Transparency in International Arbitration

Contemporary Issues in
International Arbitration and Mediation
The Fordham Papers 2010

333
Transparency in International Arbitration:
What Are Arbitrators and Institutions Afraid Of?
Michael McIlwrath and Roland Schroeder1
What gets measured, gets done. What gets rewarded,
gets repeated.—Peter Drucker
This is a fundamental axiom of modern business, and yet one which has
yet to find its place in the world of international arbitration. Reducing the
time and cost of arbitration has been a central focus of users for years, and
yet surprisingly few steps have been taken to measure the performance of
arbitration institutions and arbitrators and to make the information avail-
able to those who seek their services. Institutions have made commendable
efforts to respond to user concerns with initiatives and protocols designed
to reduce the time and cost of arbitration, but for these initiatives to realize
their full potential, another need must first be addressed: users and practitio-
ners require reliable information about whether they are being implemented
in actual practice, as well as other, standardized information about perfor-
mance that would allow them to choose, and reward, those institutions and
arbitrators whose actual conduct of proceedings most closely matches their
expectations.2
1
Michael McIlwrath is senior litigation counsel for GE Oil & Gas, a global
division of the General Electric Company headquartered in Florence, Italy. Roland
Schroeder is senior litigation counsel at the corporate headquarters of the General
Electric Company in Connecticut, United States. Their responsibilities include inter-
national litigation and arbitration. The views expressed in this note are the views of
the authors and are not presented as those of General Electric.
2
See, e.g., G. Born, International Commercial Arbitration, at 1674 (Kluwer Law
International 2009) (summarizing various initiatives regarding arbitrator qualifications
and performance, and noting that “proposals to increase the amount and accessibility
of information concerning international arbitrators offer constructive possibilities...
This would not constrain the parties’ choice of arbitrators, or offer a means of advanc-
ing parochial or entrenched interests, but would instead assist parties in identifying the
most qualified, competent arbitrators for their disputes”); M. Mcilwrath, “Grading the
Arbitrator,” 73 Arbitration 224, at s227 (2007) (lamenting the quality of information

334 Contemporary Issues in International Arbitration and Mediation
INTRODUCTION
The growing concern of corporate users over the excessive length and cost
of international arbitration is well documented. In recent years, these con-
cerns have prompted many of the world’s premier arbitration providers to
introduce a number of procedural innovations—mainly institutional proto-
cols, guidelines and rule changes—all designed to foster greater efficiency in
the arbitration process. These innovations have been welcome news to the
corporate community.
But as institutions continue to improve their rules and protocols, ques-
tions naturally arise as to what is working and what is not, and what may
be working better in one area versus another. Commercial parties routinely
make considered decisions of which rules and institutions are better suited
to resolving their disputes, in the belief that their choice will lead to a more
effective process that best meets their needs. Yet when negotiating and draft-
ing a dispute resolution clause, it is reasonable for parties to ask: what is
the difference, if any, between Institution A and Institution B in terms of
time, cost and quality? Is one better suited to the nature of the disputes that
might be expected? While anecdotal evidence abounds, there is little in the
way of standardized, objective data regarding time and cost by which par-
ties can effectively assess the performance of an institution, or compare the
performance of different institutions, in order to make useful and practical
decisions. This increases the likelihood of a mismatch between a user’s expec-
tations/needs and an institution’s performance, creating a greater potential
for dissatisfaction, and it also makes it far more difficult for users to sys-
tematically select those institutions (and their arbitrators) who have taken
concrete steps to better meet party expectations.
Even more needed, and more wanting, is the availability and distribu-
tion of accurate information about arbitrators, who remain a predominant
factor in the speed and efficiency of the arbitral process even with the many
innovative initiatives of institutions. Indeed, while these institutional initia-
tives properly seek to encourage more efficient behavior by all participants,
most of these initiatives emphasize the authority and responsibility of the
tribunal to impose greater control over the process—which, therefore, begs
the question, are they doing so? Seasoned users and practitioners have all
experienced arbitrators (and institutional case managers) at different ends of
available to parties about arbitrator performance today as equivalent to “what could
charitably be called hearsay”, and calling for a more systemic approach to assessing
arbitrator performance).

Transparency in International Arbitration 335
the spectrum, from those willing to take a firm hand in the management of
the proceeding, to others who are reluctant or even unwilling to act expedi-
tiously where one of the parties seeks to delay the process. Innovative initia-
tives will only make a difference in the hands of those willing to embrace
them. Yet, useful information on arbitrator performance remains an imper-
fect, anecdotal, word-of-mouth experience, and varies widely among users
and practitioners.3
The availability of standardized data must therefore accompany these
other initiatives if we are to experience dramatic improvement in the time
and cost of arbitration. Parties with access to meaningful data will not only
make more informed choices, they will also have greater confidence in the
overall process and in its predictability. This may be especially true of parties
with little previous experience with international arbitration—for example
those in developing nations—who are likely to feel less suspicious about
the process or concerned that they are at an information disadvantage. An
equally important benefit of transparency is the impact it would have on the
ability of arbitrators and institutions to align themselves with party expecta-
tions of how proceedings should be conducted.4
Arbitrators and providers
who deliver quality awards in a timely and efficient manner should be rec-
ognized as such and will undoubtedly be rewarded with more business, and
those who do not will undoubtedly work much harder to do so.
3
As the highly regarded Professor Catherine Rogers has commented: “[T]ypi-
cally information about an arbitrator’s conduct and decisional track record (as well
as anecdotal information that might be useful in the selection process) is available to
a relatively closed circle of arbitration insiders who treat such information as propri-
etary,” which adds to “significant information asymmetries that impair parties’ ability
to make fully informed decisions in selecting arbitrators.” “Emerging Dilemmas in
International Economic Arbitration: The Vocation of the International Arbitrator,”
20 Am. U. Int’l L. Rev. 957, at 969 (2005).
4
As a matter of standard practice, the authors routinely ask arbitral tribu-
nals at the outset of proceedings if they would be interested in hearing both sides’
expectations of how long the entire arbitration should last. While some chairs have
been receptive (with interesting results), others have been reluctant to allow par-
ties’ expectations of an “ideal length of the proceeding,” for example, even if non-
binding, to be introduced into the proceedings, perhaps knowing even early on that
they are bound to disappoint such expectations. The willingness or reluctance to face
this question, however, already speaks volumes about the divergent levels of interest
and concern over time that may exist among arbitrators.

