Author: Robert H. Smit*
Published: January 2013
Description: Many of the letters, cards and emails of condolence that I received after my father, Professor Hans Smit, passed away last year were from lawyers who had appeared before my father, serving as arbitrator, in international arbitrations. Most said very nice things about my father, some over the top: “worthy of canonization,” “a force of nature,” “Odysseus,” an “icon.” Others were kind but more restrained (coming perhaps from attorneys whose clients fared less well before my father): “creative,” “indomitable,” “fair but scary.” One of my favorites, from a non-native English speaker, was even more neutral, describing my father simply as a “large man.”
While I never had the privilege of appearing as counsel before, or serving as arbitrator with, my father in an arbitration for obvious conflict reasons, he and I spoke frequently over the years about arbitrator selection in international arbitrations, both generally and in connection with particular arbitrations in which we were involved. Because I was unable to follow my father’s golden rule in arbitrator selection – “Just choose me” – I received the benefit of Professor Smit’s more detailed thinking concerning the selection of sole arbitrators, chairs of threemember tribunals, and party-appointed arbitrators in international arbitration. One way to reminisce about my father, I thought, might be to apply his own wit and wisdom of arbitrator selection to the selection of Professor Smit himself as arbitrator: would Professor Smit have been a good choice as arbitrator, applying his own criteria for arbitrator selection? The answer: an unequivocal yes (usually)!
I. PROFESSOR SMIT’S GENERAL APPROACH TO ARBITRATOR SELECTION
My father always told me to ask two basic and rather obvious questions when selecting arbitrators for a particular case:
First, will the arbitrator candidate likely reach the correct or desired result in his or her award? The correct result and the desired result, of course, are not always the same. For a party with a good case on the merits, the correct and desired result may be the same or at least similar. But for a party with a weak case, the desired result may be quite different from the correct result. Because the right result is not always so clear – for example, one party’s case may be stronger on the letter of the contract while the other party’s case is stronger on the equities – identifying arbitrators likely to reach the correct or desired result may turn on factors (discussed further below) such as whether the arbitrator is a civil-law lawyer or a common-law lawyer, an academic or a practitioner, a strict contract …
*Editor-in-Chief of The Review; Partner, Simpson, Thacher & Bartlett LLP.