Avoid arbitration express train urges ICC Court President

Ms Salomon addressed the “magnetic pull” of international arbitration during the second day of Tel Aviv Arbitration Week, which returns for its third edition this week after a one- year hiatus.

Addressing a unique gathering of international and Israeli professionals leading the international arbitration field, Ms Salomon drew attention to biases the community tends to fall into. “When we open our toolbox, we have one key tool to resolve cross-border disputes: international arbitration,” she stated.

Drawing parallels with Maslow’s Hammer, namely the cognitive bias that involves an over-reliance on a familiar tool, Ms Salomon said: “International arbitration may be the best tool for the job, but if we stay conscious of our tool bias, we must dig deep in our toolbox, and consider what other tools may be required.”

Among these biases, Ms Salomon singled out the process bias, or the “we’ve always done it this way” bias warning “This is Maslow’s Hammer at work.”

Speaking after a panel on the lessons and challenges of the Covid-19 crisis, Ms Salomon used the example of virtual hearings, which multiplied during the pandemic, as “the clearest example of how we all adapted to using different tools.”

In addition to this renewed sense of flexibility, Ms Salomon also stressed the importance for the international arbitration community to think of innovative solutions and processes for future disputes. “Technology is going to change the way we resolve disputes,” she said. “As a community, we must be open to thinking about how to improve; we have to stop Maslow’s Hammer, cast off our blinders, and embrace new solutions for new types of disputes.”

Ms Salomon went on to address the tendency of choosing arbitration over courts. “We like to stay away from the courts,” she stated. “But the question we have to ask is whether staying out of the courts is the best outcome for our clients or whether we let our bias for arbitration over other tools creep in.”

Ms Salomon said that arbitration lawyers must not shy away from using national courts to achieve their client’s objectives saying: “When mapping out a legal strategy, we cannot let our tool bias create blinders to national courts, where they may be most effective.”

And this goes for other ADR tools as well. “These tools can help parties get off the express train toward a final award, but Maslow’s Hammer and the magnetic pull of international arbitration may mean that we are not giving these other dispute resolution tools sufficient consideration,” Ms Salomon said.

Ms Salomon concluded with criticism of the bias of stakeholder engagement. “We must consider who should be involved in determining which tools should be used,” she said.

Drawing from the ICC Guide for In-House Counsel on the Effective Management of Arbitration, the ICC Court President said the best way to do so is to engage the parties themselves more deeply in the arbitral process by encouraging in-house counsel and business representatives to participate in the case management conferences.

“To tackle our stakeholder bias, we need to stop Maslow’s Hammer from hitting us where it hurts,” concluded Ms Salomon. “We must be focused on enabling the parties to engage to assure that their expectations and the arbitral process are better aligned.”

Read ICC International Court of Arbitration President Claudia Salomon’s full speech at Tel Aviv Arbitration Week.

At the heart of the Tel Aviv Arbitration Week, ICC International Court of Arbitration will hold an interactive in-person ‘Meet the Court’ session, on Tuesday 15 March. It will feature experts in the field as well as representatives from the ICC Court, all on hand to engage with professionals wanting to keep pace with the latest ICC arbitral developments. You can register for the session here.