Arbitrator Selection - Shining Light On A Dark Art

Legal News & Analysis - Asia Pacific - Dispute Resolution

5 October, 2018

 

Of the many Dark Arts associated with the practice of international arbitration, one of the darkest is the process by which arbitrators are selected and nominated by parties. Recently, “intelligence” initiatives have been introduced with the aim of shining a light into this dark process. These tools are marketed as being of assistance to help parties or advisers who are not steeped in arbitration lore to make better-informed proposals. A further goal is, perhaps, to encourage greater diversity in arbitrator appointments by making better information available about candidates, to parties who are looking for arbitrators to appoint.

 

The IBM principle

 

Instinctively, many practitioners feel more comfortable nominating an arbitrator already known to them, either from a previous case or from the “conference circuit”. Equally, many will prefer to nominate an arbitrator who shares (or whom they believe will share) an approach to the law in a particular area. Another important factor – particularly in nominating a three- person tribunal – is the influence it is thought that the party-nominee may wield in the tribunal as a whole.

 

The result in many cases is that arbitrator selection proceeds on the “IBM principle” – the idea that one can never go wrong picking a known quantity with brand recognition.

 

This has led to the perception that dominance of the appointment market by a small group of well known arbitrators makes it hard for younger or more diverse candidates to be appointed, as well as generating a sense of arbitration being a closed shop, and further that there are no objective mechanisms to verify how well an arbitrator’s brand matches their performance.

 

How much assistance are the new tools in addressing these perceptions? And how much store does the arbitration practitioner community set by this type of transparency initiative?

 

Proposed intelligence offerings

 

Biographical information about an arbitrator gives little by way of insight into their likely approach either to the substance or to the procedure of the arbitration. That gap is most often lled by “inside information”. Indeed many practitioners in large rms will cite their collective market knowledge and experience as a clear advantage to their instructing client.

 

GAR’s Arbitrator Research Tool aims to give a nominating party access to those who can provide a level of insider knowledge about a proposed nominee by providing details of the co- arbitrators, and the counsel who have appeared before an arbitrator. Without it, a nominating party would not have access to that experience. 

 

“Puppies or kittens” is a concept used in an article rst published in early 2016 in the Austrian Yearbook of International Arbitration by Lucy Greenwood, Michael McIlwrath and Ema Vidak- Gojkovic. Their proposal was that arbitrators could be asked – by way of a questionnaire – to give an in-principle view about various aspects of the procedural conduct of the process, which would then provide valuable information to nominating parties as to what to expect from those nominees in terms of, for example, their preference when it comes to disclosure, and the use of a tribunal secretary.

 

When discussed by a panel of well-known arbitrators at a GAR conference in 2016, there was deep resistance to the idea that arbitrators should commit in advance to a binary preference on these matters, instead of proceeding on a case by case basis by reference to the needs of the particular process.

 

GAR’s own report on the conference noted the irony that whilst the arbitrators present were reluctant to commit to a position in the way proposed in the “puppies or kittens” article, they nevertheless expressed strong views on some of the relevant aspects of procedure in the course of their remarks at that event.

 

Another proposal takes the form of post-hearing feedback, either to the institution, or to a third- party aggregator of the feedback, to provide access to views on an arbitrator’s performance in a particular case.

 

The horror of a “TripAdvisor for arbitrators” is deep amongst arbitrators, many of whom express concern that it is inevitable that the views of the arbitrator(s) provided by a losing party will be in uenced by the party’s success (or lack thereof) in the proceedings. Institutions also say that they rarely get post-hearing feedback from the parties such that it is hard to build a database of useful information.

 

A more neutral feedback option may be supplied by Arbitrator Intelligence (developed by Professor Catherine Rogers with Wolters Kluwer) designed to bridge the knowledge gap by combining a range of objective and subjective feedback on an arbitrator to produce a report on that arbitrator based on a su cient volume of the data to be a fair assessment of their conduct of proceedings.

 

Arbitrator Intelligence works by asking participants in arbitration to ll in a questionnaire concerning the experience of working with a particular arbitrator(s), and states that its process will avoid the “TripAdvisor” problem by moderating the report by reference to the respondent’s role in the arbitration (and, where possible, by reviewing the award itself).

 

Intelligence required

 

In the 2018 survey of international arbitration users, conducted by Queen Mary University of London and global law firm White & Case, 39% of the respondents to the survey cited the ability to select tribunal members as a key feature of importance to them in their choice of international arbitration. 

 

By Philippa Charles, Partner and Head of International Arbitration, Stewarts 

 

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For further information, please contact:

 

Ruth Stackpool-Moore, Director of Litigation Funding / Head of Harbour Hong Kong

ruth.sm@harbourlf.com