The Arbitrators' Initiative: When, Why and How Should It Be Used? - ASA Special Series No. 45

The “proactive” arbitrator is usually depicted as the “dream arbitrator” at conferences and in publications. In practice, however, the “dream arbitrator” is sometimes met with a degree of scepticism or surprise, at least in some jurisdictions, when she or he seeks to become involved early in the proceedings, to shape the proceedings, point to the factual or legal issues that require more attention, or even suggest ways that the dispute could be settled amicably. Indeed, another fairly common criticism is that of the “dictatorial” or “over-interventionist” arbitrator. So, where do we or should we draw the line? When, why and how should the arbitrators’ initiative be used? This was the topic of the ASA Annual Conference held in Geneva in February 2015 to which a number of leading arbitration practitioners from Switzerland and abroad participated. Their written contributions are contained in this volume of the ASA Special Series.

Domitille Baizeau is a Partner in the international arbitration group of LALIVE, based in Geneva. She has been practicing dispute resolution for 20 years, exclusively in international arbitration, commercial and investment, since 2001. She has been involved in over sixty international disputes as counsel or arbitrator, in administered and ad hoc arbitration proceedings, governed by various procedural and substantive laws, both common law and civil law. She focuses on joint venture, share purchase, M&A, sales, privatisation and investment disputes in the energy (oil & gas, solar, mining), telecommunications, construction and commodity trading sectors.  Ms Baizeau has been a member of the Arbitration Court of the Swiss Chambers’ Arbitration Institution since 2010. She is also a member of the Board and the Executive Committee of ASA and an officer of the European Users’ Council of the LCIA. She regularly speaks at conferences and publishes in the field of international arbitration; she was for several years a member of the Editorial Board of the ASA Bulletin. Ms Baizeau initially trained in New Zealand and also holds a French law diploma. She is admitted to practice in both England and in Geneva, Switzerland. Before joining LALIVE in 2004 (becoming Partner of the firm in 2008), she practiced litigation and arbitration in New Zealand and France. Ms Baizeau is a dual New Zealand and French national.

Frank Spoorenberg is a Partner with Tavernier Tschanz in Geneva, where he is the Co-head of the arbitration and commercial litigation group.  He acts as counsel before arbitral tribunals and as co-arbitrator, sole arbitrator and chairman.  His cases are related among others to M&A, joint ventures, distribution, agency, service agreements and to international sales.  His industry experience includes telecom-munications, trading, machine industry, construction, oil and gas, pharma, sport industry and real estate.  He has published in the area of contract and arbitration law.  Before focusing on international arbitration and commercial litigation, Mr Spoorenberg developed strong expertise in M&A, financing, general corporate and commercial contracts.  In 1993, he received an LLM Degree from the College of Europe in Bruges (Belgium). He graduated from the University of Fribourg (Switzerland) in 1991.  He is a member of the Board of the Swiss Arbitration Association and Vice-chairperson of the Arbitration Court of the Swiss Chambers’ Arbitration Institution.

