‘common law’ procedures. If a party may be compelled to produce
documents adverse to its case, privilege becomes one escape hatch from the
other side’s prying eyes.112
Problems arise even in disputes between litigants from closely connected
legal cultures such as those of England and the United States.113 English ‘legal
professional privilege’ divides between ‘legal advice privilege’ and ‘litigation
privilege’ in a way that presents analogues (not always perfect ones) to the
109
See generally, William W Park, ‘Non-signatories and International Contracts: An Arbitrator’s Dilemma’
in Multiple Party Actions in International Arbitration 3 (PCA 2009). Many commentaries on the subject begin
with the ‘group of companies’ doctrine as expressed in ICC Award No. 4131 of 1982 (Dow Chemical). See I Receuil
des Sentences Arbitrales de la CCI: 1974-1985 (Sigvard Jarvin and Yves Derains, 1990) 146; Paris Cour d’Appel, 21
October 1983, 1984 Rev Arb 98.
110
See eg Richard Mosk and Tom Ginsburg, ‘Evidentiary Privileges in International Arbitration’ (2001) 50
Int Com L Q 345; Norah Gallagher, ‘Legal Privileges in International Arbitration’ (2003) 6 Int’l Arb L Rev 45;
Klaus Peter Berger, ‘Evidentiary Privileges: Best Practice Standards vs. Arbitral Discretion’ (2006) 22 Arb Int’l
501; Gary Born, International Commercial Arbitration 1910–14 (2009). One decision in the House of Lords (as
it then was) referred to privilege as a ‘fundamental human right’. R (Morgan Grenfell Ltd.) v Special Commissioner
[2002] HL 21, para 7; [2003] 1 AC 563.
111
In a civil law system such as Switzerland, a secrecy obligation binds the lawyer not as a matter of the law
of evidence, but as a matter of professional conduct. The master of the information will normally be the lawyer
rather than the client. If the document falls into the wrong hands, it could normally be considered as evidence.
112
US Federal Rules of Civil Procedure Rule 26(b) provides, ‘Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant
to any party’s claim or defense . . . .’
113
One finds such conflict regularly in arbitration arising from so-called ‘Bermuda Form’ insurance, where
New York law governs policy interpretation while English principles apply to the many of the arbitration’s
procedural aspects. See Richard Jacobs and others, ‘Liability Insurance in International Arbitration’ (2004).
48 Journal of International Dispute Settlement
American notions of ‘attorney-client’ privilege and the ‘work product’
doctrine.114 Yet battle lines form around much narrower questions such as
whether privilege has been waived by implication, whether the ‘common
interest privilege’ precludes assertion of privilege between joint clients, and
whether the sender of a memo did so in her capacity as a lawyer or business
manager, which in turn would implicate notions such as ‘preponderant
purpose’ or ‘principal purpose’ depending on the case law.115
In some jurisdictions the arbitration may provide some help. For example,
the English Arbitration Act says that the tribunal shall decide ‘all procedural
and evidential matters’116 and imposes no preference whatsoever for English
rules. This still begs the question, of course, whether privilege should be
characterized as substance or procedure, or perhaps a bit of both.
An arbitrator might contemplate applying the rules of the place where a
letter or memo was created, to meet expectations held by the drafters of the
communication regardless of their legal culture. Such an approach gives short
shrift to the understandable anticipation of equal treatment. In countries like
the United States, communications with in-house counsel may well benefit
from the attorney–client privilege,117 while in Europe professional secrecy
attaches to lawyers who exercise an ‘independent’ activity.118 A ‘place of
drafting’ rule would protect documents written by an in-house lawyer in New
York, but not advice given by an in-house counsel in Geneva.119 Instinctively,
good arbitrators shrink from giving one side the type of stark procedural
handicaps that invite award annulment.120
Although it does not solve all problems, the most reasonable approach to
privilege lies in synthesis among several systems. The arbitrator’s job will be to
give fair and open-minded consideration of whatever authorities supply
information about the parties’ shared expectations on the notions of privilege
the parties intended to apply, or would have intended had they thought
114
Hickman v Taylor, 329 US 495 (1946).
