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News & opinion

17 NOV 2019

Essential qualities needed to become a successful arbitrator

Arbitration has been used to settle commercial disputes in many areas for hundreds of years. The process of using arbitration, rather than the courts has become more common, with the regional construction sector making it their preferred method to resolve disputes.

A form of Alternative Dispute Resolution (ADR), arbitration is a method for legally resolving disputes, which is enshrined in domestic and international law. Arbitrators possess specialist skills which rely on professional experience combined with the ability to fairly and impartially listen to a dispute and then issue a legally binding award – the parties are bound by an arbitrator’s decision.  

To understand the most important qualities that newly qualified arbitrators need to have to obtain work, and how they can build their reputation in the built environment, we spoke to Victor P. Leginsky, Chartered Arbitrator and RICS Faculty member, who teaches on the RICS Diploma in International Arbitration (MENA).

Experience - To be an arbitrator you must have excellent judgment

Typically, this comes with maturity and experience in life and in one’s career. Arbitrations are judged mainly on the facts.  To be able to ascertain the facts (“the occurrence of the fact in issue must be proved to have been more probable than not” based on the evidence, not your knowledge) requires a great understanding of the way systems, people and the world work.  This comes with experience.

Professionalism - An arbitrator must leave his or her ego at home and not bring it to work 

You must remember that you are providing a service to commercial parties that want you to come to a final and binding conclusion about their dispute.  It is not about you.  It is about the Parties, their dispute and the law of their contract.  You must always be diplomatic, respectful and professional.  You are not a judge, and you have no inherent power, so your power derives from respect, consistency, diplomacy, fairness and from being prompt and efficient.

Project Management - Planning and efficiency in execution are important

You need to be a good project manager as arbitration is a 12 to 24-month project that you must bring in on time and budget.

Application skills - you must show that you know and can apply the procedural law of investigations and judicial proceedings in general. 

This will allow you to quickly and concisely apply the applicable rules and the law of the seat in commercial arbitration.  Such procedural law is that of due process, fairness, confidentiality, and ensuring every party has a reasonable opportunity to present its case.  You must also demonstrate that you can come to grips with various bodies of substantive law, as these will be applied as the law of the contract.

Writing skills - you must be a very clear and focused writer

As your evident duty is to make an enforceable award, your writing must be clear and unambiguous, so there is no room for a court to set your award aside.  Every email and letter must be clear and consistent over the 12 to 24 months that you write them, culminating in a clearly-written and well-substantiated award.

Qualifications - you must develop knowledge and skills at commercial arbitration

Commercial arbitration skills can come through the excellent courses taught by dispute resolution organisations such as CIArb or RICS, which offers the distance learning Diploma in International Arbitration (MENA) specifically for this region, designed to increase the number of built environment specialist arbitrators. The Diploma is intended for those who are looking to act as international arbitrators or professionals who could represent parties in arbitration situations.

Once you have some basic certification in commercial arbitration, join an arbitration organization and become involved.  Make it well known that you are available to serve as a tribunal secretary as this will give you exposure to arbitration cases and practitioners. 

You can also consider working for an arbitration institution as a case manager or on their legal staff.  This will give you excellent exposure to commercial arbitration cases and the players in international arbitration. 

The Future of arbitration

Over the years there has been a renewed appetite for arbitration, with the construction and engineering sector embracing it more openly, increasing the use of it going forward.

“These tips may seem archaic, as great advances are being made in technological dispute resolution systems.  However, as long as clever counsels are dreaming up new and more creative arguments to either advance a case or defeat it, I believe experienced, honest and hard-working arbitrators will continue to be needed to determine commercial disputes and assist in the smooth working of the world’s commerce.” – Victor Leginsky