CAS

Award writing – are there any secrets?

by Christian Oetiker, VISCHER AG, Basel

Together with Christian Benz and Simon Gabriel, I had the pleasure of participating in the session on award writing at the Swiss Arbitration Academy. The session was part of Module 4 and took place in Zurich at the end of January 2019.

Daniele Favalli, responsible for Module 4, had invited us to speak on two or three aspects of award writing that each of us deemed important. Very interesting was that every speaker highlighted different aspects. This led to a lively debate involving the speakers and participants of the Academy.

Excellent quality and a pleasure to read

My two points were that an award should be at the same time of excellent quality and a pleasure to read. I suggested that there are three ingredients necessary to achieve both: a good structure, a fact driven assessment of the parties' arguments, and clear conclusions.

A good structure

What is a good structure for an award? I like to paraphrase this as a sound combination of a text telling a story which is interesting to read and a telephone book in which you can easily find what you are looking for. Indeed, the award must be written in a way that it is interesting to read it from the beginning to the end. At the same time, the structure must allow the reader to find specific aspects quickly.

The first part of the award should set the scene. This is particularly important for readers who did not participate in the proceedings such as a state court dealing with set-aside proceedings. This part will usually contain an introduction, a description of the terminology used in the award, the parties (the "actors" in the story) and the contractual relationships, the factual background and the procedural history. This first part will also deal with jurisdiction and the governing law.

The second part of the award then contains the assessment of the parties' claims. It will usually start with a broad overview of the parties' positions (describing the "essence" of their case) and the relevant issues. The structure of this part will depend on the arbitral tribunal's legal analysis of the case. The sequence of the issues dealt with is important and must be logical and convincing.

Then this second part will proceed to deal with each pertinent issue in turn. I suggest applying the following structure: claimant's position, respondent's position, the applicable legal framework, the applicable contractual framework, the arbitral tribunal's assessment, and the conclusions (what does it mean in relation to the claim?). Following this structure will not only help the reader, but also the author of the award.

A fact driven assessment of the claims

In this second part, an important ingredient is a fact driven assessment. What do I mean by that? When setting out the parties' positions, the award should spell out what the parties actually said in their briefs and at the hearing and refer to witnesses statements. The award should avoid general descriptions of the parties' positions or the arbitral tribunal's assessment, but be specific and rely on what the parties and their witnesses specifically said. Citing statements verbatim may be a good tool to achieve this. The parties must be able to recognize their own case in the text. If they do not, this will cast doubt on the quality of the award.

Clear conclusions

Finally, the arbitral tribunal should be brave in stating clear findings and conclusions. This means that the award must make clear why a question was dealt with, what conclusions were reached regarding this question, and what impact or importance this conclusion has on the overall assessment.

The result will be an award that is well structured, takes into account what the parties and the witnesses actually said, and draws clear conclusions. In short: excellent quality and a pleasure to read.

Experts in international arbitration

by Dr. Nicole Moerchen and Thomas Hofbauer, FTI Consulting, Munich

In our presentation we addressed the different roles of an expert witness, i.e. party appointed versus tribunal appointed or single joint expert witnesses in different jurisdictions. We also discussed pitfalls when dealing with expert witnesses such as jeopardizing their impartiality. The topics of expert reports may be very complex and difficult to understand. Therefore, not only the content of such a report but also the structure is of high importance. As we write the report not for ourselves but the addressees we always start with the question who they are and which background they might have. A report that nobody understands is useless. We normally put the executive summary at the beginning of the report as this is helpful to get an understanding of the overall approach of the expert and the core questions and findings. We also find it very helpful briefly introduce each section of a report with an explanation of what the reader will be presented over the next pages. And finally, if technical issues are presented, it is important to explain them in a common language rather than just in expert terms.

The topic of expert meetings were widely discussed in the session. From our expert perspective we normally appreciate to have the opportunity to clarify issues and approaches between the experts. Based on such an understanding the experts may be able to explain to the tribunal why their findings and conclusions are deviating. Counsels perspective was different. They have the fear of having no control of the meeting and its outcomes. Also, client’s might be concerned if counsel is still controlling the process while having an expert meeting.

After a nice lunch, the participants were divided into groups for the annual role play. One group represented the tribunal, another group represented party A and its expert. The last group represented party B and its expert.

As usual, no one would like to be the expert. Nevertheless, the two appointed experts represented their characters in a professional way, corresponding to the description and behaviour stated in the mock-expert reports.

The role play was very dynamic. The Tribunal tries to keep the power over the proceedings by proper time management and allowed questioning time. Counsel raised objections and tried to push their expert opinion forward. Once the expert was so engaged in the proceedings that he started discussions with counsels and tribunal, addressing questions to each of them. But the tribunal was able to calm down the situation and to keep control over the proceedings. 

At the end of the day, it became clear that the selection of the appropriate expert is not so easy as everyone thought at first. The expert selection depends on the case, the required expert expertise, the expected expert behaviour and in how far the expert is able to deal with stressful situations.