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PHASE II of the AIQ

AIQ Phase IAIQ Frequently Asked Questions

PHASE II of the AIQPresentation Version

We want your feedback!

Below is a demonstration version of Phase II of the new draft Arbitrator Intelligence Questionnaire, which is embedded with Genius software to allow you to annotate the AIQ text with your comments and suggestions.

To annotate, simply highlight specific text and click on the “Annotate” bubble that will appear above the highlighted text, or if text is already yellow-highlighted, click on the highlighted text to add your annotations to existing comments.  We will assume all comments are made in your individual capacity, not on behalf of any company or law firm, unless you specifically indicate otherwise.

You may also send comments directly to  catherine.rogers@arbitratorintelligence.org.

This AIQ text will be posted for public comment until 17 March 2017. After that date, we will work to incorporate your feedback and finalize the AIQ in preparation for its formal launch this summer.

 


 

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Welcome!
to the
Arbitrator Intelligence Questionnaire

Arbitrator Intelligence (AI) aims to promote fairness, transparency, and accountability in the arbitrator selection process, and to facilitate increased diversity in arbitrator appointments. As our primary means to that end, this Arbitrator Intelligence Questionnaire (AIQ) seeks to systematically collect information about arbitrators’ case management and decisional history.

Thank you for helping us achieve these goals by completing the AIQ!

For more information about Arbitrator Intelligence, please visit our website at www.arbitratorintelligence.org.

Arbitrator Intelligence, Inc.
Copyright © 2016-2017 Penn State University


 

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Arbitrator Intelligence Questionnaire: Phase II*

 

The questions that follow constitute Phase II of the Arbitrator Intelligence Questionnaire (AIQ). Phase II questions are prefilled with some key information that was input in Phase I.
Phase II should take less than 15 minutes to complete.   

You may save and resume your AIQ at any point.

To see a summary of the responses to Phase I, please click here: 

 

 

If you believe any information from Phase I is inaccurate, you can request correction of that information by clicking here: 

 

 

Thank you for taking part in Phase II of the AIQ!

 

* None of the questions in the AIQ request confidential information, such as the identity of the parties. Your identity as the responder will be maintained as confidential. Unless you indicate otherwise at the end of the AIQ, open-text responses will be only be published as part of composite summaries (and will not be linked to individual AIQ responses) in order to preserve the anonymity of individual responders.

 


 

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 BACKGROUND ABOUT RESPONDER*
*Please note that some general background information about your legal team has already been provided in Phase I of the AIQ.

In approximately how many international arbitrations have you participated (in any capacity)?

If you sit as an arbitrator, in approximately how many international arbitrations have you been appointed?

I do not sit as an arbitrator
Estimated number of appointments:

 

BACKGROUND OF DISPUTE

Based on the parties’ final submissions regarding damages, please estimate the following (excluding amounts for alternative claims if only one recovery was possible):

Amount sought by Claimant in US$:
Amount sought by Respondent in US$:

Overall, which statement best characterizes how you regard the outcome of the case?:

The award was more favorable to me or my client than expected
The award was less favorable to me or my client than expected
The award was roughly what was expected by me or my client

Were any of the arbitrators who signed the award a replacement for a previously appointed arbitrator (please select all that apply)?:

No arbitrators were replaced
Arbitrator A
Arbitrator B
Arbitrator C

At what point was the replacement arbitrator appointed?

Before the initial procedural order
After the initial procedural order
After an award on jurisdiction
After the merits hearing

At what point was the replacement arbitrator appointed?

Before the initial procedural order
After the initial procedural order
After an award on jurisdiction
After the merits hearing

 

CHALLENGES TO ARBITRATORS

Were any arbitrators challenged based on alleged conflicts of interest (select all that apply)?

No, no arbitrators were challenged based on alleged conflicts of interest
Yes, Arbitrator A was challenged
Yes, Arbitrator B was challenged
Yes, Arbitrator C was challenged
Yes, another arbitrator was challenged (please provide full name, including middle initial):

The challenge to Arbitrator B was based on which of the following (please check all that apply)?

Initial disclosures during the selection and appointment process
Subsequent disclosures during the proceedings based on new developments or newly discovered facts
Facts discovered independently by the parties
Circumstances that arose in the arbitral proceedings
Other (please specify):

Which of the following statements best describes the outcome of the challenge to Arbitrator B?

The challenge was rejected as insufficient to warrant removal or disqualification, and the objecting party subsequently waived any future objection
The challenge was rejected as insufficient to warrant removal or disqualification, and the objecting party preserved its objection
The arbitrator voluntarily withdrew or resigned
The arbitrator was removed by the appointing authority, institution, or by other members of the tribunal

 

INTERIM MEASURES

Were interim measures granted by the tribunal?

No, no party requested interim measures
No, the tribunal denied the request for interim measures
Yes, in favor of the Claimant
Yes, in favor of the Respondent
Other (please specify):

What was the primary basis for the grant?

Preservation of assets
Security for costs
Preservation of evidence
Protection of intellectual property
Protection of confidential information
Other (please specify):

 

JURISDICTIONAL CHALLENGES

Did any party challenge the tribunal’s jurisdiction over the dispute?

