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Reasoned Award In International Arbitration

Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards.[1] However, very little information exists as to what constitutes a reasoned award in the international commercial context[2] or how to write such an award.[3]

This lacuna is extremely problematic given the ever-in- creasing number of international commercial arbitrations that arise every year[4] and the significant individual and societal costs that can result from a badly written award.[5] Indeed, much of the current debate about the need for appellate arbitration stems from controversies generated by awards that fail to provide reasoning that is sufficiently persuasive to the losing party.[6]

Research Methodology
Statement of Problem:

The primary focus of this project is to analyses various process-oriented and structural issues relating to reasoned awards in international commercial arbitration so as to improve the practical and theoretical understanding of international awards. The project will consider various factors from both the common law and civil law perspectives so as to take into account the blended nature of international commercial arbitration.

Objectives:
  1. To analyze the constituents of a reasoned award
  2. To understand the necessity and usefulness of reasoned awards in International Law arena
  3. To study the issues relating to the process and framework of writing awards.
  4. To look into the various elements of the award.
Hypothesis:
Writing a reasoned award by the arbitrator is likely give an impetus to arbitration as a preferred mode of resolving cross – border business disputes.

Research Questions:
  • What constitutes a reasoned award in International Commercial Arbitration?
  • What is the relevance of reasoned awards in International Arbitration?

Research Methodology:
The present research work is a Descriptive and Analytical Research; and
  • It is Doctrinal in nature and
  • It is a Mono-disciplinary Legal Research.
  • The research design is Exploratory and Descriptive.
  • The sources of information are both Secondary (Articles, Books, Journals, Websites etc.) and Primary (Statutes, International Instruments, and Government Statistics and reports etc.)
Review of Literature:
Here are some literature reviews that will illustrate that what is the approach in this research and what are the materials which have been searched for carrying on this project work.
  • International Trade Law 6th Edition by Indira Carr (Author), Peter Stone (Author)
  • Transnational Business Problems, 5th (University Casebook Series)
     

Difficulties in writing a Reasoned Arbitral Award

Helping arbitrators write awards that are clear, concise and coherent is vitally important if international commercial arbitration is to retain its place as the preferred means of resolving cross-border business disputes.[7] However, that task is not as easy as it sounds.

First, the relative scarcity of published awards means that novice arbitrators have very little to look at in the way of models.[8] Furthermore, many of the materials that are publicly available are typically offered only in excerpted, digested or translated form and may not be suitable for use as prototypes.[9]While arbitrators could seek guidance from other types of advocates and arbitrators, which may affect the quality and nature of international award writing reasoned rulings that are more widely available (such as awards generated in investment arbitration[10] or reasoned decisions from national courts[11]), not all of those procedures are truly analogous to international commercial arbitration.[12]

Second, new arbitrators typically come to their duties with very little in the way of formal training.[13] Indeed, the underlying assumption is that anyone appointed to an ad hoc tribunal or to an arbitral roster is already competent to serve as an arbitrator as a result of that person’s extensive experience as counsel[14]Interestingly, this reliance on selection proce- dures rather than on training is similar to the educational model adopted by the judicial systems of many common law countries.[15]

In those jurisdictions, judges are selected from a pool of experienced lawyers and placed on the bench with very little specialized training, based on the assumption that anyone who has become a top litigator is naturally competent to take on the role of a judge.[16]

However, research into judicial education and performance has demonstrated that the skills associated with serving as an adjudicator are significantly different than those associated with acting as an advocate.[17] The transition to the bench is particularly difficult with respect to the task of writing fully reasoned rulings, with many new judges finding the “move from advocacy to decision, from marshalling and presenting evidence to fact-finding and synthesizing,” to be extremely challenging.[18]

As a result, it appears inaccurate to claim, as some authorities have, that international arbitrators can gain the necessary skillset sim- ply through “observation, exposure, participation and experience.”[19]

Problems in the current system
This is not to say that arbitrators are entirely without resources, since new and experienced arbitrators can seek out courses in award writing from any one of a variety of institutions specializing in international commercial arbitration.[20] However, the current approach is problematic in several ways.[21]

First, it is not clear how many new or experienced arbitrators capitalize on the opportunity to study award writing.[22] Although some organizations require their members to undertake continuing education in arbitration, that requirement is usually minimal (one one-hour course per year may suffice) and does not mandate instruction in any particular subject.