CONTRIBUTORS Harold Frey is a Partner at Lenz & Staehelin, Zurich, where he leads the litigation and arbitration practice. He has represented clients in numerous ad-hoc arbitrations and before the major arbitral institutions, at multiple seats and governed by a variety of substantive laws. Matters included a wide range of legal issues (such as joint venture, M&A, licensing and general contract law disputes) and industries (such as telecom, pharmaceutical and construction). Mr Frey sits as arbitrator (presiding arbitrator, sole arbitrator and co-arbitrator) and acts as counsel in large and complex litigation proceedings before Swiss courts. He is a lecturer on arbitration at the University of Zurich and author of various publications in the arbitration field. Mr Frey studied law at the University of Zurich (lic. iur.) and New York University School of Law (LL.M.). Paul Friedland is global Head of White & Case’s International Arbitration practice group. He has served as counsel or arbitrator in numerous international arbitrations, both commercial and investor state. Mr Friedland’s leadership positions include: American Arbitration Association (Executive Committee, 2011-14; Chair of Law Committee, 2008-14; Chair of Subcommittee on ICDR Rules revision, 2013-14), International Bar Association (Arbitration Committee Co-chair, 2014-15), Singapore International Arbitration Centre (Court member, since 2013), and LCIA (Court member, 2006-10). Hamid G. Gharavi is co-founding Partner of the Paris-based arbitration firm Derains & Gharavi. A member of the Paris and New York bars, he has acted as counsel and arbitrator in over 150 ad hoc and institutional commercial arbitrations, including over 20 under bilateral and multilateral investment treaties.  He is a former Court Member of the LCIA and an appointee of the Kingdom of Cambodia to the ICSID Panel of Arbitrators. Dr Gharavi is the author of a number of publications on arbitration and of the book “The International Effectiveness of the Annulment of an Award.” Christopher Harris is an experienced advocate specialising in complex commercial disputes across a range of industry sectors and appearing before courts and tribunals in England and internationally.  Mr Harris’ specialist areas include banking & finance, commercial litigation, energy and natural resources, international arbitration and public international law. He is particularly known for his expertise in international arbitration.  Mr Harris has been counsel in eleven investment arbitrations, and over 40 commercial arbitrations. He has substantial advocacy experience before the High Court and Court of Appeal in England and arbitral tribunals in several jurisdictions. Mr Harris also regularly sits as arbitrator, with appointments in several ad hoc, LCIA, ICC and SCC arbitrations over the past six years.   Paula Hodges heads Herbert Smith Freehills’ Global Arbitration Practice and has over 25 years’ experience of advising on international disputes, particularly in the energy, telecommunications and technology sectors.  She specialises in international arbitration and has represented clients in many jurisdictions (including London, Paris, Geneva, Zurich, Stockholm, the US, Canada, Dubai, Africa, Asia, Russia and the CIS) in ad hoc arbitration and proceedings under the auspices of the major arbitral institutions.  She also sits as an arbitrator. Ms Hodges has been closely involved in several high profile cases before the High Court in London, and has appeared before the Court of Appeal and House of Lords (now the Supreme Court). She studied law at the University of Cambridge (M.A. in Law). Ms Hodges is a member of the LCIA Board and Vice President of the LCIA Court.  She became a QC in 2014. Paolo Marzolini is a founding Partner of Patocchi & Marzolini in Geneva.  He acts as counsel representing clients and sits as an arbitrator in Switzerland and a number of European jurisdictions under various sets of arbitration rules (including ICC Rules, Swiss Rules, UNCITRAL Rules and WIPO Rules).  Mr Marzolini has worked in the international dispute resolution departments of major law firms in Geneva and London and has been involved in several major international arbitrations. His fields of expertise include construction (including project finance), IP, consultancy agreements, joint ventures, agency, licensing agreements in the pharmaceutical industry, State contracts, M&A, gas price review disputes, banking and finance, sport and sponsoring, and commodities trade. Mr Marzolini has served as Case Manager at the Chamber of Arbitration of Milan in the period 2003-2007 and, in that capacity, he has acted as Administrative Secretary of Arbitral Tribunals in more than 150 arbitrations.  