Introduction Over the past 15 years, as both tribunal secretary and arbitrator (including eight years as Professor Pierre Mayer’s associate and then partner), I have had the privilege of observing first-hand how arbitral tribunals deliberate and make decisions. These experiences have offered invaluable insights—some expected, others surprising—into what truly influences the outcome of an arbitration. Here are five takeaways that I want to share with the readers of the CEPANI newsletter.
1. Deliberations Are More Frequent Than You Think
Many assume that deliberations happen primarily at the award stage. In reality, I have observed that tribunals deliberate throughout the process, most of their deliberations relate to procedural issues, and most procedural decision have strategic implications.
Crucially, most of these strategic procedural decisions are not dictated by strict legal rules but rather by broad concepts of fairness, appropriateness, and reasonableness. This is where the tribunal’s discretion comes into play—an arbitrator's ability to “get it right” is an art, not just a skill. There is no training that teaches arbitrators how to exercise discretion well, and no CV can confirm that an arbitrator possesses this talent. The best way to develop it is through close observation of those who excel in it—learning from their reasoning until it becomes instinctive.
2. Arbitrator Remuneration is a Strategic Aspect
Few practitioners realize just how much time tribunals spend discussing their own fees. Arbitrators carefully consider whether the fees are reasonable in light of their workload and the complexity of the case.
This should not be taken by the Parties as an irrelevant aspect, or one beyond their control.
Indeed, if a tribunal feels undercompensated for the time required, it will have less motivation to study the case in detail, and may even become unconsciously influenced by its frustration when a request to introduce additional submissions or evidence is made.
Arbitrator remuneration is a tricky topic. As we all know, the amount at stake is not indicative of the amount of work involved to resolve the dispute. Big cases may be simple while small cases can be very complex. In fact, the biggest case I have personally seen from the tribunal side (77bn USD at stake) was also one of the most straightforward cases of my career ; while my smallest case as arbitrator is quite possible the most complex I have had to resolve.
Don’t forget that arbitrators largely advance their services: they need to wait until the end of the case to get paid, which means months or years with no cash-in. In addition to that, arbitrators’ availability is very difficult to manage as the time to be allocated to each case is unpredictable.
Therefore, if the applicable rules give flexibility to make intermediary payments, do it. The happier arbitrators are about their remuneration, the harder they will work (as every other human being). The harder they work on the case, the more likely they are to understand your position (and hopefully side with you!).
3. The three rules of effective submissions: Brevity, Brevity, Brevity
Arbitration cases are often fact-intensive and complex, requiring accounts of industry practices, technical issues, and long contractual relationships. However, many practitioners underestimate the limits of human cognition and the constraints of time. If submissions are too voluminous, arbitrators simply cannot process all the material in depth. This increases the risk that key points will be overlooked or given less attention than they deserve.
The challenge is that concise drafting is harder, not easier. It requires more time, more senior involvement, and a level of distance that arbitration deadlines rarely allow. This is why AI will likely transform arbitration practice—helping lawyers produce the most concise, impactful submissions possible in less time. While this will raise questions about pricing legal services, one thing is certain: we now have better tools than ever to avoid overloading tribunals with excessive material, at the risk of losing control over how the case is understood and decided.
4. Do Not Assume the Chair Will Seek a Middle Ground
The key to strategic case preparation is anticipating deliberations. I am always surprised when I hear lawyers assume that if a tribunal is divided, the chair will seek a compromise between the two co-arbitrators’ positions. This does not align with my experience. If the chair is caught between two opposing views, they will not try to “split the baby.” Instead, they will try to understand which side is right.
5. Always Assume the Case Will Be Decided in Equity
Of course, every arbitration award is reasoned in law. But in reality, tribunals want to reach an outcome that feels fair—and they will unconsciously adjust their reasoning to achieve this. Few arbitrators would admit to this, as they genuinely believe they are applying the law rigorously. Yet, when fairness concerns arise, they will influence the tribunal’s approach.
This influence might manifest in procedural decisions, the assessment of evidence, or even cost allocations. The real risk is if the tribunal misunderstands the equities of the case—either because they didn’t fully grasp the stakes or because the parties failed to frame them effectively. If this happens, the tribunal may attempt to “correct” an unfair result in ways that feel arbitrary or misguided.
Your job as counsel is to make the tribunal feel that applying the law strictly leads to a fair result. Do not ignore or underestimate potential fairness concerns. A tribunal that feels comfortable about the fairness of its decision is much more likely to rule in your favor.
Conclusion
These insights are drawn from years inside the deliberation room, where theory meets reality and abstract legal principles collide with human decision-making. Understanding how arbitrators actually think and work is a crucial skill for any arbitration practitioner. The best strategy? Anticipate deliberations, present your case concisely, and make it easy for the tribunal to reach the right decision—both legally and equitably.