If, in the first text, we understood that the parties may “design” the procedure itself, we now move on to a direct consequence of that autonomy: the opportunity to select who will decide the dispute. This is one of the most widely recognized advantages of arbitration, as it allows the parties to entrust their dispute to someone whose experience, reputation, and technical knowledge inspire confidence.
This can change everything.
While in the judiciary the judge is appointed by the system, in arbitration the parties have the opportunity to define, with greater precision, the profile of the decision-maker in disputes that are often complex, technical, and uncommon in the routine of the courts. That is why it is often said that “the value of the arbitration lies in the arbitrator”: the arbitrator is, in essence, the intellectual asset of the proceeding and one of the main sources of the added value of the decision.
In practice, this choice involves more than résumés. The parties’ trust in the arbitrator’s talent, dedication, prior experience in the subject matter, and specialized knowledge has a direct impact on the security of the proceeding—especially because arbitration, as a rule, provides for a single instance of adjudication. And this trust must be built responsibly, taking into account expertise, reputation, conduct, and even familiarity with arbitral dynamics themselves, since the absence of the latter may compromise the development of the proceeding or expose it to procedural flaws.
It should also be noted that specialization may be legal or technical, depending on the subject matter of the dispute. This means that, in addition to lawyers, professionals such as engineers and accountants may act as arbitrators, provided they meet the legal requirements.
Imagine a contract for the construction of an industrial facility in which the main point of dispute involves disagreements over measurements, equipment performance, and technical implementation standards. The controversy does not revolve solely around contractual clauses; it also involves technical issues. In such cases, resorting to arbitration and appointing an engineer-arbitrator or a professional with experience in these technical matters can be highly beneficial to the resolution of the dispute.
Returning to party autonomy, it also extends to the moment of selecting arbitrators. Indeed, the parties may establish objective criteria, indicate desired qualifications, restrict languages or nationality, or even set requirements linked to the sector involved in the dispute.
Moreover, when choosing the professional(s) who will decide the dispute, it is essential that the parties—and especially their lawyers—carry out prior checks to ensure that the available candidates possess the expected characteristics, thereby avoiding surprises and ensuring predictability in the proceeding. They should also conduct their own conflict checks to ensure the proper fulfillment of the arbitrator’s duty of disclosure, as recommended in the Comments to the Guidelines of the Brazilian Arbitration Committee (CBAr) on the Arbitrator’s Duty of Disclosure.
In fact, in a business environment where scope failures, unforeseen costs, and technical disagreements are frequent, the possibility of appointing specialized arbitrators gives arbitration a level of analytical depth that would hardly be achieved in traditional judicial proceedings.
Ultimately, it is a way to ensure that the dispute is decided by those who truly understand the subject matter. And this is one of arbitration’s greatest strengths: allowing the parties to place their disputes in the right hands, with the confidence that the decision will be rendered by professionals who are technically prepared and aligned with the complexity of the case.
(Third Part)
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