115
On the scope of legal advice privilege in England, see Three Rivers DC v Bank of England (No 5) [2003]
EWCA Civ. 484, [2003] 3 WLR 667, and Three Rivers DC v Bank of England (No 10), [2003] EWCA 2565
(Comm.), appeal dismissed [2004] EWCA Civ. 218. For American analogues, see Federal Rules of Evidence,
Rule 501, which leaves attorney-client privilege to the common law. See generally, In Vincent Walkowiak (ed.)
The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality (4th edn 2008).
116
Sections 34(1) and (2)(d), 1996 Arbitration Act, which includes in procedure a determination of what
classes of documents will be disclosed.
117
NCK Organization Ltd v Bregman, 542 F 2d 128, 133 (2nd Cir. 1976).
118
For example, in Switzerland the notion of lawyer (avocat/Rechtsanwalt) depends on activity of an
‘independent’ character. Employment as an in-house counsel thus disqualifies from lawyer status. See art 231,
Code Pénal and art 13, Loi fédérale sur la libre circulation des avocats (23 June 2000), establishing the obligation of
professional secrecy. In general, the right to represent clients is limited to practicing lawyers and university
professors.
119
One authority suggests that in practice both parties will be able to claim privilege in accordance with
whatever rules are most restrictive on the duty to disclose. See David St. John Sutton and Judith Gill, Russell on
Arbitration, at sections 5–135.
120
In judicial actions the problem will normally not arise in the same way, since courts (at least in common
law traditions) generally treat privilege as within the law of evidence, and thus governed by the lex fori rather than
the lex causae. See Dicey and others, The Conflict of Laws (Lawrence Collins, Gen. Ed., 14th edn 2006), Rule 17,
§7-015 at 184.
 Arbitrators and Accuracy 49
about it. Thus in practice, arbitrators might look to judicial authorities from
various common law jurisdictions, including perhaps persuasive authority from
Australia, New Zealand or Canada, as well as England and the United States.
Such is the essence of synthesis, which like other forms of truth-seeking will
inevitably require some investment in time and effort on the part of counsel
and arbitrators.

C. Prior Awards
The effect of prior awards in other cases also affects the way arbitrators seek
legal accuracy. Absent res judicata or issue preclusion arising for the same
parties and the same claims or issues,121 arbitrators do not usually deem
themselves bound by rulings of other tribunals, at least not in the way judges
feel constrained by decisions of superior courts in a unified and hierarchical
national system.122
This does not mean that prior awards will be ignored. To the contrary,
decisions of other arbitral tribunals often get taken into account as constituting
a corpus of principles representing the litigants’ shared expectations. While not
given the status of precedent in a narrow common law sense, awards of
respected arbitrators may bolster support for results in other cases,123
providing information about what the relevant community considers the right
approach to similar problems.124 For litigants, this information can serve as a
tool of persuasion. For business managers and government planners, it
provides one way to predict how future disputes will be resolved.125 And for
121
While res judicata prevents the same parties from re-litigating the same cause of action after it has already
been adjudicated in an earlier lawsuit, notions of issue preclusion come into play when a second but different
lawsuit implicates questions decided in a prior action, the re-litigation of which questions is then barred. French
doctrines of force de chose jugée and German concepts of rechtskräftiges Urteil play roles similar to those of res
judicata in the common law tradition.
122
Within a single jurisdiction, a measure of uniformity can be imposed from the top down so that one case
furnishes authority for decisions in similar fact patterns with similar questions of law. In theory, Continental and
‘common law’ traditions take different views of precedent. Article 5, French Code civil, forbids judges from
purporting to make general rules: Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire
sur les causes qui leur sont soumises. In practice, however, the difference between traditions may not be so great. See
generally, Denis Tallon, ‘Précedent’ in Dictionnaire de la culture juridique (2003) 1185–7. Still, common law
emphasis on the difference between ‘holding’ and ‘dictum’ in a case may not be shared in all traditions, with
some Continental jurists reading decisions of their highest courts as if they were legislative texts.
123
One authority has suggested that for international arbitration precedent exists as ‘decisional authority that
may reasonably serve to justify the arbitrators’ decision to the principal audience for that decision’. Barton
Legum, ‘Definitions of Precedent in International Arbitration’ in E Gaillard and Y Banifatemi (eds) Precedent in
International Arbitration 5, 14.
