I. INTRODUCTION

That selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award) is, by now, a cliché. It also still happens to be true. This chapter will address the selection process primarily from the vantage point of the prospective arbitrator, although advocates will no doubt draw their own lessons.

 

The aim is to be practical; that is, the guidelines described below are those commonly followed by me when approached to be an arbitrator, and constitute a distillation of over twenty years of experience as an international arbitrator. Many readers may find some of what is prescribed to be impractical i.e. the “easy for you to do” prescriptions of an established arbitrator which are unrealistic for the inexperienced candidate with a reputation yet to establish. But they are the norms that permit an arbitrator to do his work without fear or favor and with an easy conscience.

 

The ultimate purpose of these guidelines is to let one be an impartial adjudicator once selected, whether as co-arbitrator or chairman. All of the major international arbitral rules state that each arbitrator, whether party-appointed or not, is to be “independent,” “impartial,” and/or “neutral.” This minimum standard is also the gold standard. Whether a particular set of rules uses one term rather than another (e.g., the ICC Rules say “independent” but not “impartial”) is, of no consequence (nor, I might add, has it led to meaningful differences in how arbitral institutions apply their standards). Whichever term is employed encapsulates not so much a rule of law as an internalized ethos that is an amalgam of independence and impartiality; in other words, that the arbitrator be able to decide a case on its facts and law in accordance with his best judgment. This ethos means not only that the nominee have no specific relationship with one side to a dispute which would or could appear to jeopardize his impartiality, but also that the arbitrator do nothing at any stage to compromise his impartiality in the eyes of either side. And, that is why the following guidelines may be useful in the arbitrator selection process.