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Hélène Ruiz-Fabri (Max Planck Institute Luxembourg for International, European, and Regulatory Procedural Law), led Thursday’s discussion on the importance of procedure as a vehicle for substance and its potential key role in whether justice is done or denied, or seen to be done or denied. The panel was structured around five procedural issues encountered in practice.
The first topic presented to the distinguished panelists was the increase in number, scope, and volume of written submissions. Caline Mouawad (King & Spalding LLP), noted this question implied a value judgment: the answer depends on whether one viewed the issue from the position of counsel or arbitrator. Quoting Lucy Reed – “Focus not so much on what may go on in an arbitrator’s head but more on how much can fit in an arbitrator’s head” – she warned that the impulse of counsel to build a mountain of evidence may be counterproductive. Many arbitrators call for change: ranking them on a value spectrum, Ms. Mouawad quoted Michael E. Schneider, who advocates for interactive arbitrators; Constantin Partasides, who calls for the installment of an initial discussion between arbitrators and counsels regarding the content of the submissions; and finally Lucy Reed. Dirk Pulkowksi (Permanent Court of Arbitration) added that the cause of the marked increase of written submissions is not solely the industrialization of advocacy but also a general desire by counsel to leave many options open rather than concentrate on one case theory, in order to ensure that they do not miss the chance to get certain information in. He noted the need for a corresponding flexibility on the tribunal’s part to solve this issue.
The second point of discussion was the effective and efficient design of hearings and a reflection on the value of an interventionist approach by judges/arbitrators. Clara Brillembourg (Foley Hoag LLP) noted that two procedures influence substance most: (1) the examination of experts/witnesses; and (2) the questions asked during the hearing. Regarding (1), many courts have been somewhat disinclined to use the examination of witnesses/experts. The turning point in the procedural use of experts/witnesses was Pulp Mills, in which several judges expressed their preference for experts, who were then acting as counsel and advocating parties’ positions, not to be part of the advocacy team. Ms. Brillembourg noted a difference in investor-state disputes, where expert testimonies abound, which are however not always critical to the resolution of the dispute. As for (2), she conceded that most counsels welcome questions – even more, questions are critical as they serve to crystalize arguments. VV Veeder (Essex Street Chambers) added some humor to the panel with an entertaining anecdote on cultural differences in the use of questions during hearings: where one counsel from the UK would feel he was “addressing an empty cave” when the judges asked only one (irrelevant) question, his French opposing counsel might find the bench “equally dreadful” – but because “they interrupted me!”.
Ms. Ruiz-Fabri then took the conversation towards methods of evidence taking. Mr. Pulkowski explored a theory of procedural justice of which rules of evidence inherently form part. He points to three questions which may arise in this regard. First, whether the process actually produces substantive outcomes, which depends on the quality of evidence presented (accuracy model). Second, the question of the need to find a balance between cost and benefits of the procedure (balancing model of procedural justice). And thirdly, we must ask ourselves whether the process itself is intrinsically just (participation model). Mr. Pulkowski proceeded to discuss the option of site visits by the tribunal or experts to examine the factual situation more clearly, examples of which include the Gabcikovo-Nagymaros (ICJ), and the Guyana/Suriname arbitral case (PCA). The Courts and tribunals generally decline to give any formal value to site visits but Mr. Pulkowksi points to their procedural justice value, referring again to the Guyana/Suriname case where one party had more access to confidential information than the other which was resolved through sending a scientific expert to the site under dispute. Ms. Brillembourg picked up on this topic from a counsel’s perspective, acknowledging the value of site visits. In terms of procedure, this means that it is important that parties are in agreement on the details of the visit, which may be time-consuming and costly. In this sense there is a preference for ad hoc tribunals rather than the ICJ and a possible solution is to have a smaller contingency on site instead of the entire bench. Ms. Brillembourg also offered an example of good practice: to offer a summary of expert reports to the Court to help focus the arguments in cases which present a mountain of evidence.
In a follow up on this topic Ms. Ruiz-Fabri directed the panel towards discussing court-appointed experts. VV Veeder noted that the underlying assumption in this question – that there are no appropriate experts on the tribunal – is sadly true in most cases where the arbitrators are invariably lawyers, with some notable examples such as the water expert as arbitrator in the Indus Waters Kishenganga arbitration. VV Veeder envisaged a more flexible role for court-appointed experts as translators who work with the parties and find why their experts' evidence oppose each other. Often, this discrepancy is based on the different assumptions the party-appointed experts are presented with. Ms. Ruiz-Fabri redirected the conversation to ask whether it is a viable solution to have an expert judge being part of the bench. Mr. Pulkowski in response pointed to the two roles experts may have in proceedings: a formal source of evidence, or a translator and interpreter of the scientific evidence presented by the parties. The translator role is very helpful for arbitrators but may raise concerns from the perspective of counsel. Avenues to address these are full transparency in the appointment process and the appointment of a committee of experts, as was done in Corfu Channel. He noted this ambiguity could be remedied by appointing an expert as arbitrator, which was successful in the Indus Waters Kishenganga arbitration. Mr. Pulkowski sees potential for this model to be transplanted to other cases, when the tribunal has at least 5 members.
Finally, the panel addressed methods to improve communication flows. Ms. Brillembourg indicated that it is important for a court or tribunal to communicate to the parties and counsel the issues that are not sufficiently addressed in written submissions. At the same time this guidance should not narrow or restrict the parties to articulate what they believe is important in the dispute. Ms. Mouawad supported involvement of the tribunal earlier on and real time feedback which would add to the relevance of and confidence in the outcome. Mr. Pulkowski pointed to the different channels of communication, the tribunal, the registry and the parties, which can all help align expectations and increase acceptability of the proceedings. There is a big role for the registry for arranging matters related to procedure, such as arranging site visits and timing. All of this comes back to procedural justice, every channel of communication is important and increases the involvement of the parties in the process that fuels the outcome. VV Veeder supported the idea of the registry as a channel of communication to exchange information thereby avoiding communication with the tribunal by only one party. In response to Ms. Mouawad and Ms. Brillembourg’s remarks on early intervention VV Veeder warned "be careful what you wish for, you cannot expect a draft award before it starts."
Jasmine Rayée, LL.M. Candidate (Columbia Law School), and Sophie Schiettekatte, LL.M. Candidate, Advanced Public International Law (Leiden Law School)