“Selecting Arbitrators in a Nutshell”, Vol. 19 No. 3 Journal of International Arbitration (2002)


Parties choose international arbitration in part because they know that they will have a role in selecting the arbitrators. In that selection process, there is frequently a delphic preoccupation as to the merits, despite the general acceptance that arbitrators are not entitled to be biased. As a result, one perceives an irritation with interviews on the part of potential arbitrators. However, both tend to obscure more practical points that should be addressed at this second stage of the arbitral proceedings. First, the parties have a right to influence the arbitral proceedings, and the most fundamental way of doing so is by choosing the co-arbitrator and agreeing to-or failing to agree to-a chairman. This is not nefarious, it is the dispute resolution system bargained for by the parties. Secondly, clients prefer to win rather than lose. However, in many cases when they criticize an arbitration, clients do so based on observations regarding the procedure. But in many cases, in selecting the co­ arbitrator, they will not have thought through the type of procedure that they would like to see, They wait until the third stage, when the arbitral tribunal has virtually total control, to realize that the procedure will not correspond to their expectations. Thirdly, experienced international arbitrators still have national training and, perhaps, bias. They have been internationalized to a great extent, but, when dealing with issues at hearings and deliberations, this early training does show itself. That does not mean that they are biased towards the national system, but it does mean that it is still a relevant factor in choosing arbitrators. Fourthly, international arbitration is changing as it adapts to meet new requirements. Indeed, many companies do not choose international arbitration because they are convinced that it is excellent, they choose international arbitration because it is perceived as being more neutral and flexible than national courts in an international context. In choosing the arbitrators, one seeks to ensure that the process itself continues to adapt to international needs so that it corresponds more closely to the needs of the users. Finally, the success of international arbitration depends on a careful choice of the arbitrators within the legal strictures described in the IBA Rules and national case law. Those strictures must be observed because they are fundamental to the supportive approach given by most national courts to international arbitration. However, within those limits, more can be done to make sure that international arbitration corresponds to the parties’ legitimate expectations and to ensure a meaningful exercise of the basic right to appoint the co­arbitrator and to agree on a chairman.