124
For an illustration of the delicate ambivalence arbitrators feel about prior awards, see ICSID Case No
ARB/02/17 AES Corporation v the Argentine Republic, Decision on Jurisdiction of 13 July 2005, at paragraph 30,
which asserts that each arbitral tribunal ‘remains sovereign and may retain, as it is confirmed by ICSID practice,
a different solution for resolving the same problem....’ Following a semicolon, the sentence then adds that
decisions ‘dealing with the same or very similar issues may at least indicate some lines of reasoning of real
interest; this Tribunal may consider them in order to compare its own position with those already adopted by its
predecessors and, if it shares the views already expressed by one or more of these tribunals on a specific point of
law, it is free to adopt the same solution.’ Ibid 11.
125
One ICSID ad hoc committee has suggested that arbitral tribunals bear responsibility for creating ‘une
jurisprudence constante’ (coherent and consistent body of case law) in the field of international investment law.
50 Journal of International Dispute Settlement
the arbitrators, prior rulings can justify awards to the rest of the world and
enhance the prospect that similar cases will be treated similarly.126

D. Amiable Composition
In some circumstances litigants authorize arbitrators to disregard the strict
rigors of otherwise applicable law, and decide in a way that the arbitrators
deem fair and equitable.127 Drawn from French law, amiable composition
describes a process whereby arbitrators temper legal rules whose strict
application violates what seems right in the circumstances.128 Common
examples include adjustment of payment due to substantial completion of a
project, price changes due to alternation in the fundamental economic balance
between the parties, and adjustment of terms in the event of unexpected
inflation or exchange rate modification.129
In stipulating to amiable composition, parties tell arbitrators to pursue a
different sort of truth. Rather than aiming at legal accuracy, the arbitrators
reach toward general notions of ‘right’ encrusted with emotional overtones and
sometimes in tension with court decisions, statutes or strict contract terms.130
A long-standing debate surrounds whether amiable composition amounts
to the same thing as decision-making ex aequo et bono, according to the

ICSID ARB 03/06, MCI Power Group and New Turbine v Republic of Ecuador, Decision on Annulment of 19
October 2009 (Ad Hoc Committee: Dominique Hascher, Hans Danelius; Peter Tonka), para 24, rejecting
annulment of the award of 31 July 2007 for finding non-retroactivity of the US-Ecuador BIT. See also ICSID
Case No ARB/02/6, SGS Société Générale de Surveillance S.A. v Republic of the Philippines, Decision of the
Tribunal on Objections to Jurisdiction of 29 January 2004, para 97.
126
For investor–state treaty disputes, jurisdictional questions such as ‘most favoured nation’ prove fertile
sources for de facto precedent. See Gabrielle Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or
Excuse?’ (2007) 23 Arb Int’l 357; Tai-Heng Cheng, ‘Precedent and Control in Investment Treaty Arbitration’
(2007) 30 Fordham Int’l L J 1014; Jeffrey P Commission, ‘Precedent in Investment Treaty Arbitration’ (2007)
24 J Int’l Arb 129. Precedent is also common in ‘trade arbitration’ (maritime, commodities and reinsurance). See
Michael Marks Cohen, Letter (Summer 2009) 10 Int’l Arb Q L Rev 113.
127
See French NCPC art 1474, applicable in purely domestic arbitrations, and art 1497, applicable in
international cases. For international contracts, references to amiable composition may assume less precise
contours than provided under French law, a bit as ‘due process’ has come to be used in arbitration without
necessarily drawing its significance from US law.
128
See Eric Loquin, L’amiable composition en droit comparé et international: Contribution à l’étude du
non-droit dans l’arbitrage commercial (1980), juxtaposing ‘non-droit’ (non law) and ‘droit comparé’
(comparative law). See also, W Laurence Craig, William W. Park & Jan Paulsson, ICC Arbitration (3rd edn,
2000) §§3.05 at 110–14. Only in a very limited sense does amiable composition overlap notions of public policy as
defences to contract claims, which have long been seen as an ‘unruly horse’ that may carry us to unknown places.
See Richardson v Mellish (1824) 2 Bing. 229 at 252, where a captain sued for reinstatement as master of a ship
whose command the owner had given to a nephew in contravention of policies in that day against selling
command of important vessels.
129
For an empirical study of decisions ex aequo et bono (as discussed below, a close cousin or even sister to
amiable composition), see Martim Della Valle, Decisões por Equidade na Arbitragem Comercial Internacional (Doctoral
Thesis, University of São Paulo, May 2009; copy on file with author) ch 8, at 372–402; English version, On
Decisions ex Aequo et Bono in International Commercial Arbitration, Chapter 8 ‘Field Research’ at 188–21.
