RE

Robin Oldenstam, Chapter 8: Due Process Paranoia or Prudence?, in Axel Calissendorff,

Patrik Schöldstrom (eds.), Stockholm Arbitration Yearbook 2019, Ed. Kluwer Law
International, vol. 1, p. 121-128
p. 121 The perception has been that arbitrators, due to an exaggerated fear of their
awards being challenged, lack decisiveness in certain procedural situations
p. 121 the debate has been almost singularly focused on the perception of users that
arbitrators are ‘paranoid
it has often failed to question the general applicability and correctness of the
diagnosis as such and to appreciate fully the delicate balancing act underlying
many procedural decisions
Although important, procedural decision-making is not only about efficiency.
It should also be guided by broadly framed considerations of fairness and
long-term risk management. Taking such broader considerations into account,
what may sometimes be perceived as an overly cautious and inefficient
procedural decision in the short-term, may in fact be the result of an arbitrator
acting with prudence, potentially saving more time and cost in the long term.
p. 124 However, if too much emphasis is put on procedural efficiency and
timeliness, arbitral tribunals run the risk of acting unfairly. Whatever effort
has been put into agreeing to timetables, including procedural cut-off dates
and the like, there will always be situations that have not been fully
anticipated or which may otherwise warrant an exception. To that end,
arbitral tribunals will almost invariably reserve the right to exercise their
discretion and accept deviations from the agreed timetables, e.g., regarding
the late filing of additional submissions or evidence. This right to exercise
discretion is also recognized by the rules of most leading institutions, as is
the fundamental and overriding duty of the arbitral tribunal to give each
party an equal and reasonable opportunity to present its case. The primacy
of this latter duty is often expressed by absolute wordings such as ‘In all
cases … ’ [art. 22(4) ICC Rules; art. 23(2) SCC Rules], indicating that the
fair opportunity for each party to present its case may ultimately trump most
other considerations, including efficiency as to time and cost.
p. 125-126 Fourth, most arbitrators will know that challenges of awards – at least in
arbitration friendly jurisdictions – are typically an uphill struggle, with very
few resulting in whole or even partial set aside. For instance, based on data
covering the last fifteen years, the statistical likelihood for a challenge of an
award to be successful before the Swedish Courts of Appeal is only around
5%,
p. 126 making cautious procedural decisions may be compared to paying an
insurance premium against an unlikely, but extremely damaging, event. If
the award were to be set aside or its enforcement refused, the entire
arbitration would have been for nothing. The size of this ‘premium’ will,
amongst other, depend on its ultimate impact on the timing of the final
award. If a party’s procedural request can largely be accommodated within
an existing schedule or at least without jeopardizing the time for rendering
the final award, it is probably more likely to be granted by a tribunal.
Smit
n5 Adam M. Nahmias, The Enforceability of Contract Clauses Giving One Party
the Unilateral Right to Choose Between Arbitration and Litigation, 21
CONSTR. LAW. 36 (Summer 2001);
 Thomas W. Lyons, Specs and the Single Arbitration Clause, 56 DISP.
RESOL. J. 58 (May-July 2001)
p. 395 An optional unilateral arbitration clause is patently unfair
p. 396 Furthermore, the clause’s discrimination is typically practiced upon the
economically weaker party. No person intent upon protecting its interests will
agree to a unilateral arbitration clause, unless it is economically compelled to
do so or is unaware of the disadvantageous position in which the clause puts
it. In either case, the person discriminated against appears to deserve society’s
protection against an overbearing opponent.
n 113 Judgment of the Supreme Court of Sweden rendered in A.I. Trade Finance v.
Bulgarian Trade Bank, Case No. T1881-99(2000)
Draguiev, UJC
p. 43, par. If a part of the agreement is valid, there are neither policy nor practical reasons
4.2[a] why it should fail and nullify the mutual intention of the parties. If this is
applicable to entire agreements, per argumentum a fortiori it should be
applicable to parts of agreements.
p. 44, par. The part of a unilateral clause which is affected by a defect should fail. The
4.2[b] nature of the defect should generally determine the part of the unilateral clause
to be invalidated. If there is only court jurisdiction on both sides, the severed
part should be that one granting a wider scope of rights, so that in effect both
parties should become equal in terms of chosen places of dispute resolution.
The purpose behind this interpretation is to put the parties on an equal and
balanced footing (on the presumption that this lies at the root of the defect).
Such severance would counter the risk of potestativité or arguments based on
fair trial requirements.

Loukas Mistelis, International Arbitration – Corporate Attitudes and Practices –12

Perceptions Tested: Myths, Data and Analysis Research Report, The American Review of
International Arbitration, vol. xx, year, p. 527 et seq. (ToC for all ARIA issues available on
email)
p. 557 63% of respondents insist on arbitration clauses being included in their
contracts
Jan Paulsson, Arbitration in Three Dimensions, in London School of Economics and
Political Science Law, Society and Economy Working Papers, vol. 2, London, 2010
p. 8 Legal orders are national, and they are different; they may assign different
outcomes to the same event.
p. 11 Arbitrators do not examine the validity of the arbitration clause, or of their
appointment, under the laws of every country that might conceivably be
approached as an enforcement forum. Nor do they have a duty to do so.
Indeed, that task would be impossible, unless they could read the parties’
minds, predict future tracing of assets, and find a crystal ball to reveal where
the res judicata embodied in an award might variously be brought to bear by
any number of affected parties.
p. 33 consensual arrangements for the resolution of disputes should be presumed
valid; the value of freedom is so great that its curtailment cannot be justified
by mere suppositions about its abuse.
Lew/Mistelis/Kroll
p. 166, par. An arbitration agreement should not only result in granting jurisdiction to
3 the tribunal and excluding jurisdiction of the courts, but it should also lead
 to a procedure “leading under the best conditions of efficiency and rapidity
to the rendering of an award that is susceptible of judicial enforcement.”
[Davis, “Pathological Clauses: Frédéric Eisemann’s Still Vital Criteria”, 7
Arb Int 365 (1991) 366.]
Emmanuel Gaillard, Three Philosophies of International Arbitration, in Arthur W. Rovine
(ed.), The Fordham Papers 2009: Contemporary Issues in International Arbitration and
Mediation, Ed. Martinus Nijhoff Publishers, Boston, 2010, p. 305 et seq.
p. 306, 307 he award will be recognized in a number of countries if it meets the
prescribed conditions in those countries. In that vision, the seat does not
matter so much, the place or places of enforcement of the award do. In
recognizing an award that meets certain criteria, the legal order of the place
of enforcement legitimizes, a posteriori, the whole arbitral process.