Two distinguished US international arbitrators recently published an outspoken attack on two distinguished European arbitrators, following their own publication of articles questioning the impartiality of party-appointed arbitrators. So, what was all the fuss about?
The first volume of Arbitration International of 2013 contains an astonishing attack by two of the most distinguished US international arbitrators, Charles N Brower and Charles B Rosenberg, respectively former judge and legal advisor to the Iran-US Claims Tribunal, on two of the most distinguished and experienced European Arbitrators, namely, Jan Paulsson and Albert Jan van den Berg, under the title 'The Death of the Two-headed Nightingale'.
Accusing the European duo of having advocated a presumption that party-appointed arbitrators were "untrustworthy", the US pair attack their several contributions on the subject as "wrong-headed".
So, what was all the fuss about and how could the debate have descended to such a level?
The starting point is an article by Jan Paulsson entitled 'Moral Hazard in International Dispute Resolution', itself based on an earlier lecture in which the proposal was advanced that, in lieu of any arbitrators being appointed by parties, they should all be appointed by the Administering Institution.
This thesis gained support from an article by van den Berg on Dissenting Opinions by Party-Appointed Arbitrators , itself drawing on earlier articles suggesting that party-appointed arbitrators were more likely to issue dissenting opinions in favour of their appointor.
The issue was further developed in a debate at the London School of Economics in November 2010 between Paulsson and Alexis Mourre, in which the latter robustly defended party-appointees.
Not content with Mourre's response, however, Brower and Rosenberg proceed to dissect the opinions of both Paulsson and van den Berg, which they find to be unsupported, and conclude that "the well-established right of the parties to choose the arbitrators and the ability of a member of the Tribunal to express differing views in a dissenting opinion are significant elements of perceived legitimacy".
There is little chance of the long-established contractual right for each party to appoint an arbitrator falling out of use; and any Arbitral Institution that sought to override that right would soon find its business being taken over by others prepared to uphold it.
Parties to International Arbitrations typically find themselves facing a tribunal and an opposing party each likely to be rooted in traditions different from their own. No wonder, then, that they should place great value on the ability to select an arbitrator from, or at least sympathetic to, their own traditions and approach.
But does it go further than mere consolation? It would be naive to think that parties and their lawyers will not at the same time seek to appoint an arbitrator who is going to be sympathetic and perhaps responsive to the arguments and contentions being advanced by that party.
Anyone with experience as a party-appointed arbitrator over a number of years is bound to have encountered fellow party-appointed arbitrators who are, sometimes openly, sometimes overtly, intent on supporting their appointing party: in Paulsson's terminology the "bad apples" of international arbitration. Paulsson considers this situation rare and ultimately self-defeating; but there is no doubt it continues.
There is a problem created by this situation in terms of the proper response of the other party-appointed arbitrator and the Chairman. They will certainly during the course of the proceedings have become aware of the approach being adopted by the partial arbitrator.
In most cases, the problem is readily resolved by the other two arbitrators agreeing or acknowledging that the Award will in effect be given by them and that the inevitable dissenting opinion of the partial arbitrator will be effectively neutralised.
It will be interesting to know how frequently this situation occurs in practice. It is, however, a statistic most unlikely ever to be placed formally on the record.
Of more interest is the role of the party-appointed arbitrator who approaches his task impartially while being aware that he has been selected by one of the parties who may expect some degree of understanding if not support.
What is the basis of such expectation?
Are not all arbitrators intended to act "fairly and impartially" as expressly required by s.33(1)(a) of the English Arbitration Act 1996? The answer is, of course, yes, but nevertheless the view is advanced in Redfern & Hunter, at para. 9.184 of the 5th Edition, that "it is not improper for a party-appointed arbitrator to ensure that the tribunal properly understands the case being advanced by that party".
In a footnote, which has remained unaltered since the authorship of Martin Hunter and Alan Redfern themselves, who are two of the most distinguished arbitrators of their generation, it is explained that "a party nominated arbitrator should do his best to ensure that he himself understands the case being put forward by the party which nominated him and should seek to make sure that the arbitral tribunal as a whole is in the same position".
Redfern & Hunter do not quote any authority other than an earlier article by Murray Smith, which helpfully quotes the views of a number of authoritative commentators including Paulsson and Steven Bond, then Secretary General of the ICC, and Martin Hunter himself.
Hunter is quoted from an earlier paper in which he said, as the representative of one party, that he "looks for a party-appointed arbitrator who has a maximum predisposition towards his client with the minimum appearance of bias".
This characteristically frank observation doubtless expresses what most other party representatives would not say openly but would not dissent from.
A recurrent theme in the literature is communication between a party and its appointed arbitrator or proposed appointed arbitrator.
In the first case, the universal view is that this must not take place and any such communication (which can be assumed in the case of the bad apple) is outside the rules and would be conducted clandestinely.
In the case of a proposed arbitrator who is not yet appointed, however, it is now accepted practice that parties, or more usually their legal representative, may conduct an exploratory conversation, ostensibly to confirm matters such as qualification, experience and availability.
All too easily, such a conversation can stray into the views of the potential candidate on matters that only the interviewer will know the significance of, given that the interviewee is not privy to any of the issues at that stage.
Of course, this raises many ethical issues and dictates the need for considerable restraint. The Chartered Institute of Arbitrators has helpfully produced guidelines on this process that include the interviewee making a record of the conversation.
Each arbitrator will have his own war stories on the subject of interviews. My own include a few uneasy occasions on which the questions seemed too pointed.
However, an overriding reason for not allowing the process to go too far is the possibility, in my own case realised on more than one occasion, that the first interviewer decides to appoint another candidate and there is then an approach either from the other side or from the appointed arbitrators to act as Chairman.
The first interview must, of course, be disclosed. It is likely to be regarded as a ground of disqualification in any subsequent appointment and thus militates against anything going beyond general questions concerning qualifications and availability.
While much of the literature on the role of party-appointed arbitrators emanates from Europe and from the US, it must be recalled that the UK has a strong tradition of arbitrators acting in the interests of the party that appointed them.
Thus, the traditional format for commodity and related arbitrations involving the use of an umpire, initially involves the appointment of two arbitrators who seek to agree the award before any further appointment.
Only if they disagree is the umpire brought in. The procedure still exists under the Arbitration Act 1996, where the umpire may "replace" the party arbitrators, who then argue the case on behalf of the parties before the umpire, who is to make the final decision.
Thus, the notion that arbitrators are under a duty to have regard to the interests of the party appointing them is no novelty and should not be regarded as in any sense unusual or improper.
It might be added as a footnote that the regular influx, at least in the UK, of retired judges into the field of commercial arbitration, potentially creates a problem, in that their tradition while on the Bench is to act entirely impartially and to express any disagreement with the majority without restraint.
Indeed, the great FA Mann castigated what was then known as the House of Lords for their practice of delivering a single speech with which all the judges agreed, pointing out that it was their duty to express their different view-points and dissents.
I suggest that the position in arbitration is entirely different, both in terms of recognising a duty to have regard to the case advanced by the appointing party and in terms of the need for the tribunal, if possible, to agree a single award in the interests of finality as well as clarity.
Whilst our judges are rightly held in the highest regard internationally, they should temper this reputation with a reconsideration of their different role in international commercial arbitration.
By contrast, arbitrators appointed from the Bar or from practising solicitors will have no difficulty in taking on board their duty in relation to the party that appoints them.
The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.