Yes
No

What was the nature of the jurisdictional challenge (select all that apply)?

Pathological or invalid arbitration clause
Failure of a condition precedent
Application of the arbitration agreement to a non-signatory
Dispute outside the scope of the arbitration agreement
Dispute involves matters not capable of settlement by arbitration
Other (please specify):

On the substance of the jurisdictional challenge, the tribunal ruled that:

Arbitral jurisdiction did not exist
Arbitral jurisdiction existed over the entire dispute
Arbitral jurisdiction existed over part of the dispute

Based on the tribunal’s reasoning in its jurisdictional ruling, would you predict:

The award is likely to withstand any jurisdictional challenges in set aside or enforcement proceedings
The award is unlikely to withstand any jurisdictional challenges in set aside or enforcement proceedings
A court’s ruling on any jurisdictional challenges to the award is difficult to predict
No opinion

 

TRIBUNAL SECRETARY

Was a tribunal secretary appointed in the case?

Yes, by the tribunal
Yes, by the institution
No

Please provide the name of tribunal secretary (optional):

Which of the following is true is about appointment of the tribunal secretary (please check all that apply)?

The tribunal solicited party input before appointing the secretary
The tribunal announced the appointment of the secretary early in the proceedings
The tribunal explained clearly the role of the secretary in the proceedings and in drafting the award
The tribunal secretary appeared to contribute to the orderly functioning of the proceedings
The tribunal secretary did not appear to serve a significant role during the proceedings
The tribunal secretary engaged in functions that I/my client believe were inappropriate

Please provide any additional comments regarding the role and function of the tribunal secretary (optional):

CASE MANAGEMENT &
PROCEDURAL RULINGS

In managing the proceedings, which of the following were requested by the parties and/or ordered by the tribunal (please select all that apply)?

Requested by parties Ordered by tribunal
Bifurcation of proceedings
Early resolution of particular issues
Early-neutral evaluation of the parties’ cases
Early identification by parties of issues, arguments, and documents on which they intended to rely
Referral of the parties to mediation
Other significant case management orders (please describe):

Did the tribunal attempt to mediate or settle the dispute itself?

Yes
No

In light of your or your client’s case strategy, which of the following do you believe are true (please check all that apply)?

The tribunal’s procedural rulings generally promoted fairness in the proceedings
The tribunal’s procedural rulings generally undermined the fairness of the proceedings
The tribunal’s procedural rulings promoted efficiency in the proceedings
The tribunal’s procedural rulings undermined the efficiency of the proceedings

Please provide any additional comments on the tribunal’s case management and procedural rulings (optional):

INFORMATION EXCHANGE

Was document production ordered by the tribunal?

Yes, both parties were ordered to produce documents
Yes, only the Claimant was ordered to produce documents
Yes, only the Respondent was ordered to produce documents
No, the tribunal denied all requests for document production
No, the tribunal was not asked to rule on any requests for document production

Which of the following describes the document production ordered by the tribunal (please select all that apply)?*

*Descriptions of document categories are based on art. 3(3) of the IBA Rules on the Taking of Evidence in International Arbitration (2010)

Production was ordered in accordance with the agreement of the parties
Production was ordered of a limited number of individually identified documents
Production was ordered of “narrow and specific requested category[ies] of Documents that are reasonably believed to exist”
Production was ordered of documents maintained in electronic form based on identification of “specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner”
Production was ordered of broad categories of documents based on general statements of materiality and relevance

Document production request was denied because:

The documents were not specifically identified
The document request was deemed to be too broad or likely to require production of too many documents
The documents were deemed not relevant or not material
The document request was deemed untimely
The tribunal denied document production without explanation

In light of your or your client’s case strategy, do you believe that the documents ordered to be produced were:

Much too extensive
Somewhat too extensive
Just right
Somewhat too limited
Much too limited

Please provide any additional comments on information exchange ordered by the tribunal (optional):

CONDUCT OF HEARINGS

Did the arbitration involve oral hearings and, if so, approximately how long were the hearings?

No, there were no oral hearings
Yes, there were oral hearings (please indicate number of hearing days):

In your opinion, which of the following is true regarding the length of the hearings (please select all that apply)?

Appropriate for the case
Inadequate because the parties requested too little time
Inadequate because the tribunal determined time requested was not necessary
Inadequate because the tribunal was not able to schedule more time
Inadequate because parties or counsel were not able to schedule more time
Inadequate because hearing time was not used efficiently
Excessive because hearing time was not used efficiently
Other (please specify):

Please provide any additional comments on the conduct of the hearings (optional):

In your opinion, did the opposing party or counsel engage in conduct during the arbitration that you consider improper, unethical, or intentionally disruptive?

Yes
No

Please provide a brief description of the conduct identified above (optional). Do not indicate the names of any attorneys.

Which of the following best describes the tribunal’s response to the allegedly objectionable conduct (please check all that apply)?