He has published extensively on international arbitration and frequently lectures on arbitration-related matters. Mr Marzolini is a Co-chair and member of the advisory board of ArbIt – Italian Forum for Arbitration and ADR as well as a member of the International Bar Association (IBA), the Chartered Institute of Arbitrators (MCIArb), the Swiss Arbitration Association (ASA), the Italian Arbitration Association (AIA), the Geneva Bar Association and the Pavia Bar Association. Pierre Mayer is a specialist in international arbitration law and private international law, two subjects which he has taught for decades at the University of Paris I (Panthéon-Sorbonne) where he was Professor from 1984 to 2012 and is Emeritus Professor since 2012. Professor Mayer has practised with Coudert Brothers, Clifford Chance and, lastly, Dechert, where he was a Partner for the past ten years. He now has his own practice and acts mainly as an arbitrator, in both commercial and investment arbitration procedures. A French qualified avocat, Professor Mayer has acted as counsel or arbitrator in hundreds of proceedings under a variety of ad hoc or institutional arbitration rules, in commercial and investment matters. His experience spans a variety of sectors (including energy, telecommunications, distribution, construction and commodities tradings) and all forms of contracts (including joint ventures, share purchase, franchise, and sales). Professor Mayer regularly speaks at arbitration conferences. He is the author of the reference textbook on French international private law (Droit international privé, Paris, Montchrestien, 1st edition 1977; 11th edition 2013, with the collaboration of Mr Vincent Heuzé) and of a general course at the Hague Academy of International Law (Le phénomène de la coordination des ordres juridiques étatiques en droit privé, 2007). He has published dozens of articles on subjects of arbitration law and practice, and on private international law. He is the President of the International Academy for Arbitration Law, a former President (now member) of the Comité français de droit international privé, a member of the Council of the ICC Institute of World Business Law, a member of the Board of the Comité français de l’arbitrage, a member of the Institut de droit international, and a former President of the Committee on International Commercial Arbitration of the International Law Association. Gabrielle Nater-Bass is a Partner at Homburger in Zurich. Her practice focuses on domestic and international arbitration and litigation. She is an experienced party counsel and arbitrator in international commercial arbitration, ad hoc and institutional (ICC, LCIA, Swiss Rules and others), with in-depth experience in matters relating to joint ventures, shareholder agreements, M&A disputes, construction, energy (oil, gas, electricity), sales contracts, long-term supply contracts, agency and distribution contracts, telecommunications and pharmaceuticals. Ms Nater-Bass is listed on the panel of arbitrators of the ICC National Committee (Switzerland) and is a board member of the Swiss Arbitration Association (ASA), a member of the Arbitration Court of the Swiss Chambers’ Arbitration Institution, the International Bar Association, the London Court of International Arbitration (LCIA), and the German-American Lawyers’ Association. She also serves as a member of the International Board of the Arbitration Institute of the Finland Chamber of Commerce and is Vice President of ArbitralWomen. Ms Nater-Bass was recently invited to join the SIAC Users Council and the ICDR International Advisory Committee. She is a frequent speaker at international arbitration conferences and publishes regularly in the field. Wolfgang Peter is a founding Partner of Peter & Partners International SA, specializing in international commercial and investment arbitration. Dr Peter represents major companies from Europe and overseas as counsel in large and complex international arbitrations. He also regularly serves as an arbitrator in high-stake arbitrations under the auspices of various institutions throughout the world. He has acted in over 240 international arbitrations involving M&A, finance and banking, international trade, joint ventures and industrial cooperation, agency and distribution, licensing transfer of technology and natural resources (in particular gas-price adjustment disputes). Further to his arbitration practice, Dr Peter has been retained as counsel in numerous Swiss and cross-border mergers and acquisitions as well as corporate finance and IPO transactions. He was a member of the board of several companies in the field of finance and industry. Prior to founding Peter & Partners, Dr Peter led for three decades the arbitration and corporate groups of Python & Peter. He also held top management executive positions, as CEO of the Breguet Watch Group from 1987 to 1995 and Managing Director of Montres Jaquet-Droz SA from 1995 to 2000. He studied business administration, political science and law at the universities of Lausanne, Geneva, Harvard and Frankfurt and holds doctorate degrees in business administration (Lausanne) and in law (Frankfurt). He has written various articles on business law and international commercial arbitration, as well as his study Arbitration and Renegotiation of International Investment Agreements. Dr Peter is a member of various arbitration related organisations: the Geneva and Swiss bar associations, the LCIA (member of the board), the Geneva Association of Business Law, ASA (member of the executive board), and IBA. Pierre-Yves Tschanz is a Partner at Tavernier Tschanz in Geneva, Switzerland. He has been practicing international arbitration since 1977, as counsel and as arbitrator in over 150 cases under most major arbitration rules and laws. He authored publications on international arbitration in Switzerland, France and the United States. Mr Tschanz is based in Geneva, Switzerland, but practiced for several years in New York and in Paris. He is a member of the Geneva (Switzerland) Bar and of the New York Bar, and a former conseil juridique in Paris.