Given the various pressures facing both new and experienced arbitrators,[23] it is perhaps understandable that arbitrators overlook courses in writing, particularly since many arbitrators may feel that after decades of work as practicing lawyers, they are already competent writers. How- ever, many people do not appreciate the extent to which award writing differs from other forms of communication.[24] most difficult thing about coming on to the Court was learning to write

Arbitrators who have worked previously as judges may be particularly disinclined to take courses in award writing, based on the belief that they already know how to write reasoned decisions.[25] However, arbitral awards are in many ways different than judicial opinions, and skills learned in the judicial context may not translate into the arbitral setting.[26]
Current practice regarding continuing education on award writing suf- fers from other problems as well.

For example, most arbitral institutions only ask established arbitrators to act as faculty, presumably based on the belief that arbitrators are the only ones who have the skills and insights necessary to teach other arbitrators.[27] Not only can this practice create a number of self-reinforcing behaviors within the field as faculty members emphasize issues that they consider to be important with little input from external or empirical sources,[28] but most arbitrators are not especially qualified to teach writing, despite their practical experience in arbitration. As a result, many award writing seminars end up focusing on personal anecdotes, basic writing techniques or logistical concerns that do not address the deeper challenge of producing fully reasoned awards.

Many of these educational practices mirror those traditionally seen in common law forms of judicial education.[29] Although those similarities might lead some observers to conclude that the existing approach to arbitrator education is sufficient, commentators have sharply criticized the common law judicial education model.[30] This phenomenon, when com- bined with the various concerns enunciated within the arbitral community about the qualifications of international commercial arbitrators, suggests that the existing approach to arbitrator education needs to be changed, particularly with respect to the issue of award writing.[31]

Indeed, these issues suggest there is a critical need for more rigorous analysis regarding the reasoned award requirement in international commercial arbitration.[32] This Article attempts to meet that need by scrutinizing the elements of a reasoned award in international commercial arbitration and providing both experienced and novice arbitrators with a structured and content-based approach to writing such awards.[33] Methodologically, the discussion draws heavily on the large body of material involving the use and drafting of reasoned judicial rulings in both common law and civil law jurisdictions.[34] However, the analysis only draws those analogies that are appropriate, since arbitration and litigation are not identical.[35]

What is a Reasoned Award

The first matter to consider involves the question of what constitutes a reasoned award in international commercial arbitration. Most institutional rules applicable to international commercial arbitration simply indicate that an award should include “reasons,” at least as a default position, with- out any further explanation as to what is entailed by that term.[36]

To some extent, the lack of detail regarding the shape and content of a reasoned award may be the result of the difficulties inherent in describing a reasoned award in the abstract. Indeed, it is often easier to identify specific examples of fully reasoned decisions than to provide a categorical definition of what constitutes adequate legal reasoning.[37] Nevertheless, various authorities have attempted to provide a more detailed explanation of what constitutes a reasoned award.[38] Thus, a reasoned ruling may be described as one that includes “findings of fact and conclusions of law based upon the evidence as a whole . . . [and that] clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached.”[39]

As useful as this definition may seem, it only goes so far, since finding “the appropriate methodology for distinguishing questions of fact from questions of law [is], to say the least, elusive.”[40] Indeed, “the practical truth [is] that the decision to label an issue a ‘question of law,’ a ‘question of fact,’ or a ‘mixed question of law and fact’ is sometimes as much a matter of allocation as it is of analysis.”[41]

These kinds of practical difficulties suggest that the best way to define a reasoned award may be through a functional analysis.[42] That sort of approach is particularly useful in this setting because a functional inquiry not only overcomes various differences that exist between common law and civil law legal reasoning (an important feature given that international commercial arbitration consciously blends elements from both the com- mon law and civil law legal traditions), it also takes into account the various ways that arbitral awards differ from reasoned rulings generated by a court.

