TOOLS OF THE TRADE – NOVEMBER 2020

In the fourth and final essay of her series on critical thinking and logical reasoning skills, Ms Breitenbach delves into the application of these crucial competences in the complex process of award writing.

How to test and improve the quality of critical thinking and logical reasoning in award writing^[1]

Introduction

The intellectual roots of critical thinking are as ancient as the teaching practice and vision of Socrates 2 500 years ago, followed by the critical thinking of Plato and Aristotle.  In the middle ages this tradition was embodied in the writings of thinkers like Thomas Aquinas and carried over into the Renaissance (15^th and 16^th centuries) by a flood of scholars in Europe who began to think critically about religion, art, society, human nature, law and freedom.  Critical thinking is an intellectual skill that can be applied to any subject, content, or problem – it scrutinises and evaluates thinking for its quality, for its clarity, for its accuracy of structural content and for its precision in articulation.

To be skilled in critical thinking is to be able to take one’s own thinking on any subject matter, dismantle it systematically, and to then analyse each disassembled part thereof, assess it for quality, and then endeavour to improve it.  Critical thinking is therefore an active process of problem recognition and problem solving, requiring inference, deduction, interpretation, and evaluation.  Beyer^[2] offers the simplest definition: ‘Critical thinking … means making reasoned judgment.’

The raison d’être of arbitration is to obtain a fair resolution of a dispute.  Arbitrators have ultimate authority in the matter and are required to think critically to produce fully reasoned awards.

Very little information exists as to what constitutes a reasoned award.  The absence of such information is extremely problematic, especially given the ever-increasing number of arbitrations each year and the significant individual and societal costs that can result from a badly written award.^[3]

An award that fails to provide reasoning that is sufficiently persuasive to the losing party may be taken on review.  Parties are often motivated as much by emotion as by logic, and should a party believe that he or she has not been fully ‘heard’ during the arbitration (a phenomenon often directly affected by the quality of the award), such party might mount a challenge to have the award overturned, even if the prospect of ultimately prevailing is relatively poor.  Empirical studies have shown that ‘the perceived fairness of arbitration hearings significantly predicts litigant decisions to accept an arbitration decision’, which suggests that fully reasoned awards are beneficial to commercial arbitration at both an individual and systemic level.^[4]

The aim of this fourth and final essay in the series on ‘Critical Thinking and Logical Reasoning’ is to apply the most important principles of critical thinking and logical reasoning to the complex topic of award writing.  There is no single standard approach to award writing, but hopefully this article will be useful in increasing the quality of reasoned awards.  The content will cover:

• The elements of reasoning;
• A systematic framework for writing an award; and
• Notes on style and language.

The elements of reasoning

The first step in the process of reasoned award writing is to understand the parts of thinking, or elements of reasoning.  Paul and Elder^[5] identify the most important elements of reasoningas follows:

• All reasoning has a purpose to either settle some question, to figure something out or to solve some problem.^[6]
• All reasoning is based on assumptions and is done from some point of view.^[7]
• All reasoning is based on data, information, and evidence.^[8]
• All reasoning is expressed through, and shaped by, concepts and ideas.
• All reasoning contains inferences or interpretations from which we draw conclusions and give meaning to data.
• All reasoning leads somewhere and has implications and consequences.

Since arbitration awards are legally binding on both parties, this last point viz., that reasoning leads somewhere and that it has implications and consequences, is of vital importance.  The Code of Ethics^[9] of the Association of Arbitrators (Southern Africa) NPC (AoA) stipulates that:

3. ‘Members who act as arbitrators undertake serious responsibilities to the parties as well as the public. Those responsibilities include ethical obligations.’
4. ‘This code contains generally accepted standards of ethical conduct for the guidance of arbitrator.  The aim is to promote high standards and continued confidence in the process of alternative dispute resolution.’