CURRENT EFFORTS TO ADDRESS THE TIME AND COST
CONCERNS OF THE USER COMMUNITY
Two years ago, the General Counsel of General Electric declared at an annual
meeting of the International Institute for Conflict Prevention and Resolution
(CPR) that “arbitration is no longer fulfilling the basic needs of business cus-
tomers for early and efficient resolution of disputes.” He went on to explain
that corporations and business people live in an age where events move at
lightning speed, where the world changes and evolves literally on a daily
basis, and where markets have a laser-like focus on short-term results, and
that in this environment businesses need to be able to resolve their disputes
quickly and efficiently—but that international arbitration has increasingly
failed to meet this fundamental need causing many companies to look else-
where for solutions.
GE’s General Counsel is far from alone in this view. The last few years
have seen an increasingly vocal corporate community, willing to express its
dissatisfaction with the status quo in articles, speeches, conference presenta-
tions and communications,5
as well as similar expressions by practitioners
reflecting the views and experiences of their clients.6
This volume of the
5
See, e.g., A. Clarke, “Presentation to the ICC Commission on Arbitration,
International Arbitration: Current Corporate Concerns” (April 2009) (discussing
concerns of the business community regarding the delay and expense increasingly
associated with international arbitration and potential solutions); “Report of Round
Table Discussion in Paris,” Global Arbitration Review, vol. 4, no. 2 (Jan. 2009) (active
discussion of corporate counsel concerns regarding time and cost in international
arbitration); Jean-Claude Najar, “Inside Out: A User’s Perspective on Challenges in
International Arbitration,” 25(4) Arbitration International 515 (2009) (same); 11(2)
P. Hoebek, V. Mahnken and M. Koepke, “Time for Woolf Reforms in International
Construction Arbitration,” International Arbitration Law Review (2008) (outlining
user concerns and advocating various steps to streamline and shorten arbitration
proceedings); M. McIlwrath and R. Schroeder, “The View from an International
Arbitration Customer: In Dire Need of Early Resolution,” 74 Arbitration 1 (2008)
(advocating an increased focus on resolving key issues earlier in the arbitration pro-
ceeding to address the business community’s need for more expeditious decisions);
C. Drahozal, “Disenchanted? Business Satisfaction with International Arbitration,”
5(2) World Arbitration and Mediation Review, 1 (2008) (examining business disen-
chantment with the length and cost of international arbitration).
6
See L. Reed, “More on Corporate Criticism of International Arbitration,”
Kluwer Arbitration Blog (July 16, 2010) (discussing the “growing discontent of
corporate users” with the cost and efficiency international arbitration”; D. Rivkin,
“Towards a New Paradigm in International Arbitration: The Town Elder Model
Revisited,” Arbitration International, vol. 24, no. 3, at 375 (2008) (proposing that
arbitrators return to the more flexible and assertive “town elder” model in response

Fordham Papers contains a number of good articles mirroring this funda-
mental dissatisfaction with the time and cost of international arbitration.7
There may be those who continue to doubt the breadth or conviction of these
concerns, but such individuals increasingly are in the minority, out of touch
with the perceptions of their clients.8
A common theme expressed in these articles and presentations is a
desire for institutions and arbitrators to place greater emphasis on speed
and efficiency, and for arbitrators to take a more proactive role in shaping
the proceedings and to apply a much firmer hand in their case manage-
ment responsibilities.9
In an informal survey conducted by the CCIAG of
to user concerns regarding the expense and length of time to resolve disputes);
23(6) R. Davidson, “The Pressing Need to Do Something About Excessive Time and
Cost in Commercial Arbitration,” Mealey’s International Arbitration Report (2008)
(discussing potential remedies for user complaints “that the system is fast losing
its fundamental and historical advantage” as being “faster and cheaper”); 22(3)
A. Marriott, “Breaking the Deadlock,” Arbitration International 411 (discussing the
increased time and expense of international arbitration and the challenges it poses
for companies, particularly smaller and medium-sized companies and companies
from emerging countries).
7
See [Steven Smith’s article]; S. Elsing, On Babies and Bathwater, Keeping the
Good (and Getting Rid of the Bad) From the Company’s Perspective (2010); T. Hen-
nike, International Arbitration: A Vexing Solution (2010).
8
They say that actions speak louder than words, in which case no action
speaks more loudly about the growing concern of the user community regarding
the time and cost of international arbitration than the formation by many of the
world’s largest users of international arbitration of an organization, the Corporate
Counsel International Arbitration Group (CCIAG), devoted to driving reform in
international arbitration. See http://www.cciag.net/.
9
See, e.g., A. Clarke, “Presentation to the ICC Commission on Arbitration,
International Arbitration: Current Corporate Concerns,” at 22 (citing a need for
“robust case management by arbitrators” and “tighter control...from institutions”);
P. Hoebek, V. Mahnken and M. Koepke, “Time for Woolf Reforms in International
Construction Arbitration,”11(2) International Arbitration Law Review at 9 (2008)
(advocating as a key element of reform that arbitral tribunals take a “much stron-
ger case management role”); M. McIlwrath and R. Schroeder, “The View from an
International Arbitration Customer: In Dire Need of Early Resolution”, 74 Arbitra-
tion at 11 (2008) (pressing arbitration institutions to “use their monitoring role and
authority to ensure that tribunals are being proactive in managing the arbitration”);
R. Davidson, “The Pressing Need to Do Something About Excessive Time and Cost
in Commercial Arbitration,” 23(6) Mealey’s International Arbitration Report at 2
(advocating arbitrators to be more “courageous” in imposing controls on the pro-
ceedings); D. Rivkin, “Towards a New Paradigm in International Arbitration: The
Town Elder Model Revisited,” 24(3) Arbitration International at 385 (“arbitrators
must be more proactive and willing to take control”); J. Najar, “Inside Out: A
User’s Perspective on Challenges in International Arbitration,” 25(4) Arbitration

