Italy: Advocacy, Psychology and Tactical Issues in Arbitration

Last Updated: 4 September 2003
Article by Stefano Sutti

Advocacy, psychology and tactical issues in arbitrations are at least as different from what a trial lawyer is used to in judicial proceedings as a trial by jury is from a bench trial.

For example, one factor which must be to taken into account is that arbitrators' choices and performance may affect their personal interests, while this is much less, if ever, the case for a judge or a juror.

This often makes arbitrators acutely aware of the time constraints which apply to the pending dispute, as failure to render the award in due time may result in the loss of their expected fee.

In addition, arbitrators are more concerned with independent scrutiny of their work than the average continental judge is likely to be. While in Italy and in other European jurisdictions reversal by a higher court carries no stigma, it is no secret that the frequent voidance of the awards of, say, an International Chamber of Commerce arbitrator may adversely affect his or her chances of appointments to arbitrate further cases. Further, in many jurisdictions arbitrators enjoy no special protection from actions brought against them personally by a disgruntled party for professional negligence.

As far as ad hoc panel arbitrations are concerned, an additional pressure may be felt by party-appointed arbitrators, namely to "deliver". Some hypocrisy exists in this respect, but while each arbitrator is supposed to be as impartial as any other, the truth is that majority awards voted by the arbitrators appointed by the parties against the opinion of the president of the panel are indeed not a frequent occurrence in the experience of arbitration practitioners.

In fact, in ad hoc arbitrations the advocate's role often ends up being played by four different actors, that is, the party's counsel, the party itself (which is often called to play a more active role than it would in court), the party's expert(s), and... the panel member(s) that the party is entitled to elect. Be this as it may, arbitrators who often participate in proceedings in which the party who chose them... wins will generally be busier than their colleagues, however highly reputed they may be in other respects.

One consequence to be expected of these factors is that arbitrators are in principle more inclined than judges to exert whatever influence and authority they may have on the parties to make them settle their differences at any cost, including through the implicit threat of 'retaliation' against the party perceived as non-cooperative. In Italy this trend may be increased by the still-limited recourse to formal mediation as a dispute resolution tool; arbitrators thus sometimes perceive themselves essentially as mediators and sometimes appear almost reluctant to decide cases before them.

This problem is emphasised by the fact that in early attempts to have the matter settled by the parties, the terms and conditions proposed by continental arbitrators aim towards some middle ground between the parties' positions and demands, but do not and cannot really take into account the strength of their respective cases, especially as their strength may still be largely unknown given the lack of discovery rights and procedures.

Accordingly, the appropriate posturing is much more important than it usually is in Italian judicial proceedings, but perhaps in Labour Courts. In other words, the parties had better take care to avoid being perceived as the side who proves to be unreasonable or prevents an amicable solution from being reached.

At the same time, one must bear in mind that what one party declares to find acceptable may well influence the final decision of the arbitrators as of the seriousness of its claims; a risk which does not exist at all in real mediations (which normally take place behind closed doors before an individual who would in no circumstance participate in the decision of the case), and much less in similar discussions taking place within the framework of court proceedings (e.g., during the hearing provided for by Article 183 of the Italian Code of Civil Procedure to allow the court to persuade if possible the parties to settle the matter pending before it).

Another point should be stressed. In police investigations, it is often the case that an officer plays a more aggressive attitude towards the suspect, while another one appears to be more indulgent, supportive and understanding; this very old role game is aimed at obtaining effects which well-described in psychodinamics, in the exclusive interest of the pending investigation. The behaviour - in this case towards the judge or the arbitrators - of the actors on the same side in a given dispute is sometimes not very different, as long as it may make sense to establish an appearance of relative dissent in the same party's ranks for persuasive purposes; but while in judicial proceedings it remains essential to protect the credibility and goodwill of one party's counsel with the court, in abitrations, given the more direct exposure of the client, it may make to deflect blame of "inflexibility" (and lack of deference to the panel's views) onto one's lawyer, whenever it is absolutely impossible to deflect it on the other party.

The most relevant strategic difference in arbitration is however the diminished relevance of procedural rules.

Even in the most formal arbitration, where a complete set of provisions are in place concerning steps to be undertaken, formalities, deadlines and so forth, arbitrators are more likely than judges to squarely ignore them.

There are both cultural and practical reasons as to why this is the case, and clearly there are no guarantees that this will happen in your favour; but it is important to be aware that your opponent could effectively get away with what no court in most jurisdictions would allow him to do; in this respect, to rely on, say, the tardiness of a motion to see it automatically denied is very imprudent.

This "anti-formalistic" attitude by many arbitrators ostensibly depends upon their reluctance to base their decisions on other issues than the merits of the dispute before them, but has much more to do that they are fully liable for mistaken procedural decisions which ultimately deny justice to the party concerned.

Nevertheless, many procedural rules are not set forth out of a belief in the arcane power of ritual ceremonies, but in the interest of fundamental fairness; and so their weakening automatically involves the need to be prepared to "surprises" which much seldomer occur in court - and would in such case be a ground for appeal.

Lastly, in arbitrations witnesses neither can be compelled to render their testimony, nor are clearly liable for perjury under many systems of law. Continental lawyers are already used to relying on documentary evidence more than their common-law colleagues, but this further diminishes the importance of oral evidence as compared to the direct inspection of places, objects and documents by the arbitrator.

This in turn makes it crucial that the right experts be appointed by a party, especially when they happen to be colleagues of the arbitrators and when the highly technical nature of the dispute is the reason why the parties entered into an arbitration covenant in the first place. Ideally, such experts should not only be competent in their field, but should also be used to supporting their client's counsel in contentious proceedings. Counsel, in turn, should ideally be at least acquainted with the technical issues at hand. Large contractors are of course in the best possible position to provide for an effective team in this respect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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