On 20 November 2018, about 50 participants attended Quadrant Chambers’ biannual international arbitration seminar. The topic for discussion and debate was “Feeding back to arbitrators”. The panel event was chaired by Simon Rainey QC of Quadrant Chambers and the speakers were Paula Hodges QC, head of global arbitration at Herbert Smith Freehills and future LCIA President, Damian Honey, Head of International Arbitration and Disputes at Holman Fenwick Willan, and Ruth Hosking of Quadrant Chambers.
The background
Simon Rainey QC gave some background to the debate. The 2018 International Arbitration Survey (often referred to as the White &Case/Queen Mary survey) asked respondents whether they would like to be given the option of evaluating arbitrators at the end of proceedings. 80% of (the 922) respondents said that they would, though sub-group results differed: 65% of full-time arbitrators expressed their preference for providing an assessment of their peers, whereas 90% of in-house counsel said that they would like to provide an evaluation of arbitrators. The survey noted that this was up from 75% in the 2010 survey, which had looked at the question of feeding back to arbitrators from a corporate view, stating:
“The 2010 survey, which measured corporate views… Almost a decade later, the current results show that corporations (through their in-house counsel) have an even stronger wish to become involved in this process”.
The respondents who answered “yes” to providing feedback were asked a follow-up question as to how they would like to provide such an assessment. They were given a choice of three options, plus a blank space for new suggestions. The overall results showed that reporting to an arbitral institution (provided the arbitration was on an institution’s rules) would be by far the preferred method of providing assessment of arbitrators (at 88%). All sub-groups were in favour of reporting to arbitral institutions. There was a difference in sub-groups as to whether feedback should then be subject to public review or simply feedback to the arbitrator in question.
The debate
It was against the results of the White & Case/Queen Mary Survey that the panel looked at the issue of feeding back to arbitrators and posed the questions: Why? When? How? Whose feedback?
First, Paula Hodges QC addressed the question of why providing feedback on arbitrators would be a good idea. She began by commenting on the proliferation of feedback in modern life and then addressed arbitral feedback from the perspectives of the parties, counsel, the institutions and the arbitrator(s).
The general theme underlying all perspectives was that feedback enabled arbitrators to improve and develop their skills. That in turn promoted confidence in the arbitral system, which is beneficial given the proliferation of arbitral institutions. It also assisted in promoting party autonomy and would help institutions with their future arbitral appointments. It might also assist parties with decisions on party appointments, either through information from the institutions or from publicly available information about arbitrators (if feedback was given on a public platform). Publicly available feedback might also help address the current problems with diversity in arbitrator appointments.
Paula also addressed the potential drawbacks of feeding back to arbitrators. In particular, she considered that context was key and that any form of publicly available feedback (which was available for future disputes) may not give an accurate or complete picture because, for example, the parties will not be able to see whether delay is caused by all three arbitrators or only one.
The other concern Paula identified was that if arbitrators were conscious of their performance being publicly judged, they may shy away from making hard (or robust) decisions for fear of getting a bad write-up. She concluded by quoting Alan Bennett in Writing Home, where he said: “When people are on their best behaviour they aren’t always at their best.”
Damian Honey then looked at when to feedback to arbitrators was appropriate:
- At the end of proceedings but before the award.
- Continually throughout the arbitration.
- After the award.
His preference was before the award, because a party’s views post award were coloured by the outcome. Pre-award, their evaluation was neutral. This left the difficulty that there would then be no feedback on the quality of decision-making. He had concerns about giving continual feedback throughout the proceedings because it might (on a practical level) become unmanageable, increase cost and delay resolutions. There were also concerns about whether providing feedback would, or would be seen to, influence decisions made by the tribunal as it went along. He looked at what other jurisdictions do, with a particular focus on Hong Kong and Finland.
Paula Hodges QC then considered how feedback should be given. The Arbitrator Intelligence Questionnaire was discussed. She highlighted the inherent difficulties of access to data without the surrounding context of the particular dispute. For example, heavy disclosure previously ordered in a complex fraud case might not be a real guide to an arbitrator’s usual practice. She also discussed the divergence in the approaches of the major arbitral institutions with regards to seeking feedback. She opined that the arbitral institutions had a role to play in receiving feedback which would assist them, both in relation to institutional appointments in the future but also party appointments where parties asked the institutions for a steer on who to appoint. It is important to give contextual feedback whilst preserving the confidentiality of an arbitration’s proceedings. There was general consensus in the audience that it should be through the arbitral institution (if the arbitration was being conducted on institutional rules). Word of mouth was also important, so where parties were looking for recommendations of arbitrators to appoint they sought feedback from colleagues. Indeed, that fed into responses to one of the other questions on the White & Case/Queen Mary survey, which found that the majority of respondents identified “word of mouth” followed by “from internal colleagues” as the main sources of information about arbitrators.
In this context, the panel discussed their concerns about putting up in-depth profiles on websites which set out, for example their approach to case management in arbitrations. This was because each case was different and, in accordance with section 33 of the English Arbitration Act 1996, a tribunal had a duty to adopt procedures suitable to the circumstances of a particular case so a one-size-fits-all approach to case management, for example was inappropriate.
Ruth Hosking then looked at the question of whose feedback we should be interested in. She noted that the respondents to the White & Case/Queen Mary survey were mainly lawyers, with only about 10% of the phase one participants being in-house counsel. She noted that whilst feedback from legal users of the system and arbitrators themselves was important and valuable (and not to be underestimated), feedback from the ultimate users (and funders) of the system was also valuable, and important and there was potential for their voices to get lost in discussions about feeding back. If feedback was to be given by the underlying parties (rather than their lawyers) and their funders (if any), there was a case for feedback to be given during the arbitral reference; otherwise, feedback did not help the current client in the current dispute.
The discussion was then opened to the floor. The debate was lively and participants gave a range of views as to when and how feedback should be given. For example, some argued that if arbitrators start to make decisions in order to receive good feedback, they may become reluctant to make difficult decisions during the arbitration. However, the general consensus was that feeding back to arbitrators was a good idea.