its corporate users,10
nearly all respondents identified arbitrator availability
and performance as among the strongest contributing factors to the
increased costs and delays associated with international arbitration, and
strongly favored more active case management by arbitrators and earlier,
deeper familiarization of the issues by arbitrators to drive greater efficiency
in resolution.
Corporate users also recognize their own role and responsibility as
parties to influence the efficiency of the proceedings, most particularly by
exercising control over external advisors.11
But the efficiency concerns heard
from sophisticated users are generally not about those proceedings where
both parties engage in scorched earth tactics. Rather, they are aimed at
situations where one party seeks a prompt and efficient resolution and the
other demands lengthy time periods, substantial documentary disclosure, or
a lengthy, multi-week hearing to achieve a reasonable result. In those cir-
cumstances, the party seeking a timely and efficient proceeding necessarily
must look to the tribunal and institutional rules for satisfaction because
only the arbitrators and institutions can impose reasonable controls on the
excesses demanded by one side. Alternatively, these concerns are aimed at
situations where the arbitrators themselves do not proceed with reasonable
diligence.
The good news is that this message has begun to resound with the major
arbitration institutions, which in the past two years have introduced an array
of initiatives designed to improve the time and cost of arbitration in response
to user concerns. These include:
• The 2007 Report from the International Chamber of Commerce (ICC)
Commission on Arbitration: Techniques for Controlling Time and Costs
in Arbitration (2007),12
and the 2010 revisions to the ICC’s Arbitrator
Statement of Acceptance, Availability and Independence.13
International at 523 (“arbitral tribunals should be assessed on the robustness of their
cost-saving procedures”).
10
See note 6. In the interests of full disclosure, one of the authors is a member
of the CCIAG.
11
The CCIAG survey referenced above reflects corporate users’ recognition of
the responsibility that parties bear in determining the efficiency of the process.
12
ICC Publication 843 (2007), available at http://www.iccwbo.org/uploaded-
Files/TimeCost_E.pdf.
13
The revised Statement of Acceptance, Availability and Independence
requires nominated arbitrators to identify other matters that they are currently
handling, to acknowledge the importance of completing the arbitration “as promptly
as reasonably practicable,” and to affirm that they can “devote the time necessary

• The International Center for Dispute Resolution (ICDR) Guidelines
for Arbitrators Concerning Exchanges of Information (2008).14
• The German Institution of Arbitration (DIS) Supplementary Rules for
Expedited Proceedings enacted in 2008.15
• The Centre for Effective Dispute Resolution (CEDR) Rules for the
Facilitation of Settlement in International Arbitration (2009).16
• The CPR Global Rules for Accelerated Commercial Arbitration enacted
in 2009.17
• The 2010 College of Commercial Arbitrators (CCA) Protocols for
Expeditious, Cost-Effective Commercial Arbitration.18
• 2010 amendments to the Singapore International Arbitration Centre
(SIAC) Rules providing expedited arbitration procedures and a more
general mandate for tribunals to conduct expeditious and economical
proceedings.19
Even one prominent international law firm, Debevoise & Plimpton, contrib-
uted to the drive for greater efficiency with its recently announced Protocol
to Promote Efficiency in International Arbitration, in response to concerns
expressed by the firm’s corporate clients “about the increased length and cost
of the arbitration process.”20
to conduct this arbitration diligently [and] efficiently.” The Statement also provides
that the ICC Court will “consider the duration and conduct of the proceedings”
when fixing the arbitrators’ fees, but there has been no public evidence of such fee
reductions where proceedings ran unduly long and the ICC has not issued any more
specific guidelines that might inform users as to whether there are any teeth to that
provision. See http://www.iccwbo.org/uploadedFiles/Court/Arbitration/News/2010/
January_SAAI.pdf.
14
See http://www.adr.org/si.asp?id=5288.
15
See http://www.dis-arb.de/download/2008_SREP_Download.pdf.
16
See http://www.cedr.com/about_us/arbitration_commission/Rules.pdf.
17
See http://www.cpradr.org/CPRStore/tabid/67/ProductID/159/Default.aspx.
18
See http://www.thecca.net.
19
See http://www.siac.org.
20
See http://www.debevoise.com/arbitrationprotocol (outlining specific steps
on how the firm’s lawyers will conduct themselves at each phase of an arbitra-
tion proceeding); see also M. McIlwrath, “Faster, Cheaper: Efficiency Initiatives in
International Arbitration,” 76 Arbitration 532 (Aug. 2010) (commenting on the
Debevoise Protocol).

THE MISSING LINK: THE NEED FOR GREATER
TRANSPARENCY REGARDING PERFORMANCE
OF ARBITRATORS AND INSTITUTIONS
All of these protocols, guidelines and rule changes represent welcome prog-
ress, and we hope that time and cost initiatives will remain an area of priority
and focus for institutions.21
But unless they are actually put into practice by
arbitrators and institutions, they remain good intentions only.
The ICDR Guidelines, for example, do not shy away from the real chal-
lenge, noting that, “The purpose of these guidelines is to make it clear to
arbitrators that they have the authority, the responsibility and, in certain
jurisdictions, the mandatory duty to manage arbitration proceedings so as to
achieve the goal of providing a simpler, less expensive, and more expeditious
process...”22
Many of the other initiatives described above similarly empha-
size stronger, more proactive case management by arbitrators as a critical
element to more efficient proceedings.23
In short, even the various efficiency
21
By way of example, there is an ICC Task Force currently reviewing poten-
tial revisions to the ICC Rules, with participation from corporate users, and it is
the hope of the authors and the corporate community that their concerns will be
reflected in various enhancements to the ICC Rules.
22
See, e.g., ICDR Guidelines for Arbitrators Concerning Exchanges of Informa-
tion, note 12.
23
See SIAC Arbitration Rules, Rule 16 (“The Tribunal shall conduct the arbi-
tration in such manner as...to ensure the fair, expeditious, economical and final
determination of the dispute” and may “direct the order of proceedings, bifurcate
proceedings, exclude cumulative or irrelevant testimony or other evidence and
direct the parties to focus their presentations on issues the decision of which could
dispose of all or part of the case.”); ICC Techniques for Controlling Time and Costs
in Arbitration, Art. 33 (“The arbitral tribunal should consider informing the parties
that it will proactively manage the procedure throughout the arbitration so as to
assist the parties in resolving the dispute as efficiently as possible.”); ICC Statement of
Acceptance, Availability and Independence (requiring arbitrators to affirm that they
will conduct the arbitration “diligently and efficiently” and complete the proceeding
“as promptly as reasonably practicable”); DIS Supplementary Rules for Expedited
Proceedings, Rule 1.4 (“The arbitral tribunal shall at all times exercise its discretion
to determine the procedure...in the light of the parties’ interest in expediting the
proceedings”); CPR Global Rules for Accelerated Commercial Arbitration, Rule 1.6
(“The Arbitral Tribunal is actively to manage the arbitration proceeding and may
limit the evidence presented at the proceedings, impose time limits on each party’s
presentation of testimony or otherwise control the proceedings as is necessary in the
discretion of the Arbitral Tribunal to arrive at a speedy, just Award. The Arbitral
Tribunal may also proceed simultaneously with different phases of the arbitration,
and otherwise exercise discretion to manage the proceedings to conform to the
overall time limit.”).

