The IBA Arb40 Subcommittee launched a competition to compile and publish poignant stories from this period, forming a distinctive compendium of shared experiences. Exploring the depths of the international arbitration community, the IBA Arb40 Common Heritage of International Arbitration Competition for the Most Meaningful Personal Stories unfolds a tapestry of diverse narratives.
Spanning the globe, these stories capture the human side of international arbitration, showcasing triumphs, challenges, and the interconnectedness that defines our professional journey. Each article in this collection offers a unique lens into our Common Heritage of International Arbitration, underscoring the significance of camaraderie, mentorship, and shared experiences within our global community.
The following article emerged as an overall winner of the competition.
In the mid-90s, the internet and email were scarce, especially in law firms. Back then, parties and tribunals communicated via physical correspondence and occasionally via fax. As I have always supported technological innovation and its implementation in legal practice, I made arrangements so that our law firm had an email account. Instead of having individual accounts for each member of the firm, we just had a single account to be used firm-wide, managed by one of the firm’s secretaries. I have never considered myself a “techie,” so even though I was very enthusiastic about how email could expedite communication, I had little intention of learning how to use it alone. In hindsight, I should’ve learned from the beginning.
After witnessing how effectively email could handle communications, I decided to propose it as the ordinary means of communication with the parties in one of the first cases where I sat as President of the Tribunal. That case was particularly important to me. Most of my legal practice at the time focused on transactional work, but I was eager to build a name for myself in the arbitration arena. Additionally, my co-arbitrators were much more senior practitioners with a world-renowned reputation in international arbitration. I deeply admired them and wanted to impress them. In short, the stakes were high, and I wanted everything to be as neat and organized as possible. To keep good order, the secretary in charge of the email account created two mailing lists, one including the parties and the Tribunal and the other with just the co-arbitrators.
Everything worked smoothly up until shortly after the Tribunal’s deliberations. During the deliberation, I would draft a short memorandum with the key takeaways of the deliberations and, most importantly, the decision we reached. I prepared the memo accordingly and gave it to the secretary that handled the firm’s email account to circulate it to the arbitrators—or at least I thought so.
It is hard to overstate my shock when I realized that she sent the memorandum to the mailing list with all the parties instead of only sending it to the co-arbitrators. So now the parties knew the Tribunal’s decision even though they had not filed their post-hearing memorials yet! It was a complete disaster. I am still unsure if my instructions were unclear or if the mistake was hers. The only thing sure at that point was that my arbitration career was over.
I couldn’t sleep that night. Even today, almost thirty years later, I occasionally have nightmares about that mistake. However, on that sleepless night, I decided that the only thing to do was to apologize to the parties for the mistake and resign as their arbitrator so that someone else could decide the case. The following day I called my co-arbitrators to inform them of my decision and, frankly, to mourn my now-dead career in arbitration. Much to my surprise, these two senior and knowledgeable arbitrators advised me not to resign as arbitrator and not to apologize to the parties for this massive mistake. Instead, their advice was to do nothing.
After long consideration, I decided to listen and defer to their experience: I did nothing. Nothing happened for a while, yet the parties’ silence haunted me. Those were the most stressful days of my career as an arbitrator, and my mind kept coming back to the idea of apologizing and resigning. However, the parties’ silence couldn’t last forever, and we finally heard from them one day: they had settled the dispute! I was as ecstatic as I was confused.
Honestly, I still don’t know what the parties thought or why they settled. I can only speculate that they thought I intentionally sent the memo as a bold mediation technique. Unfortunately, I will never know, so the only thing I can do is to draw the lessons I learned from that awful experience:
- Technology is a tool but also a weapon. If you don’t know how to use it, it will end up hurting you. For example, had I diligently mastered the use of email, I could have avoided this problem.
- Never rush to act; listen first, especially if the advice comes from those with more experience. If I had rushed to apologize and resign before listening to the wise words of my experienced co-arbtirators, word of my mistake would have spread like wildfire, and you wouldn’t be reading this in an arbitration forum.
ABOUT THE AUTHOR
Claus von Wobeser is a Founding Partner and co-chair of Von Wobeser y Sierra’s Arbitration Practice. With over 40 years of experience in dispute resolution, Claus has acted in more than 250 commercial and investment arbitrations as arbitrator, counsel and expert witness on legal issues. He is a member of the ICCA Governing Board, President of the Latin American Arbitration Association (ALARB), President of the Mexican Chapter of the ICC, among others. Over his career, he has held many other positions, including Member of the ICC International Court of Arbitration (1982-1988); President of the Arbitration Commission of ICC Mexico (1987-2016); Chair of the Barra Mexicana de Abogados (2001-2002); Co-Chair of the IBA Arbitration Committee (2005-2006); Vice-president of the ICC International Court of Arbitration (2003-2015); Arbitrator of the panel appointed by the President of the World Bank and the Administrative Counsel of ICSID; Member of the LCIA Court (2016-2021). Claus received his JD from the Escuela Libre de Derecho and his PhD from the Université de Droit, d’Economie et de Sciences Sociales, (Paris II).
This article was first published on the website of the Arbitration Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
Available at: https://www.ibanet.org/Arb40-Competition