The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ICC Academy or the ICC International Court of Arbitration.
Inside the arbitrator’s mind with Sitpah Selvaratnam
Sitpah Selvaratnam is an experienced international arbitrator specialising in commercial, shipping, commodities, and shareholder disputes. A former member of the ICC International Court of Arbitration (2018-2024) and the Permanent Court of Arbitration (2019-2025), she has been appointed as Presiding Arbitrator, Co-Arbitrator, and Sole Arbitrator in over 50 disputes under leading institutional rules including ICC, SIAC, HKIAC, AIAC, and DIAC, as well as in ad hoc arbitrations under the LMAA and SCMA rules; seated in major arbitration centres worldwide. She was an advocate & solicitor for 33 years before becoming an independent arbitrator in 2024.
With extensive experience in expedited and emergency proceedings – and a particular focus on charterparty disputes, international trade claims, and complex shareholder matters – Sitpah brings a distinctive perspective on what makes arbitration effective, from tribunal deliberations to quality of advocacy.
In this Q&A, she explains how arbitrators decide cases – walking through her arbitration award drafting process, how she manages arbitral tribunal deliberations with co-arbitrators, and practical international arbitration advocacy tips. She also covers what changes in expedited arbitration proceedings, and – drawing on her time as a member of the ICC International Court of Arbitration – how parties should go about choosing an arbitration seat and institution.
Sitpah’s process for forming a view, drafting an award, and managing deliberations between tribunal members
When do you start forming your view of a case – during submissions, at the hearing, or during deliberations? Does this differ between document-heavy shipping disputes and witness-intensive shareholder disputes?
My view of a case typically evolves through several stages. It begins with familiarisation with the facts. As the case progresses through pleadings, document production and requests, my understanding deepens. Succinct and pertinent interlocutory applications give me insight into counsel’s respective perspective of the case.
The opening written submissions before the oral evidentiary hearing provide a good feel of the precise ambit of dispute. But it is most often at the hearing, as witnesses are cross-examined against particular documents, that the dispute comes into sharp focus. Deliberations between Tribunal members during the hearing are critical to a fuller appreciation of different views, and the diversity within the panel adds depth to the deliberations. Of course, closing submissions help to refine the initial assessment and clarify doubts, especially when counsel addresses the specific areas the Tribunal has directed. My assessment at the evidentiary hearing can change after closing submissions, though usually not drastically.
Document-heavy matters come in different shapes and flavours. Some are rarely assisted by oral evidence; determination turns largely on the documents, supported by precise submissions. Others turn on contractual interpretation, which again may not need factual witness testimony, but may call for expert opinion, for example on intervening sanctions law.
Expert witness conferencing, before and during the hearing, enhance the tribunal’s grasp of the interlacing factual and legislative background. In many fact-sensitive and document-heavy shareholder disputes, counsel’s focused cross-examination can steer material findings – providing clarity and highlighting pertinent documents that might otherwise be missed. Placing critical documents in context can be pivotal. Limited time or chess-clock oral hearings, I find, promote focused cross-examination.
Whilst many factors shape the view on any case, an efficient and effective evidentiary hearing often plays a significant role in the decision.
What’s your arbitration award drafting process?
I set aside specific time for the drafting of the award– when I fix evidential hearing dates, and when I accept or decline expedited arbitrations. The procedural history is commonly drafted before the oral hearing, especially when institutional rules stipulate a deadline for the draft or the final award.
I prepare a schedule of the agreed issues which I have requested the parties to submit, with columns for the claimant’s and respondent’s positions on each, and I note down the core evidence relevant to each. As the closing submissions come in, I populate it further, and depending on the tribunal’s deliberations during the hearing, I circulate it before our next conference call to assist further deliberations. I finalise the award once the tribunal’s views are formed.
Where a case has many moving parts, counsel may be directed to provide this schedule to assist with their closing submissions, accompanied by flowcharts or any other visuals where necessary – these assist the drafting considerably. In other cases, the tribunal is content for me to draft from our broad deliberations at the hearing; I then highlight, in the draft award I circulate, any points needing the members’ specific attention or further deliberation arising from closing submissions.
Before drafting the substantive determination, I cast a broad framework to help me organise my thoughts: I consider which issue must be determined first to flow into the next, and the next. This helps to produce an award that is more logical and easier to read.
Where the answer to an issue is closely matched, I pace my room in search of the “more correct” finding! I lay out the relevant principles, see which deserves greater priority, rationalise the applicable rules and law, place the facts into the “puzzle”, and arrive at a landing point. I leave the award to rest for a few days, before re-reading. Much of this analysis happens during my “non-working” time – walking, driving, or chilling before a TV. The best brainwaves come then!
In all my awards, I footnote key paragraphs of pleadings, submissions and evidence; that discipline keeps the award within the scope of the reference. I am more pedantic where fees are ad valorem or subject to scrutiny. Why this difference? Where parties are pay an hourly rate, especially in ad hoc arbitration, they may not want time spent on anything beyond a reasoned determination – and footnoting is time-consuming, which increases costs. Footnoting, and the level of detail in a procedural history vary depending on the context of the dispute.
As a Presiding Arbitrator, how do you manage the arbitral tribunal deliberations when co-arbitrators have divergent views?