Well-reasoned and articulated awards increase the rationality of the process, it prevents the introduction of irrelevant issues, it decreases the possibility of reliance on unreliable evidence and promotes justice while simultaneously engendering confidence in the disputing parties that the aims of alternative dispute resolution are being met.^[10]

Critical thinking and award writing

Whether we are writing a thesis, an opinion or an award, the classical principles of rhetoric suggest that we follow a broad structural framework to guide the way.

During the classical period, a rather rigid formula was laid down.  This formula is further elaborated on and discussed below in the context of award writing.  Although it offers strong guidelines, it nevertheless can be adapted according to personal preference or case-specific content.  For instance, some writers may prefer to follow a chronological narrative approach, while others prefer to use a systematic framework based on divisio^[11] principles, in which aspects are divided into smaller parts for better clarity.  Personally, I am a strong proponent of the latter.

The classical structural formula consists of five elements:

• Opening or introduction (exordium)

This introduces the reader to the purpose of the document, the role-players, and the context of the discussion.

• Statement of the thesis: Legal issues (divisio)

This offers a summary of the central issues and claims to be supported.

• Statement of the relevant facts(narratio)

This includes all the relevant, significant, and supporting facts.

• Analysis (confirmatio et confutatio)

This includes the confirmatio where the writer explains and defends the thesis, as well as the confutatio, in which the writer anticipates the major objections to his or her points and refutes them.

• Conclusion (peroratio)

This is the last part in which the writer sums up his or her argument with a concluding statement.

I proceed to discuss each of these elements in more detail and propose guidelines to ensure that they are met adequately.

1. The opening (exordium)
   
   Critical thinking involves asking questions to identify and define a problem. The exordium – the opening or beginning – is the platform for this process since it serves as an executive summary that encapsulates critical information about the case. The opening is relatively straightforward, but since it can be comprehensive in scope, it should be brief, clear, and concise
   
   Guidelines, tips, and tools for a meaningful opening
   
   Do a who, what, when, where, why, and how or in what way analysis on your intended opening to see where it could and should be improved.
   
   For example:
   
   • Who is/are the arbitrator/s, who are the parties and who are their representatives or, possibly, witnesses?
   • What are the terms of the arbitration agreement, what arbitration rules apply, what is the nature of the dispute, and what relief or remedy is sought by the parties in their claims or counterclaims?
   • When refers to the timeline or sequence of events, and includes dates and information of contracts or other legal instruments in relation to which the dispute arose, as well as certain procedural dates, such as evidentiary hearings, notices, communications, previous awards, etc.
   • Where did the dispute take occur and where is the arbitration hearing scheduled to take place?
   • In what way did the dispute arise and in what way was the arbitrator appointed?
2. Statement of the thesis – Legal issues (divisio)
   
   The second element of the structural framework is a statement of the thesis.  A thesis is a proposition that is put forward for consideration – one to be discussed and proved and/or to be maintained against objections.  Based on the divisio principle, this element focuses exclusively on legal issues, while factual issues are considered separately in a further element of the process.
   
   According to Strong,[12] the goal in this section is not to discuss the law in a vacuum, but rather to provide a clear analysis of the legal dispute that will ultimately be informed by the material adjudicative facts.  This technique not only brings the discussion of legal issues down to a manageable size, but it also helps the reader understand the materiality of the facts that are presented later in the decision or opinion.  Once the controlling legal principles are identified and determined, those principles will be interpreted and applied to the facts of the dispute during the next phase of this process.
   
   Again, some authorities believe that the summary of facts should precede the summary of legal issues, but there is no consensus on this aspect.  Ultimately, the order of the various sections is a matter of logic and individual preference.  However, most experts suggest writing the summary of legal issues before writing the summary of facts so as to avoid the introduction of immaterial factual information.
   