Importance Of Reasoned Awards in International Commercial Arbitration

Some people appear to believe that reasoned rulings are an exclusive feature of the common law legal tradition.[43] However, civil law countries have long considered reasoned legal opinions to be essential to procedural justice, even though the shape of a civil law judicial opinion can differ significantly from what is standard in common law jurisdictions.[44] For example, reasoned decisions in France are usually quite short and “formulated in a single sentence, including several ‘whereases’ (attendus).”[45]

However, other civil law jurisdictions, most notably Germany, often generate reasoned opinions that are remarkable for their “length and thoroughness.”[46]

Although French courts consider very brief, highly deductive opinions to be sufficiently reasoned as a matter of procedural fairness,[47] this particular structural approach does not appear to have been routinely adopted in international commercial arbitration.[48] Instead, the concept of a rea- soned award in international commercial arbitration appears to more closely resemble the longer, more discursive models seen in the common law and in civil law jurisdictions like Germany.[49] Thus, most awards in international commercial arbitration currently run dozens of pages in length.[50]

When considering why reasoned awards might be useful or necessary in international commercial arbitration, it is helpful to distinguish structural rationales for reasoned rulings from non-structural rationales. This approach not only overcomes matters relating to the common law-civil law divide, it also helps identify rationales that are exclusively associated with judicial rulings and that are therefore inapplicable in the arbitral context.[51]

  1. Structural Rationales for Reasoned Awards

    Perhaps the most well-known structural rationale supporting the use of reasoned rulings comes from the common law legal tradition, which requires “subsequent courts to adhere to the legal conclusions established in earlier judgments rendered by courts whose decisions are binding upon the ruling court.”[52] Reasoned decisions are used in common law jurisdictions to provide “the necessary reasoning (the ‘ratio decidendi’) for courts bound to adhere to precedent under stare decisis.”[53] Because the principle of stare decisis does not technically apply in international commercial arbitration, this rationale does not appear applicable to the arbitral forum, strictly speaking.[54]

    However, arbitral awards are considered very important forms of per- suasive authority and have been said to reflect a type of “soft precedent” in certain types of international disputes (most notably those involving in- vestment and sports arbitration) and in certain types of matters (most notably those involving arbitral procedure).[55]

    The willingness of international arbitrators to consider and in many cases follow the reasoning reflected in previous awards can be traced directly to the need for predictability and consistency in international commercial arbitration.[56] Interestingly, the approach used in international commercial arbitration is similar to that found in many civil law countries, where judges routinely follow the decisions of higher level courts, even if the principle of precedent does not apply, so as to promote predictability and consistency.[57] Thus, reasoned awards may be said to be useful for this first type of structural purpose, even if they are not strictly necessary.

    Reasoned rulings serve other structural purposes. For example, rea- soned decisions are used in both common law and civil law jurisdictions to give context to lower court decisions and thereby help appellate courts determine whether and to what extent to uphold the judgment below.[58]

    Initially, this rationale might also appear inapplicable to international commercial arbitration, since most jurisdictions do not allow courts to re- view the merits of an arbitral award.[59] However, some jurisdictions, most notably England, do allow judicial appeals of international awards, which could be seen as providing arbitrators with a strong incentive to render well-written reasoned awards in arbitrations seated in England.

