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 completely convinced that their submission is “the best brief possible under the given circumstances” if not “the best brief ever”, it will ultimately be filed. But will the submission truly 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 it is truly understood and appreciated by the decision-maker, i.e. by the arbitral tribunal. It can therefore make sense to engage a so-called “shadow arbitrator”. Such person is an experienced arbitrator whose role in the arbitration team is rather restricted: He or she is not involved in writing the submissions nor does he receive any background information. Instead, the shadow arbitrator simply reads the file and the draft submissions in order to provide feedback from an arbitrator’s perspective: Is a certain argument in the drafted submission really understandable? Is the argument presented in a convincing manner? Which part of the submission is rather confusing or – worse – so boring that it will be skipped by the reader? Upon deliberation of the award, what will be the crucial issues for the arbitral tribunal? It stands to reason that the answers to those questions are of utmost importance for devising a successful strategy in an arbitral proceeding.
To this end, involving a shadow arbitrator has the following advantages:
First, it is a well-known phenomenon that counsels tend to overestimate the clarity and the persuasiveness of their own submissions. They have written the submission so it does not wonder that counsels finds their work-products fully understandable and convincing. However, the arbitrator’s perspective can be very different- and only the arbitrator counts. Hence, to correct a possible misperception, a shadow arbitrator can work wonders.
Second, sometimes the client needs to be educated and that is hard to be achieved by counsel. To name just one example: Clients usually have a tendency to leave no stone unturned and raise each and every conceivable argument, “just in case” – however farfetched such argument might be. Counsels are often inclined to give in to the aforementioned “just in case” reasoning; they wish to avoid a scenario in which, after a lost arbitration, the client complains: “If we had raised this additional argument, the outcome might have been better!” On first sight, the risk-free approach is to present every perceivable argument. Such “strategy” frequently results in an overly long submission in which the few good and convincing arguments lie buried under long-winded explanations of arguments which hardly pass the “read ear”-test. In sum, the apparent risk-free approach turns out to be a high-risk approach since bad advocacy outweighs the questionable value of a plethora of arguments. How can a shadow arbitrator help? He has, in his “almost neutral” position and judging from the adopted arbitrator’s position, a far better chance to convince the client to omit some of the arguments in order to make the submission concise, understandable and ultimately convincing.
Finally, a shadow arbitrator can contribute to a sound risk assessment. Counsels and clients alike have a tendency to underestimate the risks of an arbitration, and this tendency typically increases with each submission filed. The longer one studies the arguments found the more convincing they become. In addition, the client’s management might have postulated: “This arbitration must not be lost!”, and this request is then followed by the persons in charge of the arbitration. However, a proper risk assessment is of utmost importance for devising a sound strategy to achieve the best possible outcome. If the chances to succeed in arbitration are low, the client might be better advised to seek a settlement or to invest more in the arbitration, e.g. by looking for additional evidence. A shadow arbitrator can convey a bad news better than the in-house counsel or even than the counsel engaged for handling the arbitration proceedings.
What is the ideal profile of a shadow arbitrator? He or she must have significant experience as an arbitrator in order to understand how an arbitrator reads submissions and listens to a hearing and how an arbitral tribunal finally deliberates. It makes sense that the shadow arbitrator mirrors at least one, or preferably all, of the actual members of the arbitral tribunal in terms of cultural background, age and areas of legal expertise. Finally, neither the shadow arbitrator (nor his law firm) should be in a constant business relationship with the client since this would only lead to misguided consideration whereas candid advice might be of the essence.
The proposal to involve a shadow arbitrator as an additional member of the arbitration team will almost certainly be criticized as being overly costly. In times of growing criticism of high arbitration costs, increasing the expenses further by innovative ideas such as the involvement of a shadow arbitrator definitely is courageous. However, the focus on “cost avoidance” is short-sighted because expenses for an arbitration are nothing more than an investment, the final award being the “return on investment”. In any larger arbitration, such expected return on investment is the multiple of the investment = the expenses made. If this is understood, the investment in a shadow arbitrator might be one of the wisest.
