International and Domestic Arbitration
Mr. Palmer has extensive experience handling international and domestic arbitration matters. In his role as the former Chair of the International and Domestic Arbitration Group at Steel Hector & Davis LLP, Mr. Palmer was responsible for overseeing the international litigation and arbitration practice in the firm’s offices throughout Latin America. He is fluent in Spanish and frequently conducts international arbitrations in Spanish. He has served as counsel and as an arbitrator in such proceedings. He often speaks at international arbitration conferences in the U.S., Latin America, and Europe.
He has served as an arbitrator in over 30 cases, including sitting as chair or sole arbitrator in over 20 of those cases. His experience includes proceedings administered under the ICDR, ICC, PCA, AAA, UNCITRAL, and the Conciliation and Arbitration Centre of the Chamber of Commerce of Panama rules. He has also sat as an emergency arbitrator in expedited proceedings. He has worked on matters in a wide variety of subject areas including, manufacturing, telecommunications, software engineering, lighting, civil engineering, food and beverage, power generation, partnership agreements, public works projects, mobile phones, shipping, construction, concession agreements, agriculture, joint venture agreements, medical supplements, real estate, tourism, finance, health care, stevedoring, biomedical engineering, distributorship agreements, and mining.
As part of his training in international arbitration, he successfully completed the Fellowship and Award Writing Program offered by the Chartered Institute of Arbitrators and is a Fellow of the Chartered Institute, FCIArb. He is among a group of Fellows of the Chartered Institute who are certified to provide Fellowship training and has conducted such training in Latin America. He created the concept of the ICC Masterclass for Arbitrators and worked with the ICC to launch the inaugural session held in Paris, France in 2009. He has also served as an instructor with the National Institute of Trial Advocacy (NITA) as part of NITA’s International Arbitration Training on cross-examination in Europe.
Philosophy and Approach
While some arbitrators are reluctant to disclose their personal views on general procedural and evidentiary topics for fear that it may cost them appointments or lead to challenges, Mr. Palmer believes that it is appropriate and helpful for parties to have a sense of his philosophy and approach as an arbitrator. His thinking is that if this transparency results in parties deciding not to select him, then that is a good thing for all involved. And making such information publicly available provides notice to parties, which removes the basis for successful challenges based on these disclosures. Moreover, he is confident that most parties will agree that his approach makes sense and will appreciate his transparency.
Discovery or Exchange of Evidence
There is often a tension in the world of international arbitration between the philosophy and practice of the civil law system, which allows for little or no exchange of evidence, and the view of the common law system, which contemplates a robust exchange of evidence. Mr. Palmer is trained as a common law lawyer and generally agrees with the philosophy of Lord Chancellor Hardwicke, espoused over two centuries ago, that in the pursuit of truth and justice, “the public has a right to everyman’s evidence.” A legal proceeding always involves a search for the truth and unreasonably limiting the ability to obtain any relevant evidence undeniably undermines that effort.
Having said that, he recognizes that part of the reason that parties choose arbitration over litigation is because they do not want to engage in extensive U.S. style discovery. When selecting arbitration, sophisticated businesspeople understand that they will not have the same access to evidence as would be the case in U.S. courts, but that does not mean that they wish to entirely relinquish their ability to obtain any relevant evidence. Accordingly, he takes a measured approach to discovery and tries to strike a compromise, based on the facts of each case, which will allow parties to obtain the essential relevant evidence they need without going overboard and engaging in a costly fishing expedition. As part of this philosophy, he typically requires parties to exchange all the evidence they intend to present in their case-in-chief, along with a summary of the testimony of their proposed witnesses, at the outset of a case. Similarly, out of respect for party autonomy, he will usually approve an agreement among the parties as to how and when discovery should proceed.
Admission of Evidence
As most experienced international arbitration practitioners are aware, national evidentiary codes, such as the Federal Rules of Evidence in the U.S., do not govern the admission of evidence in arbitration proceedings. Instead, institutional rules will typically contain a general provision addressing the tribunal’s wide discretion to consider and admit evidence. Additionally, the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) are often adopted by tribunals as non-binding guidance on evidentiary issues.
