c How to get (or not to get) the right arbitrator (p 273)

a) Hacking, “Well, did you get the right arbitrator?” (p. 273)

• In international arbitrations, arbitrators are either appointed by the parties or by one of the international arbitration institutions (e.g. ICC, LCIA, AAA). When appointing arbitrators, the institutions go trough a similar process on the line of:

- Is the appointee neutral and independent? - Does he have the right linguistic skills?

- Does he have the right knowledge for applying the governing law of the arbitration?

- Does he have the right professional expertise in the subject matter of the arbitration?

• Most arbitration institutions rules provide also that the appointee shall be suitable for being appointed in the arbitration in question (art. 9.1 ICC, art. 6.4 AAA, art. 7.1 LCIA).

• But according to the author, there is a dissatisfaction in the appointment of arbitrators by arbitration institutions for the following reasons:

- While the arbitration institutions know more than the parties about the arbitrators, they don’t know as much as the parties about the dispute (e.g. is technical expertise needed).

- There is insufficient information known about the availability of the arbitrators for conducting the arbitration on a reasonable timetable.

- There is a lack of knowledge about the personal qualities of the prospective arbitrator (does he have good management skills, is he good on procedural issues, is he sound in judgment, is he up to the job of being arbitrator in this arbitration?).

• Some of the difficulties arise out of the different ways institutions select the arbitrators:

- The ICC works through national committees: for example, when a French arbitrator is requested, the ICC national committee of France makes the recommendation. Some national committees are good, other not. (Von Mehren does not like this system, in particular because the ICC appoints the arbitrators without really knowing the facts of the case.)

- As to the AAA, the Secretariat of the AAA, after having consulted the parties on the qualities they are seeking in the arbitrator, provides a list to the parties from which they are invited to select their preferences (a list of 10 arbitrators if a sole arbitrator must be appointed and a list of 15 arbitrators if a three person arbitral tribunal must be set up). Each party is given the opportunity to strike out 3 (or 5 in the case of a 3 person panel) without giving reasons. Then, the parties must select in order of preference their preferred arbitrators (1st_{, 2}nd_{, etc). The arbitrator with the lowest}

count is selected. According to the author, the drawback in such a system is that, rather than selecting the arbitrators on the basis of the highest common denominator, it can end up by selecting them on the lowest common denominator. Also, the AAA has no power to refuse to make the

appointment of the “party-chosen arbitrator” even if it knows that he is a lousy arbitrator, which Hacking considers as a lacuna of the AAA Rules. - The LCIA runs its selection on a consultation process in which the

Secretariat proposes to its Board its preferred choice and the Board then decides. This make it hard for new younger and more innovative arbitrators to be selected.

• The same problem prevails when the parties must appoint a sole arbitrator or a third arbitrator. The basic problem in the selection process of the arbitrators is that there is not enough information available to the parties and their advisers. There are directories, it is possible to ask for resumes, but the community of arbitrators can provide more help in the following ways:

- all potential arbitrators should be willing to be interviewed by the parties wanting to appoint them. But the meeting should take place in a neutral place, the merits of the case should not be argued and the arbitrator should, after the interview, make a note and disclose it to his fellow arbitrators.

- Parties can ask to see examples of awards written by the potential arbitrator.

- Parties should ask for references.

- Parties should consider the written publications of a potential arbitrator. Note: Lord Hacking views the selection process in an institutional setting. In ad hoc arbitrations, methods of appointment may be different, but the qualities and characteristics that make an arbitrator acceptable are essentially the same.

Von Mehren’s comments about the possibility to interview potential arbitrators: You can certainly ask general questions (education, previous experience in arbitration etc), but no questions about the facts of the case. The arbitrator should avoid answering hypothetical questions related to the case, because this would involve a kind of psychological commitment toward such position. Can the parties ask if the arbitrator believes in a strict interpretation of the statutes? Arbitrators generally refrain from answering such questions, because it may be considered as a kind of psychological commitment to take such position in the arbitration. Von Merhen says that it is now a universal practice for prospective arbitrators to be willing to meet with and be interviewed by the parties who whish to select them.

b) Nathan, “Well, did you get the right arbitrator?” (p. 278)

• Nathan criticizes the fact that arbitrators from developing countries and women are underrepresented in the arbitration world. What makes a successful arbitration is not the fact that arbitration proceedings and deliberations went smoothly because all were from the same club, but that justice was done although the deliberations were rough an bumpy.

• What are the right linguistic skills to qualify as arbitrator? The ability to address rally with clarity and precision and in perfect grammar, but one should not confuse

advocacy skills with judicial skills. Listening, observing and writing skills are far more important to an arbitrator than oral skills.

• Often, arbitrators from Academia are better qualified to be arbitrators.

• Titles should not be used at all in an international arbitral context because the recognition of these titles places both arbitrators and counsels from developing countries in a disadvantaged position.

• Rather than management skills, what an arbitrator needs is good inter-personal skills.