130
See Mathieu de Boisséson, Le droit français de l’arbitrage (1990), s 371 at 315, suggesting that equité
remains the goal (le but) not the means (le moyen) of amiable composition.
 Arbitrators and Accuracy 51
‘right and good’.131 While the two notions are often used interchangeably, they
may not be coextensive in all minds. Arbitrators who decide ex aequo et bono
normally begin and end with a private sense of justice, going directly to a
personal view of the right result. With amiable composition another option would
present itself, directing arbitrators to start at rules of law, but depart only if
needed to achieve a just result.132 The difference is significant, given that there
is nothing inherently unjust bout most norms of commercial law.
With respect to the substance of economic transactions, such as a seller’s
right to be paid or the insured’s right to be reimbursed, the slim objective
content of notions such as fairness (if divorced from legal norms) makes the
concept problematic.133 Inherently chameleon-like, changing colour depending
on background and perspective, ad hoc fairness that ignores legal rules risks
reducing the information with which companies and governments evaluate risks
and make choices. Nor will concepts of substantive fairness long satisfy the
public interest in the stable economic environment that obtains when claims
and defences in one case are treated like those advanced in similar disputes
subject to similar norms.134 Only an explicit mandate normally justifies an
arbitrator’s shift from a search for legal truth to the pursuit of subjective
fairness.

5. From Oracle to Evidence

The Yale University seal bears an open book with two Hebrew words
transliterated Urim and Thummim. Sometimes rendered ‘light and truth’,135
this Biblical expression designates a truth-seeking oracle, perhaps precious
131
The Arbitration Rules of the International Chamber of Commerce, which in art 17(3) permit amiable
composition only if agreed by the parties, mentions both an amiable compositieur and ex aequo et bono, saying that a
tribunal may (if authorized) ‘assume the powers of an amiable compositeur’ or ‘decide ex aequo et bono.’ The
French version follows a similar structure. The disjunctive ‘or’ leaves two distinct notions, as in ‘law or equity’. In
some instances, however, words so joined might simply be different ways of expressing similar concepts, as when
each citizen may worship according to dictates of his faith or belief system.
132
See Philippe Fouchard and others, Traité de l’arbitrage Commercial International (1996), s 1502 at
836–7. The authors seem to admit the option either to proceed directly to justice or first to consider the
applicable law. Nevertheless, they suggest that such a nuance lacks significance (‘une telle distinction . . . paraı̂t
artificielle’) because the arbitrators can always do what they think justice requires.
133
By contrast, in the realm of procedure the term ‘fairness’ serves as short-hand for generally accepted
principles, such as right to be heard and equal treatment.
134
Imagine an arbitrator hearing claims against a banker who wrongfully refused to return the entirety of a
customer’s funds. ‘Last month I deposited $1,500’, says the customer. ‘Ah, yes’, replies the banker. ‘But today
such dreary historical facts must yield to aesthetic and moral concerns for balance, symmetry and charity. Thus
we have rounded your account down to $1000 and transferred the balance to a more deserving person.’
135
Early English translations fixed Urim as ‘lights’ and Thummim as ‘perfections’ following the original plural
form. Ultimately Yale augmented its seal with the Latin, Lux et Veritas. The Hebrew motto seems to have been in
place well before 1778, when Yale’s new President, Ezra Stiles, made Hebrew a required course on the
assumption that educated gentlemen should be familiar with the language of Scripture. Stiles himself had learned
Hebrew while a pastor in Rhode Island, studying with Isaac Touro (namesake of the Sephardic synagogue
designed by New England architect Peter Harrison) and an itinerant rabbi from Hebron named Chaim Karigal,
who somehow stopped in Newport amid visits to Paris, London, Prague, Vienna, Aleppo and Curacao. For a
historical tour of the Yale seal, see Dan Oren, Joining The Club: A History of Jews and Yale (1985; 2nd edn, 2001),
Appendix I.
