I approach arbitration assignments recognizing the duty and burden on me to do my best to “get it right”. The parties have chosen to have their disagreement decided by arbitration instead of involving the state apparatus of dispute resolution. I have been fortunate to have received the appointment to resolve that disagreement and it is incumbent on me to find the just and correct resolution as likely there is no appellate body to which to defer or to review my award in detailed substance. That is a very heavy obligation no matter what kind of dispute, consumer, technological, competition related, sport, or high dollar business. Thus, I devote my best efforts as noted to get it right and will limit the number of appointments at any one time to avoid a circuit overload.
It is important to say that I have spent just about my entire legal career dealing with cross cultural issues. I am very lucky to be extremely comfortable and at home in dealing with persons and enterprises from all walks on earth, Asian, European, African, deep South US, New York, or Midwest. Indeed my practice has taken me abroad (Europe, Asia and South America) for a quarter to a third of each year since the late 1980s. I have had disputes from the back woods in Alabama and Louisiana, to Lausanne, Riyadh, Seoul, rural Mexico, and Paris. I want to use this wonderful experience to help arbitrate matters and hopefully bring a fair resolution and serve as a bridge between cultural differences of the parties.
For me, arbitration is a collaborative effort with the parties and the chosen Tribunal. I ask the parties to agree if possible with me on an appropriate procedure, grounded in their preferred culture in civil law or common law, for example whether to adopt expert protocols or special evidence exchange or discovery requirements. I am very familiar with both cultures and have participated in cases in the common and civil law regimes. Finally, I do everything in my power do to work to achieve resolution within the parties timetable and certainly within the Institution’s timetable if there is one.
Q & A with GAR ART
Further information on the arbitrator’s background, experience, preferences and approach to arbitration.
What were you, professionally, before you started work as an arbitrator?
I was until very recently counsel to parties in complex litigation, including international arbitration; my specialty has always been competition related disputes or intellectual property disputes; many subspecialties, however, including investment cases, cases involving high value art, sport, etc.
What other professional roles do you still have?
I was until April 1, 2018, a partner in a global law firm, Akin Gump Strauss Hauer & Feld. I am now full time at Richard Levin Arbitration LLC. www.richardlevinarbitration.com.
Do you have or tend to work with a back office?
This depends on the complexity of the dispute. The rulings, however, are mine alone. I make it a practice to inform the parties (and request their consent) if I would like to involve someone to help me conduct legal research.
Do you like to use a tribunal secretary?
Again, this depends on the complexity of the dispute. Many times, I find the Institutions can help very well in this regard.
How much does your approach vary, case to case?
I try to seek the most expeditious path to conclusion and at the least amount of cost. This does not vary. My website has a section on “Approach”, www.richardlevinarbitration.com. It’s not easy to set out an ex ante cookie cutter approach as the cases do vary.
What is your approach to proposing settlement mid case?
I have asked parties if they have tried to settle mid case and would need help in choosing a mediator. It is a rare case that I, as arbitrator, would involve myself, in fact, I don’t remember any case that I have.
What is your approach to identifying potentially dispositive issues early?
I agree with the disposition of issues early if that can be done (that is, no material fact issues exist) and if the parties have agreed to that procedure via the institution rules or otherwise. In fact, I was one of the early advocates of dispositive motions in international arbitration.
What is your approach to indicating strengths or weaknesses of case early?
Once the case is well enough along so that I feel I know it well, I have indicated concerns I have with a party’s claim or defence. I do not believe in hiding my concerns.
How often do you use the IBA rules of evidence? Will you do it against one side’s wishes?
I like using the IBA Rules, especially the rules relating to testimony (witness statements) of a witness not able to be present at the hearing. I likely would use such rules as a procedural way to deal with this issue, and others, unless a party proposes a better procedure for that case.
Do you encourage the use of skeleton arguments?
In very complex cases, perhaps yes.
Do you encourage the use of discovery?
This depends on the nature of the dispute, the background of the parties, the contract, the institutional rules, etc. Certainly, I encourage the exchange of relevant and requested documents; depositions, only in extraordinary cases and situations in which the witness cannot be present at the hearing.
As a co-arbitrator – will you ever consult with the party who appointed you on the identity of the chair?
Yes if allowed by domestic law, and as set out in the IBA Rules
What is your preference on the presentation of evidence?
This depends on the complexity of the dispute and the institutional rules as well as the parties’ preferences. As a general matter, I prefer a live hearing and am very happy to have a written direct testimony.
What is your approach to counsel misconduct? Do you prefer to deal with it there and then or wait until the end of the case?
I usually deal with it then and there as far as advising the affected counsel and have found adverse inferences to be very helpful.
What is your usual approach to costs?
This of course depends on the contract and institutional rules. If everything is silent, I would be inclined to award if there is a prevailing party.
What is a ‘normal’ turnaround time for you to deliver an award (assuming no exceptional circumstances)
30 Days from the close of proceedings.
Would you describe your procedural style as closer to common or civil law?
I am comfortable with both styles having substantial experience as counsel in both regimes.
What is your policy on cancellations
Have you ever been challenged? Is it reported?
How booked up do you tend to be?
I make myself available and have had very few calendar issues in my career.
Are there any types of appointment or case that you prefer not to accept (e.g., construction disputes; investor appointments in investor state)?
Do you have any particular areas of specialist knowledge (legal or industry-related)?
Legal: Competition, IP, Investor, Environmental. Industry: Energy, Mining, Chemical, Space, Fine Art, Sport, Artificial Intelligence.