Outrunning the Shadows: The Arbitrator Shadowing Protocol Proposal

PREVIEW

Leonard Lauder once said, “When you live in the shadow of a big tree, you have to run twice as fast to get into the sunlight.” Similarly, ‘next generation’ arbitrators, overshadowed by more established peers, face an uphill struggle to reach the ‘sunlight’ of appointment and recognition. Obtaining an appointment is typically contingent on having real-life experience as an arbitrator—a ‘chicken and egg’ dilemma for aspiring arbitrators who may struggle, for various reasons, to obtain sufficient party or institutional confidence to secure their elusive first appointments. After all, a surgeon would not be permitted to operate without obtaining the relevant experience through education, observation, and practical experience: there is no substitute for experience.

An innovative solution is therefore required: the development of an Arbitrator Shadowing Protocol (“ASP”), by which stakeholders in the arbitral process, and in particular arbitral institutions as key appointing bodies, can commit to appointing diverse aspiring arbitrators as shadow or observer arbitrators in proceedings. This would provide aspiring arbitrators with the practical insights required to bridge the experience gap and would enable parties to nominate, and institutions to appoint, such candidates with greater confidence. This article examines several practical issues raised by the proposed ASP, the potential benefits of such innovation for the arbitral process as a whole and the business case for tribunal observation.

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This article proposes the development of one such measure, an Arbitrator Shadowing Protocol (“ASP”), whereby aspiring arbitrators would be nominated by institutions, or chosen by arbitrators sitting in ad hoc proceedings, to observe or ‘shadow’ arbitral proceedings. This would afford such aspiring arbitrators an opportunity to observe and thereby gain practical experience of the inner workings of a tribunal.

Part II explores the potential benefits of providing shadowing opportunities for aspiring and less-experienced arbitrators and considers the value of similar schemes for firms and other types of independent neutral.

Part III considers the potential features of the proposed ASP and addresses appropriate safeguards, from the perspective of an arbitral institution that may wish to consider adopting an observation program.

Part IV discusses the advantages of and business case for the provision of arbitrator observation opportunities.

Part V explores the extent to which observational opportunities may be provided in the context of ad hoc arbitration proceedings, and the steps to be taken by arbitrators wishing to move beyond providing opportunities for informal observation to a more formal and structured solution.