52 Journal of International Dispute Settlement
stones, held in the breastplate of the High Priest in ancient Israel.136 In
response to questions put in binary fashion, the oracle would give one answer
or the other. For example, the Priest might ask if sin during battle lay with the
troops or the king, letting the oracle show Urim for the king and Thummim for
the soldiers.137
Shifting forward several millennia, most legal cultures have replaced oracles
with testimony from individuals with knowledge of specific events or
subjects,138 usually supported by documentary exhibits. While such
truth-seeking tools may not yield the perfection of oracles (and in any event
still require decisions about what testimony should be deemed reliable139), they
do help arbitrators determine which side’s narrative bears a closer connection
to reality. Without such tools, whose application can take time, vindication of
rights would be even more unpredictable than it now is, with little reason to
expect that success would fall to the legitimate claimant rather than the
dishonest fraudster.
A notion of proportionality lies at the heart of intelligent truth-seeking in
arbitration, accommodating the interconnected pillars of due process and
efficiency. Hearing both sides enhances the prospect of award outcomes that
comport with reality. Yet more testimony does not always bring enough
enlightenment to justify the time and expense. And some arguments prove as
helpful as water to a drowning man. In international disputes, finding the right
balance implicates an accommodation among different legal cultures with

136
The nouns together take a meaning greater than the sum of their parts, and convey a broader and more
complex message than simple addition of the two components. They constitute a hendiadys (from Greek hèn dià
duoı̂n, or ‘one through two’), as in ‘law and order’, ‘sound and fury’, ‘Sturm und Drang’, ‘Nacht und Nebel’,
‘croix et bannière’ or ‘chagrin et pitié’.
137
In I Samuel 14:41–42 someone disobeyed a ban on eating during battle. King Saul asked, ‘If the fault lies
with me or my son, respond with Urim; but if with the troops, show Thummin’. After exonerating the troops, the
oracle was consulted again and guilt fell on Jonathan who confessed to tasting honey during combat. The oracle
first appears in Exodus 28:30, and again in Numbers 27:21, Deuteronomy 33:8 and I Samuel 28:6. The precise
manner for its consultation has been lost. Perhaps letters would light up or protrude when the priest prayed.
Some scholars suggest a process not a device. Of course, recourse to oracles did not mean absence of testimonial
proof in Biblical times. See Deuteronomy 19:15 and II Corinthians 13:1.
138
The day of the oracle has not completely disappeared. See Oscar G Chase, Law, Culture & Ritual (2005),
providing a comparative tour of litigation that begins with the Azande people of Central Africa. During the time a
small chicken swallows fluid containing a ritual poison, the chief asks about the guilt of a couple accused of
adultery. ‘Oracle, if they slept with each other, let the chicken die.’ When the animal expires, the man and woman
confess. Discussing American justice later in this work, Professor Chase suggests that the oracle may be no less
idiosyncratic than the American civil jury. Ibid at 15–16, and 40–41.
139
Most American litigators will be familiar with ‘Daubert motions’ to promote reliability of expert
testimony, so named from Daubert v Merrell Dow Pharmaceuticals, 509 US 579 (1993). Fundamental questions
about testimonial reliability are not new, however. During the Salem Witch Trials of 1692, New England farmers
challenged the value of ‘spectral evidence’ based on testimony about a person’s spirit. John Alden, son of the
famous Plymouth settler of the same name, had been charged with sorcery on return from Québec, where he had
gone to ransom Englishmen imprisoned by the French. After girls collapsed in torment from his specter, Alden
asked rhetorically why his spirit did not so affect the judges. Doubts later caused Increase Mather, President of
Harvard, to suggest that ten suspected witches should escape rather than one innocent person be condemned on
spectral evidence. See Richard Francis, Judge Sewall’s Apology (2005) at 181–2; Eve LaPlante, Salem Witch Judge
(2007) at 136–42, 192; Salem Witch Trials Reader (F Hill, ed. 2000) xxii, 74, with excerpt from Robert Calef,
More Wonders of the Invisible World (1706).
 Arbitrators and Accuracy 53
disparate base lines. Even if universally accepted standards remain elusive,
however, some prove more workable than others.
In the search for creative case management tools, award accuracy remains
the lodestar. Efficiency without accuracy will prove an empty prize. Until the
world evolves to the point where people abandon attempts to vindicate rights,
some market will exist for a mechanism that emphasizes deciding legal claims
correctly by determining what happened, what was agreed and what the law
provides. If simple peace-making were to become the norm, arbitration as a
truth-seeking process would need to be reinvented.