Arbitrators of the World, Declutter!
Do you ever wonder how to write like the world’s best judges or arbitrators? Ross Guberman gives you clues in his book “Point Taken”. He analyses opinions of a number of renowned American and English judges, including Richard Posner, Frank Easterbrook, Alex Kozinski, Jed Rakoff, Antonin Scalia, Lord Sumption, Lord Denning and others. Unlike the best judges in most civil law jurisdiction whose way of judicial writings is rarely discussed, the best common law judges are revered for their style. They make an effort to write in way that is succinct, original and often funny. They employ various rhetorical techniques aimed not only at persuading the parties but also at other courts which might treat their decisions as precedents and at public at large.
A common thread throughout the book is the judges’ effort to write to the point and avoid unnecessary information. A summary of tips on fact section reads as follows: (1) cut clutter, (2) add background, (3) emphasize key points (4) adopt narrative voice, and (5) enhance visual appeal. Decluttering, the first of these points, is summed up like this: if your legal analysis does not turn on one of these details, consider pruning them from your fact or background statement:
- Dates and times
- Street addresses
- Dollar amounts and other currencies
- Weights, quantities, and other measure
- Quotations from the record
- Proper names (of people, places, entities and pleadings)
- Record cites (unless making appealable findings of fact).
Given the influence of common law standards in international arbitration, it strikes me how little arbitral tribunals heed the advice distilled from some of the best judicial opinions. If anything, I see a trend towards bureaucratization of arbitral decisions. Instead of decluttering, cluttering is all the rage. Most arbitrators feel compelled to write a detailed procedural history, even if has no bearing on the outcome and no due process issues were raised. Facts sections are rarely limited to the facts on which the case will turn. Also, parties’ positions are often described way beyond what is necessary to explain the tribunal’s reasoning. Often, a major part of an award does not serve any discernable purpose – other than giving a patina of professionalism and arbitration experience - and readers skip to the part where there is a genuine analysis.
I can only speculate why it is so. I think that the main reason is mimesis: everyone does it, so will I. Behind it is the assumption that the more detailed the award is, the more professional it looks. Also, some arbitral institution encourage a very detailed way of writing awards, probably in hope that it is safer to have too much than too little content in the award. This is not unreasonable. It is impossible to have cases decided by arbitrators who are consistently as good writers as Jan Paulsson or John Roberts. One may argue that a more detailed award by lesser lawyers is more likely to cover all relevant facts and important arguments than a trimmed award intended to be focused on the essentials. Verbosity may seem a good price to pay for the “safety” of the award. Finally, the intended audience of commercial arbitration awards is very limited compared to the audience of decisions made by higher national courts. Some may think that there is little point is showing the mastery of style when the audience consists merely of parties, including their counsel, and possibly national courts that may review the award.
While I agree that enforceability of the award is more important than its style, I think that parties would benefit if arbitrators took cues from the best common law judges. The “arbitration safetyism” described above comes with a price. Long awards take long time to write and cost more. If arbitrators bill by the hour, this is obvious. If their fees depend on the value of the case, I suppose that these costs are already priced in the fees schedules of the institutions. While it is not the most important sources of inefficiencies in arbitrations, it is not negligible. To parties skimming the fluff parts of the long awaited awards it may be even more apparent reason for high costs and long wait than their own behavior during arbitration proceedings. Arbitrators would also benefit. Brevity is the soul of wit, wrote Shakespeare. Writing succinctly forces writers to think harder about their subject. There is no reason why a focused award would not cover all relevant facts or would miss any important argument. Parties will rarely complain if the fat is trimmed from the writing. For arbitrators it seems like a good way to stand out from the crowd and be recognized as good writers and competent lawyers.
Michał Kocur