Mr. Palmer believes that the IBA Rules offer useful standards beyond the typically bare bones institutional evidentiary rules and encourages parties to consider adopting the same as non-binding guidance on evidentiary matters. He understands that part of the appeal of arbitration is that it is not governed by detailed evidentiary codes and instead favors more flexible and informal evidentiary standards. Whereas evidentiary codes set many highly technical requirements for the admission of evidence, his view is that absent limited extraordinary circumstances, evidentiary objections in arbitration should go towards the weight rather than the admissibility of the evidence in question. Thus, he typically asks parties to meet and confer to attempt to stipulate to the admissibility of their respective exhibits. This approach streamlines the arbitral process and helps ensure that each party will be able to present its case. Of course, he is always ready to perform his gatekeeper function and rule on evidentiary issues when the parties are unable to agree on the same.
Interpretation of Contracts
Mr. Palmer believes in the sanctity of contracts and follows an orthodox approach when interpreting the same. Given a lifetime of experience representing sophisticated clients in complex business deals, he knows that most businesspeople prefer the strict application of the contractual terms they agreed to, rather than a tribunal’s effort to rewrite a contract to reach what the tribunal feels is a just result. Instead, he believes that the parties’ intent must be respected, and the best evidence of the parties’ intent is found in the literal terms of the contract they agreed to in an arms-length transaction. Businesspeople understand risk and they enter contracts knowing that things are not always going to go their way, but at least they are able to assess their risk at the outset based on the agreed contractual terms. That is far better than dealing with the unforeseeable risk of having a tribunal improperly disregard contractual terms to reach what it believes is an equitable outcome.
Naturally, Mr. Palmer understands that certain statues and codes may expand the range of available remedies. Similarly, the law of contracts in both common and civil law jurisdictions includes various doctrines regarding the interpretation of contracts. For example, one such doctrine allows a tribunal to consider parole evidence in determining what the parties intended when a contractual clause is ambiguous. But resort to such doctrines should be the exception rather than the rule, and the tribunal must ensure that the requirements for the application of these doctrines are met, and that such doctrines are applied strictly according to their terms.
Methodology and Analytical Approach
Mr. Palmer is careful and deliberate. He is not the ideal arbitrator for parties seeking quick and dirty rough justice. That is contrary to his training and temperament. While he appreciates that part of the appeal of arbitration is the flexibility that comes from the absence of detailed procedural and evidentiary rules, he believes that parties still expect and deserve a rigorous and precise analysis of the facts and applicable law.
Accordingly, he takes great care in reviewing all evidence presented, including witness testimony, and evaluates the credibility of the same based on his experience as a litigator and whether the testimony is supported or contradicted by other relevant evidence. To that end, he typically insists that parties transcribe evidentiary hearings in order to have a precise record to examine and cite in support of detailed factual findings. Similarly, he conducts an in-depth review of the applicable law and provides a step-by-step explanation of his legal reasoning and conclusions. Unless the parties have agreed that the tribunal should decide the case as amiable compositeur or ex aequo et bono, the tribunal must determine the applicable substantive law and rigorously apply the relevant legal doctrines. Stated differently, the relative informality of arbitration versus litigation does not mean that the tribunal can forego detailed legal analysis or disregard applicable legal principles.
He believes that such an approach promotes a more just result and enhances confidence in the arbitral process. While no party likes to lose, most are far more willing to accept an outcome when they know that they have had a full opportunity to present their case and are able to follow and understand the tribunal’s analysis of the facts and law.
Use of Tribunal Secretaries
When acting as chair or sole arbitrator, Mr. Palmer believes in the use of tribunal secretaries with appropriate safeguards. The main touchstone is that the appointment of an arbitrator involves a mandate from the parties for the arbitrator to personally discharge the decision-making function and exercise his independent judgement. Thus, an arbitrator must always review the case file and may not delegate their adjudicative responsibility to the tribunal secretary.
Having said that, proper use of tribunal secretaries, whose billing rate is usually far lower than that of the members of a tribunal, can help increase efficiency and lower costs. It also provides vital training and experience for younger practitioners who desire to pursue a career as arbitrators. Many international arbitrators who take on extensive caseloads to maximize their earnings use undisclosed counsel in their firm to perform the functions of a tribunal secretary. That is not Mr. Palmer’s approach.
First, he typically limits the total number of cases he works on as an arbitrator to no more than six to eight active cases at a time. He does this because he is meticulous and wants to be able to dedicate the necessary time to each case, and have a proper work-life balance. Second, he seeks the parties’ approval to use a tribunal secretary at the outset of the case. In doing so, he provides a resume of the individual he proposes to use as a tribunal secretary and explains that the individual will operate under the tribunal’s direction and control and perform administrative tasks as well as initial research and drafting. He is always mindful of his mandate and reviews all fillings and takes great care to personally exercise his adjudicative responsibility.