   Guidelines, tips, and tools
   
   
   • Style
     Adopt a thoughtful and neutral tone to give the parties reason to trust in the integrity of the award.
   • Clarity
     If a dispute gives rise to more than one legal issue, all of the potential issues can either be stated in a single summary paragraph, or they could be split up and introduced separately.  In complex cases the generous use of headings, sub-headings and other types of sub-divisions are advised to increase the reader’s understanding of the structure being followed.  Furthermore, it is best to separate the arguments of the various parties and to clearly reflect on agreed (admitted and undisputed) and disagreed (denied or disputed) issues between the parties.
   • Accuracy
     Check footnotes, references, and citations of legal authorities to ensure correctness.
   • Relevance and significance
     Be thorough and address any relevant and principal claims, defences, errors, or objections that have been raised squarely by the parties, but always keep in mind that not all issues merit lengthy analysis – some can be handled in a relatively succinct manner.  Furthermore, it is not customary or necessary to address everything raised by the parties’ legal representatives in minute detail, since not every point will be equally contentious or relevant.  Stay focused on the main issues.
3. Statement of the factual data – Relevant facts (narratio)
   
   Factual findings are the third element of the structural framework applied to award writing.  The narratio is a recitation of the material adjudicative facts and is an essential part of an award.  It requires an arbitrator to do more than simply recount the evidence – the primary aim is to set out express findings of fact in such a way to showcase how the arbitrator applied logical reasoning in support of the principal legal issues and consequential findings.
   
   Guidelines, tips, and tools
   
   • Relevance and significance
     Although an arbitrator must include all the relevant facts, he or she must avoid introducing any unnecessary facts – additional elements not only slow the reader down but may cause confusion about the scope of the legal principle(s) enunciated in the award.  Focusing on facts ‘that are truly essential as opposed to those that are decorative and adventitious’ allows the ‘conclusion … to follow so naturally and inevitably as almost to prove itself.’^[13]
   • Accuracy
     Ensure that any assertion, claim, or statement is based on accurate facts and avoid adopting any proposed findings of facts submitted by the parties.
     
     It is also important to do a ‘credibility test’ when establishing the probative force of evidence put forward by the parties, and to give reasons for the acceptance or rejection of evidence in the findings.  Credibility is affected by the parties’ knowledge, experience, authority, records and materials, and underlying factors such as bias, intent, and emotional state.
4. Analysis of the legal issues (confirmatio et confutatio)
   
   The fourth element of a classically constructed award involves a detailed analysis and application of the factual and legal issues and describes why the arbitrator has reached the outcome in question.  Analysis and the interpretation of information are perhaps the most essential aspects of critical thinking – it requires focus and the application of a number of core critical thinking and logical reasoning skills.
   
   Confirmatio entails the description of the arguments in support of each party’s position on each issue together with the development of clear reasons to justifying the end result of the analytical process.  Confutatio is a reflection on contradictory or opposing issues, and the development of clear reasons why such issues are considered to have been refuted.
   
   Guidelines, tips, and tools
   • Analysis
     Be sceptical and discriminate between ‘degrees’ of truth/falsity of statements and inferences (i.e. conclusions drawn from facts) presented by the respective parties.  Maintain a healthy cynicism with regard to the intentions of the parties.  For instance, some claimants may be opportunists and some defendants deliberately recalcitrant.  It is therefore important to identify, and undertake a proper examination of, the connection or nexus between a party and the assertions or representations he or she makes in submissions and relies on in documents.
   • Interpretation
     Similarities and differences between the different approaches to the solution of a given problem should be identified and compared, contrasted, and weighed against each other.  Balance probabilities by selecting a conclusion that seems to be the most natural or plausible.
   • Depth and breadth
     Although losing parties may never be convinced that their cause was wrong, they at least are entitled to know why they lost and how the result was reached.  For this reason, the arbitrator must ensure that all the relevant issues are handled cogently and in adequate detail (i.e. depth).  The cogency and depth will be informed by the complexities and difficulties underlying the issues that the arbitrator is required to delve into.  The breadth refers to the consideration of all other relevant points of views and perspectives.
   • Logic
     Re-examine every single argument for the correct logical structure^[14] and double check for the occurrence of irrelevant and unacceptable premises (i.e. fallacies).^[15]  Acceptable and logically sound arguments are then stacked in such a way that it makes sense and builds toward a cogent whole.
5. Conclusion (peroratio)
   
   The final section of a reasoned award involves the holding or disposition (peroratio) of the dispute.  This section usually constitutes a single paragraph or sentence at the end of the award and extends into the issue of fees and costs.  If the issue of fees and costs is at all contentious, it may merit a special sub-section following the legal analysis prior to the conclusion.
   