initiatives that have been introduced ultimately recognize that their chances
of success still lie to a considerable degree in the hands of the tribunal.
The question facing parties, however, is which arbitrators are inclined
to implement these procedures so that they become more than just good
intentions? Which arbitrators have a track record of strong case manage-
ment? These are questions that should be highly relevant both to the provid-
ers of arbitration services (institutions and arbitrators) and to the users of the
same. We expect that institutions and arbitrators with a strong track record
of delivering timely awards would wish a better way to communicate and
demonstrate their success to parties. Similarly, parties choosing institutional
rules want to know which institution’s rules may be more advantageous for
the types of disputes they anticipate may arise, and which arbitrators are
most likely to deliver an award consistent with their expectations of how the
proceedings should be conducted.
These questions cannot meaningfully be answered without better and
more standardized metrics and information transparency in at least two funda-
mental areas: (1) institutional performance, and (2) arbitrator performance.
Institutional Performance
We address institutional performance first because this really should be
the low hanging fruit easiest to harvest. Institutions already maintain data
regarding the length of their arbitration proceedings, and several publish
their statistics annually. But the data typically is geared toward overall trends
and does not contain details regarding the actual performance of the insti-
tutions.24
Moreover, because the data is not standardized from one institu-
tion to another, it is difficult (if not impossible) to compare how institutions
perform relative to each other.
For example, there is not even consistency across institutions on what
qualifies as an “international arbitration.” The Chamber of Arbitration of
Milan publishes an annual report that sensibly indicates the number and
24
The ICC, for example, publishes statistics annually concerning its caseload,
revealing such information as the number of new matters filed, the geographic
dispersion of these matters, as well as the geographic dispersion of the parties and
arbitrators, the number of arbitrator challenges made and decided, and similar top-
level figures regarding overall claim filings. While informative and instructive with
respect to broader trends, the data typically does not reveal information concerning
the duration of the matters before the ICC, nor the kind of detailed breakdown
discussed below.

percentage of proceedings with a “degree of internationality” (defined as
at least one foreign party) as compared to those considered to be purely
“domestic” arbitrations.25
By contrast, the AAA considers as “international”
those arbitrations which it chooses to have managed by its international
branch, the ICDR; this decision is based on an internal ICDR assessment of
whether the dispute involves international interests that would benefit from
international case management (even though the parties may all be from the
same country).26
The ICC simply reports the number of all arbitrations that
it conducts, without distinguishing whether they are international or domes-
tic (and even though a sizeable percentage are between parties of the same
country, most frequently France).27
We address below exactly what sort of standardized data we believe
institutions should be reporting, but all should have a common baseline that
defines that which is ultimately being measured. For information about insti-
tutions to be usefully compared, the measurements should be standardized
and consistently reported (and potentially even audited). We believe the data
is already available to the institutions, and its standardization and publica-
tion would greatly facilitate user choice of institutional rules and protocols,
allowing them to choose rules and procedures that tend to best facilitate the
types of disputes they anticipate may arise and best meet their expectations
overall.28
Perhaps more importantly, the availability of standardized comparative
information should assist institutions in being more competitive, and under-
standing the rules and procedures that increase the likelihood of a quicker
and more efficient resolution, particularly as they are able to observe changes
over time. The same could be said of the assistance such standardized data
25
The Chamber of Arbitration of Milan’s annual statistics are available at
http://www.camera-arbitrale.it/Documenti/arbitration_stat_2009-en.pdf.
26
In episode 59 of the CPR Podcast Series, International Dispute Negotiation,
ICDR solutions manager, Christian Alberti, explained how the ICDR receives cases
based on an internal AAA determination of international aspects of the dispute. See
http://www.cpradr.org/NewsArticles/Podcasts/tabid/319/Default.aspx.
27
See “Facts and Figures on ICC Arbitration—2009 Statistical Report” (Feb.
2010), http://www.iccwbo.org/court/arbitration/index.html?id=34704.
28
For example, a party may have a preference for rules, such as those of
SIAC or the ICC, which provide for institutional scrutiny of the tribunal’s award
before it is issued, but not if this causes a substantial delay in the final issuance of
the award. While a common reaction might be to expect that such scrutiny would
cause SIAC and ICC arbitrations to be slower by adding an extra step in the process,
there currently is no data for a party to make an objective assessment of whether,
in fact, this is the case or how much additional delay the scrutiny process is likely
to introduce.

could provide tribunals when considering whether to adopt certain case
management techniques.29
Procedures that are shown to be successful will be adopted more vigor-
ously. Parties will be better able to reward with their business those institu-
tions that can demonstrate that they can better meet user expectations with
respect to efficiency and cost. Institutions that underperform (in users’ eyes)
will be motivated to improve and will better understand where and why
improvement is needed. Just as 94% of university professors surveyed in one
study felt they were better than the average faculty member at their univer-
sity, most institutions appear to believe they deliver efficiencies over other
institutions, and may fail to recognize their failure to genuinely meet user
needs.30
If that is the case, then institutions should be willing to embrace data
that demonstrate any competitive advantages.
Finally, greater transparency and openness will only enhance the stand-
ing and reputation of international arbitration with users, particularly those
with no experience, or whose perceptions may have been formed through
anecdotal war stories or a first bad experience.
As for what data should be made available, we believe parties wish to
have concrete answers to questions such as those below with respect to indi-
vidual institutions, and also in a form that can be compared with similar data
reported by other institutions:
• Domestic vs. international arbitration. Parties to international com-
mercial contracts will want to know the average length of time of dis-
putes that will be similar to their own disputes. For this, the concept
of “international arbitration” should be defined so that the reported
data can be fairly and accurately compared.
• Average start to conclusion. Institutions should report data that
would allow parties to assess the average resolution time of an
29
There is a well-worn debate, for instance, on whether bifurcation tends to
save time and cost or add time and cost. While the answer will inevitably vary to
some degree depending on the case, an objective analysis based on standardized
data provided by different institutions, rather than on anecdotal experience shared
by practitioners with potentially very different practices, would undoubtedly help to
answer that question or give greater insight into the types of cases where bifurcation
makes sense and where it may not.
30
Also referred to as the “Dunning-Kruger Effect,” after the authors of the
Cornell university study of professor self-assessments. See J. Kruger and D. Dun-
ning, “Unskilled and Unaware of It: How difficulties in recognising one’s own
incompetence lead to inflated self-assessments,” Journal of Personality and Social
Psychology, 77 (1999).