    International awards may also be subject to other types of post-award scrutiny, both inside and outside of England.[60] One type of post-award judicial procedure involves a challenge to enforcement, either at the seat of arbitration or in a foreign jurisdiction. Although these types of actions usually focus on procedural matters, the likelihood of a challenge being brought in the first place may be affected by the quality of the reasoning found in the underlying award. For example, a well-written and fully reasoned award may persuade the losing party that a decision is well-sup- ported, even if the outcome is negative.[61]

    Alternatively, a fully reasoned award may diminish the likelihood of a judicial challenge by eliminating certain grounds for non-enforcement, as might be the case in situations where an international arbitral tribunal explicitly takes European competi- tion or U.S. antitrust law into account, thereby dissuading the losing party from challenging an award in European or U.S. courts on certain public policy grounds.[62]

    Another type of post-award procedure involves collateral proceedings. These types of actions may be on the rise, given the increasing incidence of parallel proceedings in international commercial disputes.[63] Although the law concerning preclusion and collateral estoppel are not as well developed in arbitration as in litigation a court may find itself unable to give preclusive effect to a ruling or award that is unreasoned, since the court cannot determine whether a particular issue was fully and fairly argued in the earlier action.

    The final type of post-award procedure involves “arbitral appeals,” which are an entirely private, contractually created means of appealing the substance of an arbitral award.[64] Over the last few years, several arbitral organizations have established formal procedures for appellate arbitra- tion.[65]

    The evolution of this particular procedure has important ramifications for the award writing process, both at first instance and on appeal. For example, arbitrators hearing a dispute as an initial matter may need to be increasingly aware of the quality of their awards both to avoid creating an appealable issue and to provide an appellate tribunal with a solid understanding of how and why the initial decision was made.[66] Questions will also arise as to whether and to what extent an appellate award can or should differ from an award at first instance as a matter of form or content.
     
  2. Non-Structural Rationales for Reasoned Awards

    As the preceding discussion suggests, there are a number of structural rationales supporting the use of reasoned awards in international commercial arbitration. These structural reasons apply despite the various functional differences between litigation and arbitration. However, there are also several non-structural reasons why reasoned awards are useful or necessary in international commercial arbitration.

    First and perhaps most importantly, reasoned awards provide key assurances regarding the nature and quality of justice that is being dispensed by the arbitrator. Commentators have noted that both common law and civil law jurisdictions have recognized a “procedural trinity” that is neces- sary to establish the rule of law.[67]

    The three constituent elements include:
    1. the audiatur principle (audiatur et altera pars), which in En- gland and America forms part of natural justice and due process of law;
    2. explicit reasons and fact finding; [and]
    3. the right to appeal.[68]
While parties in arbitration are allowed to waive the right to an appeal as well as the right to explicit reasons and fact finding, such waivers are not a required feature of arbitration. To the contrary, as the recent de- bate about arbitral appeals has shown, parties can enforce these procedural rights to the extent consistent with the arbitral setting.

Thus, while it remains to be seen how the reasons requirement in international commercial arbitration compares to similar standards applicable in litigation, it is clear that arbitrators must provide some minimal level of reasoning once the parties have requested a reasoned award.[69] In fact, the length and de- tail associated with reasoned awards in international commercial arbitration suggests that international arbitrators are far exceeding any minimum requirements.

Second, use of reasoned awards improves the quality of the decision- making process and consequently of the decision itself.[70] As U.S. Circuit Judge Richard Posner has noted, “[r]easoning that seemed sound when ‘in the head’ may seem half-baked when written down, especially since the written form of an argument encourages some degree of critical detachment in the writer, who in reading what he [or she] has written will be wondering how an audience would react.”[71]

By encouraging arbitrators to articulate their reasons for following a particular course of action, rea- soned awards help increase the rationality of the process, minimize the likelihood of arbitrary decisions, prevent the introduction of irrelevant is- sues into the analysis, decrease the possibility of reliance on unreliable evidence and promote justice while simultaneously showing society that these aims are being met.[72]

Third, reasoned awards can be said to enhance the legitimacy of the arbitral process in the eyes of the arbitrators, the parties and the public by demonstrating the seriousness and integrity of the arbitral endeavor.[73] Reputational concerns may be particularly important as international arbi- tration comes under increased attack for matters ranging from the lack of transparency to the supposedly preferential treatment of large, multinational firms.