The tribunal declined to address directly allegations of improper conduct
The tribunal issued general admonitions to dissuade further instances of allegedly improper conduct
The tribunal made specific findings regarding the allegedly improper conduct
The tribunal issued effective procedural rulings to prevent continuation of allegedly improper conduct
The tribunal expressly referenced allegedly improper conduct in making a final determination on the merits or allocation of costs
Other (please specify):

Other comments regarding the tribunal’s response to the allegedly objectionable conduct (optional):

QUESTIONS FROM ARBITRATORS

Which of the following describe the questions posed by Arbitrator A during the hearing(s) (please select all that apply)?

Questions demonstrated familiarity with the record
Questions demonstrated a good understanding of the core issues in the case
Questions helped clarify factual or legal issues
Questions were always fair and respectful
Questions were too numerous
Questions were poorly articulated, confusing, or otherwise distracted from the parties’ presentations
Questions were too few
I have no opinion

Which of the following describe the questions posed by Arbitrator B during the hearing(s) (please select all that apply)?

Questions demonstrated familiarity with the record
Questions demonstrated a good understanding of the core issues in the case
Questions helped clarify factual or legal issues
Questions were always fair and respectful
Questions were too numerous
Questions were poorly articulated, confusing, or otherwise distracted from the parties’ presentations
Questions were too few
I have no opinion

Which of the following describe the questions posed by Arbitrator C during the hearing(s) (please select all that apply)?

Questions demonstrated familiarity with the record
Questions demonstrated a good understanding of the core issues in the case
Questions helped clarify factual or legal issues
Questions were always fair and respectful
Questions were too numerous
Questions were poorly articulated, confusing, or otherwise distracted from the parties’ presentations
Questions were too few
I have no opinion

 

THE AWARD

The award was rendered 127 days after close of the arbitral proceedings.  To the best of your knowledge, could any of the following events or circumstances have delayed the rendering of the award (please check all that apply)?

Force majeure
Unavailability of an arbitrator (please identify individual arbitrator, if you know):
Complexity of issues in the case
Substantive disagreements among the arbitrators
Post-hearing developments or motions by parties
Other (please specify):

What substantive law(s) applied to the dispute at issue in the arbitration?

Did the dispute involve any of the following issues (please select all that apply)?

Issues of contract interpretation
Issues of statutory interpretation
Issues of treaty interpretation

In your opinion, which of the following describe the tribunal’s contract interpretation (please select all that apply):

Interpretation reflected a plain meaning analysis of the specific words of the contract
Interpretation considered the negotiation and drafting history of the contract
Interpretation relied primarily on precedents in relevant cases
Interpretation reflected a flexible interpretation to specific words of the contract in order to give the contract its common sense or commercial sense meaning
Interpretation reflected a flexible interpretation of specific words of the contract in order to achieve fairness and equity in the outcome of the dispute
Other (please specify):

In your opinion, which of the following describe the tribunal’s statutory interpretation (please select all that apply)?

Interpretation reflected a plain meaning analysis of the specific words of the statute
Interpretation considered the drafting or legislative history of the statute
Interpretation relied primarily on precedents in related cases
Interpretation reflected a flexible interpretation to the specific words of the statute in order to give the statute its common sense meaning
Interpretation reflected a flexible interpretation of the specific words of the statute in order to achieve fairness and equity in the outcome of the dispute
Other (please specify):

In your opinion, which of the following describe the tribunal’s treaty interpretation (please select all that apply)?

Interpretation reflected a plain meaning analysis of the specific words of the treaty
Interpretation considered the drafting or legislative history of the treaty
Interpretation relied primarily on precedents in relevant cases
Interpretation reflected a flexible interpretation of specific words in the treaty in order to give the treaty its common sense meaning
Interpretation reflected a flexible interpretation of specific words of the treaty in order to achieve fairness and equity in the outcome of the dispute
Other (please specify):

Which of the following describe your overall reaction to the award (please check all that apply)?

The award presented a balanced evaluation of the parties’ arguments
The award was well reasoned
The award was persuasively written
The final disposition was unexpected
The award failed to address all issues raised by the parties
The award contained insufficient reasoning to justify the outcome
The award contained typos or clerical errors

Please provide any additional comments regarding the reasoning of the Award (optional):

CONCLUDING OBSERVATIONS

I would feel comfortable having Arbitrator A as the sole arbitrator in a future unrelated case.

Strongly Disagree
Disagree
Neither agree nor disagree
Agree
Strongly Agree

I would feel comfortable having Arbitrator B as the sole arbitrator in a future unrelated case.

Strongly Disagree
Disagree
Neither agree nor disagree
Agree
Strongly Agree

I would feel comfortable having Arbitrator C as the sole arbitrator in a future unrelated case.

Strongly Disagree
Disagree
Neither agree nor disagree
Agree
Strongly Agree

If there are any special circumstances or anomalies in this case that affect your answers to the questions above, please explain:

 

Your confidentiality is important to us. Your identity will be maintained as confidential and open-text comments will be published primarily in collective summaries with others’ comments.

 

You have reached the end of Phase II of the AIQ.
Please note that once you click “Submit,” you will not be able to return to the questions. If you wish to make any changes or corrections after submitting the AIQ, please contact us directly at AIQ@arbitratorintelligence.org.
Thank you for your participation!