institution’s case, from request to arbitration to the issuance (physi-
cal delivery to the parties) of the final award. To be truly useful, this
data should be broken into detail based on claim amounts at issue
(e.g., under $1 million, $1 million to $10 million, $10 million to
$50 million, etc.), and the type of disputes (e.g., construction disputes
vs. intellectual property disputes).31
• Length of stages of proceedings. Similarly, institutions should pro-
vide data on how long each stage takes, such as the length of time
from confirmation of the tribunal to the completion of the hearing,
and from completion of the hearing to issuance of the award, using a
similar breakdown based on claim amounts and dispute types.
• Number of arbitrations referred to mediation and number of cases
settled before an award was issued. Institutions should be mindful
that parties want resolution, and if an institution reports that, for
example, 50% of its cases settled through mediation sponsored by the
institution within the first six months of the request for arbitration,
this would be a statistic that would draw attention.
• Costs. Institutions should also be able to report objective data about
the costs charged by the institution and the arbitrators in the proceed-
ings, broken down by the type of dispute and amount in dispute.
There are other data points that, if readily available, would certainly inform
our advice when we are asked, as company litigators, to suggest which insti-
tutions the company should prefer or accept in our contractual dispute reso-
lution clauses, and would provide us with useful support for decisions to
propose one institution over another to counterparties in contract negotia-
tions.32
Again, institutions already have this data: making it publicly available
31
A statistician would tell us that time to resolution should not only be
reported as an average, but should also be reported as a mode and range, or using
other statistically appropriate means to normalize the data to account for substan-
tial outliers (e.g., 25% resolved within 1 year, 60% within 2 years, etc.). But even
average time to resolution based on amount at issue and case type would be highly
useful data.
32
Above we have set out what we consider to be the bare minimum data that
should be provided. Undoubtedly, there are other types of data that would also
be highly useful, not only for users, but also for practitioners and the institutions
themselves. For example, data on the percentage of cases utilizing certain procedural
techniques (e.g., bifurcated cases v. non-bifurcated cases, or cases where some form
of early disposition of key issues was used), or resolution time using such techniques.
Data showing resolution times based on the nationality of the parties might also be
highly informative, showing for example, the impact on resolution time (if any) if
both parties are from common law jurisdictions or civil law jurisdictions.

in a more meaningful, standardized (and, of course, anonymized) format
for purposes of comparison would assist parties in selecting the appropriate
institution for their contractual disputes (i.e., perhaps in some cases hourly
fees for tribunals would make more sense than ad valorem fees, or vice
versa).
Arbitrator Performance
While the ability to assess and compare institutional performance through
standardized metrics will, we believe, lead to a greater degree of user satis-
faction with international arbitration, the greatest benefit will come from the
availability of standardized information about arbitrator performance. We
are relatively optimistic that it is not a question of whether such information
will eventually be available, but when this will happen and the form it will
take—and whether arbitrators and institutions will play a meaningful role in
the development of performance measures for arbitrators.33
Indeed, it is striking that such information is not available already.34
We
live in an age when business transparency is both expected and demanded,
and where unprecedented amounts of information are available at our fin-
gertips through the Internet—in fact, on our cell phones. And yet when it
comes to obtaining information about the actual performance of arbitrators
and how they conduct proceedings, little useful information is publicly avail-
able. As a result, parties inevitably resort to the same method that is as old
as mankind—word of mouth. Send out an email or make phone calls: “does
anyone know this arbitrator, what has your experience been?”
Even at large companies with extensive experience in arbitration, it is
often difficult to determine reliably the competency and suitability of the
arbitrators we would like to appoint or are asked to consider. If that is the sit-
uation with sophisticated users, then it is fair to assume that there is indeed
33
The demand for this information in a web-based, information-driven, “twit-
tering” world is inevitable. For example, the on-line rating of lawyers is already a
reality in the U.S. where the Association of Corporate Counsel (ACC) has created
a Counsel Value Index to assemble and make available to ACC members evalu-
ations of law firms by corporate counsel. The creation of client review ratings by
Martindale-Hubbell is another example. See “Grade Anxiety: Firms fret about clients
rating their work,” Am. Bar Ass’n Journal, at 49 (Feb. 2010).
34
We are aware of one nascent initiative, “Positively Neutral,” that was
announced late last year by CPR, but are unaware of the degree to which this initia-
tive has taken hold. See http://www.cpradr.org/CPRNeutrals/NEWPositivelyNeutra-
lEvaluations/tabid/434/Default.aspx.

a broader and even desperate need for improved information and transpar-
ency among most other users.
As Professor Catherine Rogers has noted:
The proliferation of directories and rosters of potential international
arbitrators undoubtedly have salutary side-effects in increasing the
public availability of the identity of potential candidates. To provide a
true quality control function or shed real light on the otherwise opaque
market, however, they must do something more than simply provide
access to international arbitrators’ self-crafted and self-serving pro-
files. Currently, none of the information resources appears to collect,
either independently or through voluntary disclosure from participat-
ing candidates, information about whether those arbitrators listed have
ever been challenged for bias or whether any of their awards have been
refused enforcement. In addition, these factual profiles could be supple-
mented with feedback from former parties or other arbitrators regard-
ing their past experiences with particular candidates. While relatively
modest proposals, creating public access to such information would go
a long way toward overcoming the inadequacies of the current situation
in which the most valuable information is available only anecdotally
and is not cost effective to obtain.35
There are presently no effective feedback mechanisms among parties, institu-
tions and arbitrators during and after arbitration proceedings. While certain
institutions do solicit feedback from users following the completion of pro-
ceedings, we are not aware of any institutions that do so effectively or that
give sufficient emphasis to arbitrator performance.36
The data that is elicited
by institutions is not standardized among them, and even more problematic,
the data is not made available (that we know of) to anyone outside the con-
fines of the institutions that gather it—not even with the arbitrators them-
selves. One can only ask, if the feedback is not shared with arbitrators, how
does it affect their performance? If it is not available to parties and counsel,
how can it affect future appointments at all?
35
“The Vocation of the International Arbitrator,” 20 Am. U. Int’l L. Rev. at
1009-1010 (2005). In her 2005 article, Professor Rogers was perhaps the first to
call for a comprehensive arbitrator information resource, among other reasons, to
reduce information asymmetries among parties, in turn making international arbi-
tration more transparent and broadly accessible.
36
For example, the ICC feedback form assesses, for the most part, the perfor-
mance of the institution’s case managers.