Fourth, reasoned awards provide parties with a more detailed and satisfactory explanation of why the arbitrator decided as he or she did. This feature can be quite important, since parties including parties to commercial disputes are often motivated as much by emotion as by logic, and a party who believes that he or she has not been fully “heard” during the arbitration (a phenomenon that could be directly affected by the quality or content of the award) might mount a challenge, even if the chance of prevailing seems relatively low.

Indeed, empirical studies have shown that “the perceived fairness of arbitration hearings significantly predicts litigant decisions to accept an arbitration decision,” which suggests that fully reasoned awards are beneficial to international commercial arbitration at both an individual and systemic level.

Conclusion & Suggestions
As the preceding discussion suggests, writing a reasoned award is one of the most important and challenging tasks that an international arbitrator must undertake. Not only do international awards typically reflect the same degree of analytical complexity as many judicial decisions, they also require a uniquely international perspective that is very difficult to master.

Learning to overcome the allure of parochialism and incorporate key elements of both the common law and the civil law legal traditions into one’s legal analysis is something that requires a great deal of skill and train- ing. Unfortunately, the arbitral community has adopted the view that international arbitrators can become competent in award writing simply through “observation, exposure, participation and experience.”

To some extent, this highly deferential approach to arbitral education would appear unassailable, since it strongly resembles the standard means by which many common law jurisdictions have educated their judges. However, experts have expressed a number of concerns about the efficacy of the common law approach to judicial education, thereby raising similar questions about the nature and quality of arbitral education, particularly with respect to award-writing.[74]

The current approach to arbitral education has also been defended on the grounds that market forces will ensure the requisite degree of competence in writing international awards. The hypothesis is that good arbitrators meaning those that can and do comply with national and international requirements regarding reasoned awards and who reflect inappropriately international perspective in their analyses will be re- warded through repeat appointments, while those arbitrators who do not rise to the task of drafting an adequate award will eventually find them- selves without jobs.

However, this argument breaks down in several ways. First, commentators have long recognized that the lack of transparency in international commercial arbitration can allow sub-standard arbitrators to continue to work for a significant period of time. Second, experts have noted that that “no selection method can guarantee the continued fitness” of an adjudicator. Indeed, many judges “turn out to be ill-suited for the job,” despite having complied with selection procedures that are ostensibly more rigorous than those facing international arbitrators.

As it turns out, there are a number of ways to improve the skills of international arbitrators. One is to increase the number and quality of educational opportunities concerning award-writing in international commercial arbitration. In so doing, the arbitral community can consider some of the recent innovations in judicial education to see what types of improvements are possible on both a procedural and substantive level. For example, educational providers can combine in-person sessions with written guidebooks so as to take the particular needs and learning style of international arbitrators into account.

Another possibility is to create more rigorous standards regarding arbitrator education, such as by imposing a mandatory minimum regarding the number or type of courses a new or experienced arbitrator should take. Similar initiatives have met with significant resistance in the judi-cial context on the grounds that such measures were somehow “insulting,” and similar types of objections can be anticipated in the arbitral context.[75] However, mandatory minimums in arbitrator education would be consistent with other efforts to improve the quality of international com mercial arbitration. Furthermore, mandatory education would help overcome the fact that those individuals who are most in need of additional training are often the least likely to recognize that need.

At this point, international commercial arbitration is considered to be one of the legal world’s most remarkable success stories, and nothing in this Article should be taken as criticizing the excellent work done by the large majority of international arbitrators. Indeed, studies suggest that most observers and participants appear satisfied with decision-making in international commercial arbitration.

