As the case proceeds, each arbitrator will no doubt begin to form
his or her own view as to how the various issues that have arisen ought to
be determined; but this should not be a solitary process. The tribunal
consists of three arbitrators. There must obviously be some exchange of
views, some dialogue between them, if they are to try to arrive at a
unanimous decision. In this situation, no man – or woman – is an island.
It would seem to be a matter of plain commonsense that there has to be an
interchange of views between the arbitrators, however it takes place, until
like a jigsaw puzzle – the pieces of the award are put together.
In French law, such an interchange of views is formalised as a
“deliberation”. The Civil Code which governs French internal (or
domestic) arbitrations requires the arbitrators to fix the date at which their
deliberations will start (la mise en délibéré). After that, no further
submissions by the parties are allowed. Under French law too – as in
other civil law countries – the deliberations of the arbitrators are “secret”.
The emphasis is significant – the deliberations are not merely
confidential, but “secret”.
For Professor Bredin, the distinguished French Academician and
author, the rule that there must be a “deliberation” before there is any