Institutions often claim that arbitrations would move more quickly if
parties allowed the institution to appoint the panel, both because this would
shorten the appointment and confirmation process and because the institu-
tions could use their knowledge and experience to chose suitably experi-
enced arbitrators. While this may be true, the simple fact is that parties will
always be reluctant to consign appointment power to the institution until
the institutions share with the parties far more comprehensive information
about the pool of arbitrators from which the institution will draw, including
information that better defines the expected level of performance of these
arbitrators.
The institutions already have extensive knowledge concerning which
arbitrators are and are not meeting expectations. One of the authors was
struck by a recent conversation he had with a well-known representative
from a leading arbitration institution, in which this representative com-
mented that there were certain arbitrators he/she would be certain “never to
use” when he/she returned to private practice. Such information should not
be a secret known only to privileged insiders.
As with institutions, we believe the following information should be
available about arbitrator performance, and we divide this information into
three categories: information already in possession of the arbitrators them-
selves, information that institutions could provide and, finally and most con-
troversially, information based on party assessments of arbitrators harvested
at the conclusion of the proceedings. We note, again, that much useful infor-
mation is purely objective data that is already in the hands of arbitrators and
institutions. They would merely need to make this information available in
a standardized form so that parties could compare the performance of dif-
ferent candidates.
Information that Arbitrators Could Provide
• Domestic vs. international arbitration experience. Again, parties
will certainly want to know whether the arbitrator they are nomi-
nating has the appropriate type of experience. For example, is this
an arbitrator whose experience is mainly as an arbitrator sitting in
domestic Indian arbitrations, or an Indian-trained arbitrator whose
experience is mainly in international proceedings located outside of
India? Often, arbitrator biographies do not make such important dis-
tinctions, and just claim number of proceedings, without regard to
whether they are domestic or international.
• Statement of case management philosophy. Arbitrators are properly
expected to maintain flexibility in their approach, so that they can

adapt to the particular circumstances of a case. Nonetheless, a state-
ment prepared by each arbitrator setting forth his/her general views
and philosophy with respect to case management, including any ini-
tiatives or procedures they have used in the past, would be useful to
parties during the selection process and in setting their expectations.
We can imagine a method by which arbitrators could also choose
a box or range that best describes their approach. For example, on
a scale of 1-5, does the arbitrator believe a tribunal should defer to
party autonomy (1) or exercise a firm hand in moving the proceed-
ings (5)? A self-description of this type would help a party better
match the arbitrator to their particular expectations, by providing one
indication of whether the arbitrator will tend to be passive or active
in directing the argument and evidence, receptive to considering pro-
posals for early resolution of certain threshold issues, etc.
• List of previous arbitrations in which the arbitrator has been
appointed, without identifying parties, and as to each providing:
- Whether acted as sole arbitrator, chair or party-nominated co-
arbitrator.
- Country of origin of parties.
- Amount of dispute, and general nature of claims (intellectual prop-
erty, construction, etc.).
- Whether case settled before award was rendered.
- Time from constitution of tribunal to issuance of award by tribunal
- Whether the tribunal took steps to simplify the arbitration, and
shorten the time and cost, for example by bifurcating the pro-
ceedings to hear potentially dispositive preliminary issues first, or
conducting hearings via videoconference (or telepresence, a more
recent and more reliable technology).
- Identification of any awards to which the arbitrator was a signatory
that have been challenged, the courts in which the challenge took
place, and the result of the challenge (if available).
- Dissenting opinions. We believe parties will also wish to know
whether the arbitrator has authored any dissenting opinions in the
past and, if so, the ratio vs. the number of unanimous awards.
• References. A list of any in-house or external counsel in those arbitra-
tions whom they have confirmed are willing to be identified (without
connection to any particular dispute) and serve as a reference, along
with a stated confirmation that they have not sought to determine or
influence the feedback that such counsel might provide.

Information that Arbitral Institutions Could Provide
• Resolution times for disputes heard by the particular arbitrator,
as reported by the institution and parties. Arbitration institutions
should systematically disclose the length of time arbitrators took to
reach resolution in past proceedings (and also the aggregated aver-
ages), from time of confirmation to close of hearings, and from close
of hearings to the issuance of an award (or draft award in the case of
the ICC).
• Role of the arbitrator. In reporting both individual case statistics and
averages, institutions should distinguish among arbitrators acting as
sole arbitrator, chair of three-member tribunals, and wing arbitrators
in three-member tribunals.
• Arbitrator costs. Some institutions, such as the ICDR, already pro-
vide the proposed arbitrators’ hourly rates when proposing candi-
dates. Others do not, especially those that calculate arbitrator fees
on an ad valorem basis, assuming that the hourly fee charged by the
arbitrator for other matters is therefore irrelevant. From a party per-
spective, it is not, as there may be justifiable concern as, for example,
over how much time an arbitrator who charges a high hourly rate
on other matters may be willing to devote to a relatively small case
charged on an ad valorem basis.
Information that Parties Could Provide through Feedback to Institutions
or Other Third-Party Organizations, with Respect to Proceedings in which
the Arbitrator Appeared
In providing these areas of assessment, we largely follow the results of a
project carried out in 2006 at the behest of the late Thomas Wälde to develop
a standardized “arbitrator evaluation form.”37
We do so because the result-
ing template was developed jointly by representatives from all constituencies
in the arbitration process—in-house counsel, law firm counsel, academ-
ics, arbitrators, and institutional representatives—and included significant
input also from a good number of subscribers to OGEMID (Oil Gas Energy
Mining Investment Disputes), a highly active on-line discussion forum for
37
See “Form for Submission to Parties at Conclusion of Draft Proceedings
(Following Settlement or Final Award),” Transnational Dispute Management (TDM
2007). Professor Wälde was a highly respected and inspirational thought leader in
many areas, including international investments and dispute resolution.

international arbitration professionals.38
Consequently, we believe it repre-
sents a thoughtful and balanced assessment template.
Specifically, the proposal calls for a simple arbitrator evaluation form
to be submitted to parties and their counsel following the issuance of a final
award or other conclusion of the proceedings. The form identifies the role
of each arbitrator as sole arbitrator, chair or party appointed wing arbitrator,
and then asks respondents to rate the tribunal and individual arbitrators on
a simple scale of 1-5 (with 5 representing the highest mark) in the following
areas:
• Meeting party expectations: whether the proceedings were conducted
and concluded in a manner consistent with the party’s expectations
with respect to time, cost and efficiency.
• Firm and fair hand: whether the tribunal dealt promptly and fairly
with difficult issues.
• Simplification: whether the tribunal took steps to simplify the arbi-
tration, for example by deciding issues early and/or issuing interim
awards on critical matters.
• Reasonable limitations on procedure: whether the tribunal reason-
ably limited the number of submissions, evidence, and hearing dates,
and fairly prevented either party from engaging in tactics that would
have been an unreasonably wasteful of resources or disproportionate
to the amount in dispute.
• Schedule/Time extensions: whether the tribunal kept a schedule that
was appropriate considering the amount in dispute and the complex-
ity of the issues to be decided, and whether the tribunal asked the
parties or arbitration institution to grant extensions of time to render
an award.
• Availability: with respect to each arbitrator, whether their personal
schedule was a cause of unreasonable delay of the proceedings.
• Fees: whether the fees of the tribunal were reasonable considering the
amount in dispute and complexity of the issues.
• Party-appointed arbitrators: with respect to each of the party-
appointed arbitrators, whether the arbitrator added value to the man-
agement of the proceedings, and whether the arbitrator appeared at
all times to be neutral and independent, such that the party would
feel comfortable appointing them as sole arbitrator in a future
proceeding.
38
See E. Eftekhari, “The Development of a Template Form for Providing Party
Feedback to Arbitrators,” Transnational Dispute Management (March 2009).