However, the arbitral community must continue to be vigilant if international commercial arbitration is to retain its position as the preferred method of resolving cross-border business disputes. One of the best ways of ensuring the continued excellence of international commercial arbitration is to ensure the quality of reasoned awards. While it is not recommended that the international arbitral community attempt to adopt a single standard approach to award writing, new and experienced arbitrators would undoubtedly benefit from an improved understanding of what is involved in a reasoned award.

Bibliography
Books
  • American University, Washington College Of Law, Center On International Commercial Arbitration........... 3
  • Bryan A. Garner, Why Lawyers Can’t Write........... 5
  • International Centre For Dispute Resolution (Icdr) International Arbitration Rules............ 7
  • J.J. George, Judicial Opinion Writing Handbook........... 10
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  • Peter De Cruz, Comparative Law In A Changing World........... 10
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  • Laurence Craig, The Arbitrator’s Mission and the Application of Law in International Commercial Arbitration........... 9
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  • Allen Shoenberger, Change in the European Civil Law Systems: Infiltration of the Anglo-American Case Law System of Precedent Into the Civil Law System,........................ 3
  • Emily Kadens, The Puzzle of Judicial Education: The Case of Chief Justice William de Grey........... 4
  • George A. Bermann, Writing the Award – An Arbitrator’s Per- spective....................... 1
  • Irene M. Ten Cate, International Arbitration and the Ends of Appellate Review............ 1
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  • Lawrence B. Solum, Communicative Content and Legal Content........... 5
Cases:
  • Contractor v. Producer (Zam. v. Zam.)........... 8
  • Dow Chemical (Fr., U.S., Switz. v. Fr.)........... 8
  • Miller v. Fenton........... 7
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End-Notes:
[1] Rain CII Carbon, LLC v. Conocophillips Co., 674 F.3d 469, 473-74 (5th Cir. 2012) (distinguishing a standard award from a reasoned award); Cat Charter, LLC v. Schurtenberger, 646 F.3d 836, 844-46 (11th Cir. 2011)
[2] Rain CII Carbon, 674 F.3d at 473-74; Cat Charter, 646 F.3d at 844-46; Gary B. Born, International Commercial Arbitration 3037-45 (2014).
[3] George A. Bermann, Writing the Award – An Arbitrator’s Per- spective, in International Arbitration Checklists 171 (Grant Hanessian & Lawrence
[4] .I. Strong, Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration, 2012 J. DISP. RESOL. 1, 2-3, 5-6
[5] Carbon, supra note 2, at 3044
[6] Irene M. Ten Cate, International Arbitration and the Ends of Appellate Review, 44 N.Y.U. J. INT’L L. & POL’Y 1109, 1111 (201
[7] Born, supra note 2, at 73.
[8] Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration, in LOOKING TO THE FUTURE: ESSAYS ON INTERNATIONAL LAW IN HONOR OF W. MICHAEL REISMAN 821, 821 n.4
[9] Lloyd et al., supra note 3, at 20
[10] ICISD Convention Arbitration, INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID), https://icsid.worldbank.org/ apps/ICSIDWEB/process/Pages/Award-Convention-Arbitration.aspx (last visited Oct. 6, 2020)