Managing the dynamics and deliberation of the arbitral tribunal is delicate, and this begins as soon as the tribunal is constituted. Establishing trust and confidence between members is critical, as is the language adopted in correspondence, both at the start and throughout the proceedings.
As chair of the arbitral tribunal, I usually summarise my thoughts on a procedural ruling or interlocutory application and invite my co-arbitrators to comment before I respond to the parties. Being inclusive is fundamental to the tribunal’s cohesiveness, whilst honouring each member’s independence. Different views are considered, discussed and adopted when sound consensus is achieved. This sets the tone for the final deliberation on the merits.
Fortunately, I have had very few instances of divergent views and have not yet encountered a dissenting opinion. To my mind, side-stepping a head-on collision of views, where possible, is good: there are many layers to a reasoning that can accommodate divergent views and still arrive at the same destination. Anchored in that, I find that robust deliberations during the hearing critical to navigating the direction of findings before individual conclusions are formed – which presupposes that each member is truly independent and neutral. A firm but inclusive approach is not only necessary but vital, and people skills, including listening to understand, are something I pay a lot of attention to!
Even where conclusions diverge, all may not be lost. I have suggested something along the lines of: “Are we really saying very different things? Your emphasis is on X and mine is on X + Y. Let me see if I can re-frame that part of the award in a way acceptable to us both.” Truly understanding another perspective is so important in appreciating where the divide really lies, and how to bridge it.
Advocacy and common mistakes | International arbitration advocacy tips
What advocacy techniques have you found most effective in international arbitration, and conversely, what common mistakes tend to undermine otherwise strong cases?
I find strong and to-the-point opening submissions persuasive – ones that identify the strengths of the client’s case while addressing the weaknesses of the other party’s case. A cross-examination that gets to the jugular is invaluable. Closing submissions that draw on the relevant oral and documentary evidence, moving from one issue to another and are supported by relevant legal provisions, are of great assistance. In short, a well-prepared advocate, on top of the facts and alert to where the tribunal’s attention should turn, is most effective.
Trying to cover all bases, however long a shot, is not the best approach. Cross-examination that closely traces the flow of the witness statements lacks potency and can be frustrating: the benefits of ring-fencing the witness’s answers to test their probative value are lost. The traditional “put” questions required in some legal cultures are not necessary in international arbitration, though in fairness the witness must still have an opportunity to respond to the opposing party’s position. But putting a question and saying, “You can agree or disagree” serves no purpose!
Sometimes the playing field is not level – one party may have a more experienced team. What can undermine an otherwise strong case is where relevant positions could have been pleaded, and evidence adduced, but were not, because the team failed to appreciate them.
That aside, a strong case will find its way into the award despite shortcomings of counsel, whether in temperament, time management or organisation: the tribunal will generally seek clarification and direct specific measures, affording equal opportunity to address gaps in submissions or evidence, ensuring – as far as fairness and the arbitral process allow – a just end.
In your experience with expedited arbitration proceedings, how should parties adjust their approach compared to standard proceedings?
Parties and counsel know timelines are truncated to weeks, or even days, at each stage. It is therefore even more compelling to filter the case to its strongest points and keep pleadings, submissions, and cross-examination succinct. Any oral hearing may run no more than 2 days, and the schedules of the tribunal, counsel and witnesses must accommodate a tight turnaround. Further specific discovery is often eliminated; documents and witness statements are front loaded, with memorial-style exchanges rather than pleadings, and no separate stage for witness statements. This is demanding for the respondent’s team, who may have little lead time.
I work backwards from when the draft award is due, issuing directions and timelines to that end, with a little buffer for inevitable overruns. Extensions, if allowed, are typically for a few days, not weeks. Where an unavoidable or unforeseen event prompts a longer extension, the parties’ or the institution’s agreement is secured to extend time for the award.
ICC Arbitration | Choosing a seat and institution
Drawing on your experience as a member of the ICC International Court of Arbitration and with appointments under ICC, SIAC, HKIAC, LMAA, SCMA, AIAC, and DIAC rules – what are the key differences parties should consider when selecting institutions and seats?
The key difference is really between administered and ad hoc arbitration. In an ad hoc proceeding, there may be no “institutional” rules to steer the process, so the arbitration laws of the seat form the bedrock, and the choice of seat assumes greater importance – it should be one firmly established in supporting ad hoc arbitration. Parties can of course, adopt the UNCITRAL Arbitration Rules, and industry-focused disputes may have specialist rules; the LMAA and SCMA arbitrations are examples that proceed ad hoc, each Association’s rules providing a sound procedural framework.
Otherwise, an ad hoc arbitration can run into real difficulty without an institution to safeguard independence and integrity – for instance, by removing or substituting an arbitrator, where the seat’s courts must then intervene.
Once an administered arbitration is chosen, the main difference between institutions lies in their level of involvement – be it a light touch, or greater engagement through review or scrutiny of the award – what the administration fee structure tends to reflect.
On scrutiny, in my experience ICC dives deepest, with many of its Court members involved over several layers in comparison with the other institutions.
As for seats, parties should consider how the seat’s courts approach arbitration – whether they strike a good balance between protection, support and intervention, honouring party autonomy while maintaining natural justice. The enforceability of interim relief also matters. And in times of geopolitical complexity, the nationality of the parties has become an additional factor in the choice of seat.
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