   This last – and final – part of an award, demands a reflection on the award as a whole.  First, we revert back to the elements of reasoning to ensure that we have reached the goal (purpose) successfully and justifiably within the context of the disputed issues and material adjudicative facts.  Then, finally, we reflect on the standard of our thinking – this refers to the consistent application of intellectual traits that characterise a well-cultivated critical thinker.
   
   These traits include:
   • Fair-mindedness.
   • Intellectual courage and autonomy.
   • Intellectual humility and empathy.
   • Intellectual perseverance and confidence in reasons.

Notes on style and language

Style and language are the final section of this paper.  Beyond the essential elements of spelling, grammar, and punctuation, writing style is the unique way that we express ourselves with our choice of words, sentences, and paragraph structures.

It is fitting to commence this final section of the essay with the following quote from Sir Harold Evans’s gem of a book about the art of writing well:^[16]

‘I appreciate engineers, I wrote a book about their achievements, but I deprecate what they and other techies do to English words.  Hey, these nouns and verbs aren’t bits of silicon you can dope with chemicals (boron, phosphorus, and arsenic), drop into a kiln at 2,000 degrees Fahrenheit, and slice and dice. Words breathe. They need TLC—you know.’

Guidelines, tips, and tools

• Simplicity

Confusing language is full of unnecessary words such as adverbs, adjectives, prepositions, and abstract nouns.  Stephen King once stated: ‘The road to hell is paved with adverbs.’^[17]

The simple rule of thumb is to ration adjectives and raze adverbs.

Adverbs are words like ‘exactly’, ‘precisely’ and ‘really’ and, in most cases, these words can be removed without losing any value.^[18]

Adjectives describe nouns and pronouns and normally attribute some quality to them, such as size, shape, duration, emotion or feeling and contents.

Be sceptical of unnecessary descriptors – although it may offer decorative flair, it slows the pace down and is likely to render the resultant text vague.

• Find your authentic voice

Although award writing deals with facts and the letter of the law, write with ease and understanding and relax into the information.  ‘Writing in your own voice’ is finding the words that you think are most fitting.

Word choices affect the rhythm of your sentences and the final sentence of a paragraph should lead easily into the next.  Read the final document aloud and edit it for tone and aural effect.

• Write economically

Writing should be clear, concise, and effective.

Winston Churchill’s gibe, that Prime Minister Ramsay MacDonald had ‘the gift of compressing the largest number of words into the smallest amount of thought’ aptly demonstrates the pitfalls of ‘gentle grazing over an endless field’.^[19]

• Keep the audience in mind

Knowing one’s audience is one of the fundamental rules of good writing.  Keep in mind that, apart from the parties involved, awards may be read by a number of other stakeholders (often businesspeople and advisers) and, at later stages, even judges of the High Court.  It is often said that the reasoning in an arbitral award is primarily for the losing party – focus specifically on the losing party’s central arguments or submissions and acknowledge their relative merit.  Integrity and fairness ensure that the dignity of all the stakeholders are protected.

Conclusion

In the writing of this final essay, I leaned heavily on the work of Professor Stacie Strong.^[20]  Her paper on ‘Reasoned Awards in International Commercial Arbitration’^[21] was informative, evidently well-researched and proved to be extremely helpful.

This concludes the four-part series of essays on Critical Thinking and Logical Reasoning.  This high order intellectual activity enables us to identify, construct and evaluate arguments and to solve problems systematically.  It is a skillset that can be mastered with focus and deliberate application.  Award writing offers a perfect platform to apply these skills and to hone the quality of clear, independent, and meaningful thinking.^[22]

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