[11] Allen Shoenberger, Change in the European Civil Law Systems: Infiltration of the Anglo-American Case Law System of Precedent Into the Civil Law System, 55 LOY. L. REV. 5, 5 (2009)
[12] Strong, Writing, supra note 6, at 101-06
[13] American University, Washington College Of Law, Center On International Commercial Arbitration, https://www.wcl.american.edu/arbitration/ (last visited oct. 5, 2020
[14] Strong, Guide, supra note 1, at 7-9
[15] Emily Kadens, The Puzzle of Judicial Education: The Case of Chief Justice William de Grey, 75 BROOK. L. REV. 143, 143-45 (2009)
[16] See Kadens, supra note 15,
[17] See Kadens, supra note 15
[18] Jeffrey A. Van Detta, The Decline and Fall of the American Judicial Opinion, Part I: Back to the Future From the Roberts Court to Learned Hand – Context and Congruence, 12 BARRY L. REV. 53, 55 (2009) [
[19] Doug Jones, Acquisition of Skills and Accreditation in International Arbitra- tion, 22 ARB. INT’L 275, 281 (2006).
[20] Chartered Institute Of Arbitrators (CIARB), https://www.ciarb. Org/ (last visited Feb. 5, 2016) (offering courses in award writing); AMERICAN ARBITRATION ASSOCIATION (AAA), COURSE CALENDAR,
[21] Catherine A. Rogers, The Vocation of the International Arbitrator, 20 AM. U. INT’L L. REV. 957, 970 n.40 (2005) [hereinafter Rogers, Vocation].
[23] Lake Wobegone Effect with respect to their writing skills. See Garrison Keillor, The Lake Wobegone Effect, A PRAI- RIE HOME COMPANION (Apr. 1, 2013)
[24] Lawrence B. Solum, Communicative Content and Legal Content, 89 NOTRE DAME L. REV. 479, 503-06 (2013
[25] Bryan A. Garner, Why Lawyers Can’t Write, ABA J.
[26] infra notes 67-84
[27] Strong, Judicial Education, supra note 23, at 2-5.
[28] Oona A. Hathaway, Path Dependence in the Law; The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601, 628-29 (2001
[29] Strong, Writing, supra note 6, at 95-97; see also supra notes 15-32 and accompa- nying text.
[30] Livingston Armytage, Educating Judges: Towards A New Model Of Continuing Judicial Learning (1996);
[31] See Jones, supra note 19, at 275.
[32] ARMYTAGE, supra note 34, at 149.
[33]Lloyd et al., supra note 3, at 38-40; Margaret Moses, Reasoned Decisions in Arbitrator Challenges, III Y.B. INT’L ARB. 199 (2013)
[34] Ruth C. Vance, Judicial Opinion Writing: An Annotated Bibliography, 17 LE- GAL WRITING J. LEGAL WRITING INST. 197, 204-31 (2011
[35] infra notes 56-57
[36] International Centre For Dispute Resolution (Icdr) International Arbitration Rules, art. 30(1) (amended in 2014), https://www.icdr.org/icdr/showproperty;j sessionid=WL65TGcH2K16QdzHPG1Zh9vL2tB2V1J5Mm8HvxPqf96wpGgd2Ph!102604678
?Nodeid=/UCM/ADRSTAGE2020868&revision=latestreleased (“
[37] Hart v. Massanari, 266 F.3d 1155, 1176-77 (9th Cir. 2001) (discussing and reflecting on the qualities of a rea- soned ruling); THE GREEN BAG ALMANAC & READER
[38] BORN, supra note 2, at 3040-41, 3043-44
[39] 77 Pa. Stat. Ann. § 834 (2013).
[40] Miller v. Fenton, 474 U.S. 104, 113-14 (1985)
[41] Ralf Michaels, The Functional Method of Comparative Law, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 339, 342, 357 (Mathias Reiman & Reinhard Zimmerman eds., 2006).
[42] BORN, supra note 2, at 2207-10
[43] See Michael L. Wells, “Sociological Legitimacy” in Supreme Court Opinion, 64 WASH. & LEE L. REV. 1011, 1029 (2007
[44] See Fontaine, supra note 3, at 33; Shoenberger, supra note 11, at 5.
[45] Jeffrey L. Friesen, When Common Law Courts Interpret Civil Codes, 15 WISC. INT’L L.J. 1, 8 (1996