• Overall rating: an overall judgment of each arbitrator’s performance
on a scale of 1-5 from poor to outstanding.39
This evaluation form is simple, would not take much time for parties or
their counsel to complete, and could easily be administered through an on-
line survey. Moreover, all of this information—from arbitrators, institutions
and party feedback—could be readily provided to parties and practitioners
through an on-line resource to enhance their ability to make informed deci-
sions and to select arbitrators that most closely align with their expectations.
These measures would also assist arbitrators and institutions in improving
their services.
Arbitrator Performance: Responding to Potential Objections
There undoubtedly will be those who argue against creating standardized
assessments of arbitrator performance or who claim that it is just too difficult
to do, and others who simply fear such change. However, we do not find
their arguments compelling. While transparency of arbitrator performance
does raise certain challenges and legitimate concerns, these challenges and
concerns are readily manageable and do not represent intractable obstacles
that should prevent us from achieving the many benefits that increased
transparency would bring.
The concern that we have most often heard expressed is a fear as to
the objectivity and accuracy of the data that would be collected and shared.
Arbitrators are understandably concerned that parties or lawyers who lose
an arbitration will inevitably give them bad marks. This concern is legiti-
mate, but it is also one that exists already, without publicly available informa-
tion about performance. Parties that believe they have unjustifiably lost may
freely give bad marks to the arbitrators who ruled against them when asked
for comment or referral of names for future arbitrations. But because this
word of mouth is unlikely to reach the arbitrators, they may never know of
it or have the opportunity to address any legitimate complaints that might be
raised. One of the authors once noted an audience’s vocal skepticism towards
transparency at an arbitration conference. He responded by noting that he
already had a number of e-mails from other practitioners that were critical
of at least half a dozen of the arbitrators present, but that they would never
39
As discussed below, we would add to this a question asking respondents to
identify whether in their eyes they won or lost the arbitration or obtained a mixed
result.

know what these e-mails said about them. Interestingly, the skepticism in the
room was quickly transformed to acute curiosity.
Which really begs the question: does today’s approach of opacity instead
of transparency truly offer any advantages? The countervailing assumption
seems to be that, when users ask their colleagues or counsel for their expe-
rience with certain arbitrators, the information received will necessarily be
an unbiased reflection of the arbitrator’s performance. But as always, the
real world is far messier. Word-of-mouth feedback can be rife with unstated
biases, expectations and experiences. It can come from losing parties with
an axe to grind. And rarely is it uniformly positive; indeed, many arbitrators
might well be shocked to hear what is said about them that is influencing
users and practitioners in their appointment decisions.
In short, the system we have today that relies almost exclusively on ad
hoc, word-of-mouth experience should give rise to the same concerns by
arbitrators regarding the reliability of the feedback that is being provided to
users about their performance. After all, it is far easier for a losing party to
be unfairly critical in the confines of an email or a phone call that no one
else will ever see or hear. And yet the current system also has the added
disadvantages that the information is not uniformly accessible to all users
and denies arbitrators themselves access to what is being said about them. A
more systematic evaluation system that incorporates both objective measures
and user feedback would create a more level and transparent playing field
against which more objective assessments can be made and shared with users
and arbitrators alike. It can incorporate safeguards against the dissemination
of false information or unfair comment, and just as importantly, it would
allow arbitrators themselves a role in defining the process by which they are
assessed.40
The model employed by the International Mediation Institute (IMI)
offers one possible route to address concerns over potential biases injected
by parties who feel they received a bad or unfair result. For those not famil-
iar with IMI, it is an international organization formed in 2007 through the
cooperation of several prominent mediation providers and well-known mul-
tinational companies, with the aim of driving greater transparency and high
competency standards in the global mediation profession. A vital component
of the IMI offering is the collection and dissemination of comprehensive
information regarding mediators who participate in the IMI certification
process, in the form of a publicly available, and fully searchable, web “portal”
40
For example, IMI consulted with a large number of mediators in developing
its performance assessment process.

that contains each mediator’s full profile.41
One section of each profile is the
mediator’s own description of their approach and “style” towards dispute
resolution, for example whether they consider their approach to be “facilita-
tive,” “evaluative”, or “transformative”, information that parties will want to
know before appointing a mediator.
More significant (and, at least initially, controversial) is the section of
each IMI profile devoted to providing party feedback about how the media-
tor handled previous disputes, including whether the parties were satisfied
with the services provided. The party feedback is collected from parties by
an independent “reviewer” appointed by the mediator who synthesizes the
data into a “feedback digest” that accompanies the mediator’s full profile on
the IMI web portal.42
For negative feedback that occurs more than three times, the reviewer
must go back to the party who provided the comment and the mediator to
seek an explanation as to what led to the poor review before reflecting it
in the feedback digest. Experience has now shown that, when handled and
reported in such a professional manner, the occasional negative feedback will
not only enhance the credibility of a mediator’s profile but can also make the
mediator more attractive to parties. For example, the feedback digest in
the IMI profile of one well-known mediator states that it was compiled on
the basis of feedback from parties to over 40 past mediations. The digest
notes the praise given about the mediator’s skills in the large majority of the
cases, but also mentions that in a minority of cases there was some criti-
cism of how the mediator handled the dispute. The reviewer states that he
discussed these cases with the mediator, who provided his views about the
negative comments, and also indicated that he was working to address one
of the concerns expressed.
We offer up the example of the IMI simply to demonstrate that con-
cerns over the objectivity and accuracy of user feedback can be overcome.
While many mediators initially shared similar concerns and skepticism
about the collection and dissemination of user feedback, over 900 leading
41
See http://www.imimediation.org. The feedback solicited by the IMI and
IMI-certified mediators is relatively simple, and generally asks each participant in
the mediation to rank their level of satisfaction with the mediator in several respects
on a scale of 1 to 5. See http://www.imimediation.org/feedback-request-form. The
IMI model also demonstrates that feedback can be usefully solicited regarding a
confidential process.
42
Appointment of the reviewer and preparation of the feedback digest must be
done accordance with specific IMI guidelines, and are subject to review and approval
by IMI once completed to ensure conformance with the requisite guidelines. See
http://www.imimediation.org/feedback-digest-guidelines-for-reviewers.

