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Drafting the Award

Friday, October 10, 2025 9:10 AM | Anonymous
7 Reasons Older Adults Keep Working after Retirement

When may an arbitrator start drafting the award?  If a tribunal, may the Chair start drafting the award before consulting with the wings?

What are your thoughts?

Comments

  • Friday, October 10, 2025 10:45 AM | Steven Skulnik
    Early. Yes
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    • Friday, October 10, 2025 10:55 AM | Peter Rundle
      Agreed. Assemble the bones of the award early. Organize and build as the hearing proceeds. Obviously, the critical parts of the award should await the close of the hearing and at least initial tribunal deliberations.
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      • Friday, October 10, 2025 11:12 AM | Henry Parr
        agreed
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  • Friday, October 10, 2025 10:50 AM | Jim Daniels International arbitrator in Mining, shipbuilding and Oil & Gas.
    I always have a draft award available one or two days before the end of hearings. This is made available to the Chair and the other member of the Tribunal immediately at the end of the submissions/hearings on the basis that it is easier to change than to create. This draft gives the Tribunal a head start in finalising the award. Thus far I have never issued an award later than 42 days from the end of submissions/hearings and some of my arbitrations have had over 100 hearing days for $ billions.
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  • Friday, October 10, 2025 10:52 AM | Caryl Ladhley
    The Tribunal ought to determine the way forward in that regard. It is good to start early as matters, especially factual matters, evolve. This helps to ensure that the importance of certain information is not diminished
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  • Friday, October 10, 2025 10:56 AM | Raoul East Drapeau
    If the Chair is clearly the most experienced person on the panel, it may make sense for them draft the award, providing that there is time for the others to weigh in before it is finalized. On the other hand, if they all discuss their views in person before anything is drafted may give minority views a better chance of being incorporated.
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    • Friday, October 10, 2025 11:39 AM | Charles Atwell
      I like situation, Where the panel has discussions for during the hearing, while keeping an open mind until thr Final Award. Using drafts during the process is often helpful, making sure the Chair gains input from the full Panel
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  • Friday, October 10, 2025 11:03 AM | Anonymous
    Agree that organizing the facts for the Award early and during the hearing is best, but I usually reserve my full analysis until near the end or after the hearing is concluded. I do highlight and make note of points that I find significant during the course of the hearing.
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  • Friday, October 10, 2025 11:04 AM | Robert L. Arrington
    There are no hard and fast rules. One thing to bear in mind is that the parties may see the arbitrator's invoices, and if the drafting process begins before the hearing, or while it is in progress, someone may feel he or she has not been heard or judged fairly.
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    • Tuesday, October 21, 2025 8:02 PM | Carol Davis Zucker
      I agree that a party's having seen the arbitrator having begun drafting the award before the close of the hearing gives an impression that the party has not been heard. Having said that, In my notes made before and during the hearing, I summarize the facts as already entered and the issues of fact I need to have answered during the hearing (and that, sometimes, I need to ask if the parties have not introduced evidence).
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  • Friday, October 10, 2025 11:04 AM | Thomas P. Valenti
    As a solo, it is helpul to start a draft that memorailizes procedural issues addressed, the IPHC order and similar process rules, but substantive matters shouls wait. In tribunal cases, we may begin a draft for our eyes only, butmust be more cautious to make sure we are not influencing others, or even pre-judging without hearing the evidence. According to AAA best practices and ethical guidance:

    Award deliberations must be collegial, and all tribunal members must be given a reasonable opportunity to contribute to the reasoning and decision.