[46] Schadbach, supra note 60, at 343 n.63 (citing ARTHUR TAYLOR VON MEHREN & JAMES RUSSELL GORDLEY, THE CIVIL LAW SYSTEM, AN INTRODUCTION TO THE COMPARA- TIVE STUDY OF LAW 1140 (2d ed. 1977));
[47] Mathilde Cohen, When Judges Have Reasons Not to Give Reasons: A Compar- ative Law Approach, 72 WASH. & LEE L. REV. 483, 533 n.286 (2015).
[48] Dow Chemical (Fr., U.S., Switz. V. Fr.), International Chamber of Commerce Case No. 4131, Interim Award, IX Y.B. COM. ARB. 131, 135 (Sept. 23, 1984)
[49] Contractor v. Producer (Zam. V. Zam.), International Chamber of Com- merce Case No. 16484, Final Award, (2011), XXXIX Y.B. COMM. ARB. 216 (2014);
[50] Contractor (Zam.), XXXIX Y.B. COMM. ARB. At 216; Fontaine,
[51] W. Laurence Craig, The Arbitrator’s Mission and the Application of Law in International Commercial Arbitration, 21 AM. REV. INT’L L. 243, 284 (2010)
[52] Nat’l Aeronautics & Space Admin. V. Nelson, 131 S. Ct. 746, 766 (2011)
[53] fitzmaurice & O’Connor, supra note 3
[54] Strong, Guide, Supra Note 1, At 21
[55] Strong, Research, Supra Note 8, At 26-27
[56] Strong, Guide, Supra Note 1, At 21
[57]Peter De Cruz, Comparative Law In A Changing World 70 (3d Ed. 2007);
[58] J.J. George, Judicial Opinion Writing Handbook 26 (5th Ed. 2007).
[59] BORN, Supra Note 2, At 83.
[60] Conven- tion on the Recognition and Enforcement of Foreign Arbitral Awards, art. V, June 10, 1958,
[61] See Fontaine, supra note 3, at 34; Marx, supra note 5, at 23 (quoting a party who stated, “We weren’t at all happy with your award, but I can’t complain because you explained it so well”).
[62] Eco Swiss China Time Ltd v. Benetton Int’l NV, [1999] E.C.R. I-3055; Mitsubishi Motors Corp. V. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 638 (1985).
[63]Nadja Erk-Kabat, Parallel Proceedings In International Arbitration: A European Perspective 1 (2014); STRONG, GUIDE, supra note 1, 85-87.
[64] Judge Rudolph Kass, A Private Path to Appellate Arbitration, 50 BOSTON B.J. 35, 35 (Jan./Feb. 2006); Paul Bennett Marrow, A Practical Approach to Affording Review of Commercial Arbitration Awards Using an Appellate Arbitrator in, 60 DISP. RESOL. J. 10, 13- 15 (Aug.-Oct. 2005).
[65] Optional Appellate Arbitration Rules, AAA, (Nov. 1, 2013), http:// go.adr.org/appellaterules [hereinafter AAA Appellate Rules]; International Institute for Conflict Prevention and Resolution (CPR) Arbitration Appeal Procedure and Commentary, https://www.cpradr.org/Portals/0/Resources/ADR%20Tools/Clauses%20&%20Rules/CPR
[66] Kass, supra note 85, at 35.
[67] Gunnar Bergholtz, Ratio et Auctoritas: A Comparative Study of the Significance of Reasoned Decisions with Special Reference to Civil Cases, 33 SCANDINAVIAN STUDIES IN LAW 11, 44 (1989); see also Rogers, Vocation, supra note 21, at 985 n.97 (claiming “the product of international arbitral decision-making is justice”).
[68] Gunnar Bergholtz, Ratio et Auctoritas: A Comparative Study of the Significance of Reasoned Decisions with Special Reference to Civil Cases
[69] Lloyd et al., supra note 3, at 27;
[70] GEORGE, supra note 73, at 27;
[71] Richard A. Posner, Judges’ Writing Styles (And Do They Matter?), 62 U. CHI. L. REV. 1421, 1447-48 (1995).
[72] fitzmaurice & O’Connor, supra note 3, at n.19.
[73] Alan Scott Rau, Integrity in Private Judging, 38 S. TEX. L. REV. 485, 532 (1997) (
[74] Strong, Judicial Education, supra note 23, at 2-5
[75] ARMYTAGE, supra note 34, at 149

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