mediators around the world have been convinced by the procedures and
safeguards employed by IMI and have registered to become IMI-certified.
And hundreds already have made their profiles available on the IMI portal,
each with party feedback digests. Many prominent mediation institutions
likewise have embraced the model and have chosen to participate actively
in IMI, including arbitration institutions such as ICDR and ICC that also
provide mediation services.43
Other potential models also exist.44
One simple
safeguard might be disclosure of whether a performance assessment was
made by a party that indicated it had “won” or “lost” the arbitration. High
marks from a party that perceived itself as having “lost” would undoubtedly
be the highest form of praise, while lower marks from a losing party might
appropriately be viewed with that context.
Moreover, we firmly believe that the majority of users and practitio-
ners will be able to distinguish between thoughtful evaluations and vengeful
evaluations produced by parties who are sore losers, with the vast majority
of feedback likely to be insightful and highly useful. In this regard, we must
emphasize that we are not advocating the collection of feedback concern-
ing the perceived quality of the decision rendered, which inevitably will be
subject to perceptions of winning and losing, but only the manner in which
the case was managed. We are confident that the majority of practitioners
are willing to recognize good case management even if they disagree with
the award rendered.
Ultimately, of course, any system is going to yield both positive and
negative feedback, and that must be accepted and even valued as part of any
performance evaluation program. Few of us receive uniformly positive eval-
uations, and negative or critical feedback, while uncomfortable to receive,
allows each of us to understand how we are being perceived and to improve
on those identified areas of weakness. No one can doubt the effectiveness
of feedback as a mechanism to rapidly improve performance, regardless of
whether the subject is an entire business or an individual, and we would
expect that many arbitrators seeking to expand their practices would wel-
come both client feedback and a mechanism for demonstrating their success
in satisfying parties’ case management expectations.
43
ICDR is represented on the IMI Board of Directors and ICC has a represen-
tative on IMI’s Independent Standards Committee.
44
For example, a for-profit, on-line attorney rating system established in the
U.S. by a former Expedia.com executive, which receives millions of inquiries a year,
allows lawyers to challenge a review and if the reviewer does not respond when ques-
tioned by the site, the review is removed. It is reported that sometimes the challenge
prompts the reviewer to modify his/her review. See note 27.

Another argument that we have heard expressed is that the sharing of
information regarding arbitrator performance invades the confidentiality of
the arbitration process. But none of the information or data that we advocate
be shared invades any reasonable definition or concept of arbitral confidenti-
ality. While the substance of the parties’ dispute may be confidential,45
there
is nothing confidential about the speed of the process or the parties’ satisfac-
tion with the manner in which the case was managed.
Some have argued that European privacy laws limit a provider’s abil-
ity to collect and disseminate feedback on arbitrator performance. The IMI
model clearly shows this argument to be unfounded. While a complete
review and analysis of privacy law requirements is beyond the scope of this
article, it bears noting that any rational model would naturally meet some
of the more prominent requirements of European privacy law, such as the
right of arbitrators to have access to, and to challenge, objectively false data.
As discussed, one of the goals of any performance evaluation system should
be to make the information readily available both to users and to arbitra-
tors, and arbitrators unquestionably should have the right to challenge any
objectively false data submitted about them. Additionally, institutions could
certainly require arbitrators to consent to an evaluation process as part of
the appointment process, much as the IMI encompasses the feedback digest
process when mediators apply for IMI certification.
Lastly, we have been told by some that no standardized form of per-
formance measurement is needed because experienced arbitration practitio-
ners already know who the “good” and “bad” arbitrators are, and therefore
parties need merely employ experienced counsel. While there is certainly
some legitimacy to the point that seasoned practitioners can draw upon their
extensive experience in choosing arbitrators, this has a tendency to result in
the same arbitrators being appointed time and again, which in turn leads to
them becoming over-booked and unable to move proceedings along expedi-
tiously (and contributes to the perception of an arbitration “mafia”). Greater
access to information will help widen the circle of “good” arbitrators who
are routinely appointed. Moreover, in this age of information transparency,
45
Of course, even the substance of the proceedings may not be as confidential
as one might believe. While some institutional rules may limit what arbitrators can
disclose publicly about the proceedings, there is generally no such limitation on what
parties may divulge and, even when there is, the ability to enforce confidentiality is
limited (at best). And, of course, confidentiality may be entirely lost when another
party applies to the courts, for example to enforce or challenge an award. In many
instances, the party seeking to enforce or challenge the award will not only need to
produce the award itself (rendering it immediately public) but may also be required
to re-litigate a number of issues in the court.

information about arbitrator performance should be readily available to all
parties and not a guarded secret limited to a privileged few.
CONCLUSION
There are many ways in which performance measures for institutions and
arbitrators could and may be developed and implemented. Data could be
assembled and made accessible for a fee by a profit-making company like
one of the leading publishers of international arbitration resources. An orga-
nization representing corporate interests might develop such measures, simi-
lar to the initiative of the Association of Corporate Counsel in the U.S. with
respect to the rating of lawyers. Arbitration institutions could take the lead
in developing and sharing such performance measures, or an independent
body such as the IMI could be created with representation from all interested
stakeholders. However the accomplished, the creation and dissemination of
standardized performance measurements for arbitrators and institutions will
fill a critical void and benefit all stakeholders in the arbitration process, as
well as the profession of arbitration as a whole.
The disclosure of such information will substantially enhance the value
proposition of arbitration to users by allowing them to identify much more
readily those arbitrators and institutions which best suit their needs and
desires, thereby improving users’ sense of satisfaction with the process. It
will enhance the ability of institutions to deliver results that meet the expec-
tations of their customers, and reward those most successful in doing so,
while giving guidance to improve each institution’s competitive position.
For arbitrators, it will not only reward those who meet or exceed parties’
expectations—including lesser known arbitrators whose names are not rou-
tinely among those considered, but should be—but will allow those who do
not meet expectations to understand that they have not done so and for
what reasons, so that they can improve the service offering they provide.
Perhaps most important, this increased transparency will enhance the repu-
tation of international arbitration to the benefit of all concerned, by making
the process more open, efficient and predictable (and therefore acceptable)
for parties, and better satisfying their expectations for international dispute
resolution.

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