Newsletter-21

204 NEWSLETTER 2016 Against this factual background, it is important to assess the ap- plicable rules and acceptable practices governing the settlement of parties, and the involvement of arbitrators. Difference of Approach to Facilitating Settlement Before assessing the applicable arbitration rules, it is worthy to emphasize the diversity in international arbitration. Participants, coun- sel, and arbitrators, all coming from different legal backgrounds, will reflect the practice and legal culture they are familiar with. This, inevi- tably, affects the course of international arbitration proceedings. When assessing the encouragement by arbitrators to settle, the differences between two main legal systems, civil law and common law become significant. While certain views desire and regard the facilitation of settlement among the roles of arbitrators, certain other views reject such encouragement from arbitrators. In the common law tradition in that the parties present the full pic- ture of their case at the trial, this is called a “back loaded” litigation 6 . Here, the judge will consider not being substantively acquainted with the case up until the evidentiary hearing; hence, they will be reluctant to be involved proactively to achieve a settlement between the parties. However, now there is a trend “toward judge-managed procedures.” 7 As opposed to common law, civil law judges are involved throughout a litigation procedure, exercising control over the evidentiary or fact- finding process. However, even civil law is not unified with respect to facilitating settlement. Germanic systems, and also several East Asian countries, actively promote proactive judges to try to reach a settle- ment; whereas, for instance, in France and Italy, the applicable legisla- 6 Koch / Schäfer , op. cit., p. 154 to 158. 7 Koch / Schäfer , op. cit., p. 158 ff. The Supreme Court cases cited here show the tendency to not disqualify the judges for having expressed their reactions and evaluations in the pre-trial conference. See also Bernd Ehle The Arbitrator As A Settlement Facilitator , Walking A Thin Line - What an Arbitrator Can Do, Must Do or Must Not Do, Recent Developments and Trends, Colloquium CEPANI40, 29 September 2010, Bruylant, 2010, http://www.lalive.ch/data/publications/Ce- pani_12_THILIN_Ehle.pdf (accessed on 26 February 2016), p. 84.