    Any early unilateral drafting risks violating the collective deliberation obligation and may provide grounds for challenge or annulment if due process is affected.
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  • Friday, October 10, 2025 11:14 AM | Tuneen Chisolm, Esq., M.S.Ch.E.
    As a solo, I wait until after the hearing concludes to begin drafting the award. Anything I could prepare in advance of hearing the parties arguments and evidence takes minimal time to complete, and I like to give full consideration to everything presented prior to reaching final conclusions. That said, my notes capture interim thoughts. As a tribunal, I think it’s good practice for the panel to discuss before award drafting begins for reasons colleagues have already mentioned.
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    • Friday, October 10, 2025 1:31 PM | Lisa Renee Pomerantz
      I agree. I focus on keeping an open mind and making sure I understand the parties' contentions, arguments and evidence. If one starts drafting an award before the record is complete, there is a risk of confirmation bias coming into play, where the arbitrator is not open to considering evidence or arguments that are contrary to her preliminary conclusions.
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    • Thursday, October 16, 2025 10:41 AM | Jack Neal
      I agree.
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    • Thursday, October 16, 2025 3:07 PM | Gerald Baldwin
      Agreed. Of course, one considers which direction they think the award should go but never draft before the evidence is completed.
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  • Friday, October 10, 2025 11:45 AM | Anthony Zebouni
    The chair may do almost anything. Where there is a complex case there could be a lot of facts that everyone agrees upon and for the chair to begin with at least the introductory portion of an award that should be fine. But for the chair to begin draft of the final award, without having discussed with the wings, is problematic and could raise otherwise avoidable friction within the panel. As the chair I always involve the wings of what I/we are or should be doing.
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  • Friday, October 10, 2025 12:54 PM | Anonymous
    At the end of each day of hearing, general key facts are added to the award indicating whether they are contested or agreed upon by the parties. The conclusion does not come in until after the hearing closes. Circulating the draft to the panel allows the panel to weigh in and discussion to be had on where the outcome should fall.
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  • Friday, October 10, 2025 12:59 PM | Hon. Michael S. Jordan
    I start a frame work of orders or awards as soon as I can and add to it as events take place such as listing motions, summarizing or repeating content of memos and listing exhibits with dates, and the same with responses and replies. I have included a background as to when I was invited and accepted and the identify the applicable rules and state or federal law and jurisdiction that applies. I indicate if I am sole arbitrator or on a panel of three and the method or manner of selection. I identify if and when oral arguments were allowed and if questions were asked and answered and who participated. In summary, there is much to do as events occur to memorialize contemporaneously. If there are many preliminary events before the award or actual hearing date(s) I not only submit a deposit request for the parties to transmit to AAA after the preliminary hearing, I will invoice time as we go so the parties are aware that their motions and hearing are incurring expenses. No decisions are made until the record is closed and full deliberation of the panel takes place after the parties' input through counsel.
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  • Friday, October 10, 2025 1:53 PM | Denise Presley
    I start drafting the Introduction (arbitration agreement, claims/ answer), Procedure (filings, motions, hearings, etc.) and Facts/ Findings soon after the evidentiary hearing concludes. If I'm Chairing a panel, I share this with the wings for their input. I also ask them to weigh-in on the outcome before I draft the Analysis and Conclusion, which I also circulate for their review and comments.
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  • Friday, October 10, 2025 2:06 PM | GARY W JAVORE
    I typically start framing reasoned awards in advance of the hearing, setting out the causes of action and defenses. I leave open the analysis and actual award of damages, until after the hearing and any post-arbitration briefing. That helps me focus on the issues more clearly.
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  • Friday, October 10, 2025 5:13 PM | Jack Marshall KC
    I agree with most of the commentators. I start with a draft of the introduction, governing law, procedural applications and orders, positions of the parties as set out in their pleadings and (sometimes, if it is clear as in ICC arbitrations) a list of issues. I provide the drafts to co-arbitrators as we proceed. I don't draft analysis until after argument and detailed discussion with colleagues to ensue we agree on the approach to take . We may share drafting responsibility among members of the Tribunal.
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  • Friday, October 10, 2025 7:01 PM | Nasri H Barakat
    During the course of an arbitration the arbitrator, whether a sole arbitrator or the chair will probably make notes of points, issues, documents and testimonies that may be used in the final drafting of the award. However, the award itself, or any part thereof must be left until after the conclusion of the deliberations of the panel and the formal closing of the evidentiary hearing. Any earlier drafting is inappropriate and must not occur especially in a panel or neutrals. Any notes, documents, testimonies or other conclusions reached by a member of the panel or the chair must remain private to the panel member or the chair until after the close of the hearing and the conclusion of the deliberations.
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  • Sunday, October 12, 2025 11:01 AM | Larry Weinstein
    An arbitrator may start drafting the award as early as he or she chooses. While the arbitrator clearly should avoid reaching a decision on the merits before all the evidence is in and any post-hearing briefing is submitted, an early start to drafting uncontroverted parts of the award can help insure the prompt completion of the final version. In a tribunal case, there is no rule preventing the chair from beginning the draft award before consulting the wings. But in my experience, panel collegiality and cohesiveness are best achieved by early and frequent communication among the tribunal members. As a matter of collegiality, I wouldn't begin drafting even the procedural aspects of the award without first consulting the wings
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    • Sunday, October 12, 2025 9:26 PM | The Honorable Neil Brown KC
      A good idea to start early drafting, even if only as an aide memoire , with no commitment of course at that early stage. I just think it is a good means of saving time and also registering significant facts and impressions that arise as the case proceeds which can be reflected on later, with of course the proviso that none of it is binding and it will all be shared with all members of the Panel for their final deliberation.
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