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The Shadow Arbitrator: Mere Luxury or Real Need?

The Shadow Arbitrator: Mere Luxury or Real Need? JÖRG RISSE Shadow arbitrator – Change of perspective – Sender/receiver problem – Arbitrator’s attention span – Language problem – Psychological enhancement of submissions and pleadings – Risk assessment – Ethical considerations – Reimbursability of costs – Investment in arbitration I. The Problem and its Possible Solution In large arbitration cases, skilled counsels fill hundreds of pages with factual and legal arguments in order to persuade the arbitral tribunal. Only if counsel and client are convinced that their submission is “the best possible brief under the given circumstances” – if not “the best brief ever” –, it is ultimately submitted. But will this submission convince the arbitral tribunal? A German proverb says: “The bait is for the fish to like, not for the fisherman”, translated into an arbitration context: It is immaterial whether counsel and client are fond of their submission; the only thing that matters is whether the submission is understood and appreciated by the decision-maker, i.e. the arbitral tribunal. It can therefore make sense to engage a so-called “shadow arbitrator”. A shadow arbitrator is an experienced arbitrator whose role in the arbitration team is rather restricted: He is neither involved in the drafting of the submissions nor does http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png ASA Bulletin Kluwer Law International

The Shadow Arbitrator: Mere Luxury or Real Need?

ASA Bulletin , Volume 38 (2): 12 – Jun 1, 2020

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Publisher
Kluwer Law International
Copyright
Copyright © 2020 Kluwer Law International BV, The Netherlands
ISSN
1010-9153
Publisher site
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Abstract

JÖRG RISSE Shadow arbitrator – Change of perspective – Sender/receiver problem – Arbitrator’s attention span – Language problem – Psychological enhancement of submissions and pleadings – Risk assessment – Ethical considerations – Reimbursability of costs – Investment in arbitration I. The Problem and its Possible Solution In large arbitration cases, skilled counsels fill hundreds of pages with factual and legal arguments in order to persuade the arbitral tribunal. Only if counsel and client are convinced that their submission is “the best possible brief under the given circumstances” – if not “the best brief ever” –, it is ultimately submitted. But will this submission convince the arbitral tribunal? A German proverb says: “The bait is for the fish to like, not for the fisherman”, translated into an arbitration context: It is immaterial whether counsel and client are fond of their submission; the only thing that matters is whether the submission is understood and appreciated by the decision-maker, i.e. the arbitral tribunal. It can therefore make sense to engage a so-called “shadow arbitrator”. A shadow arbitrator is an experienced arbitrator whose role in the arbitration team is rather restricted: He is neither involved in the drafting of the submissions nor does

Journal

ASA BulletinKluwer Law International

Published: Jun 1, 2020

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