How to Select an Arbitrator

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The selection of an arbitrator is one of the most important decisions made in an investment arbitration.  Parties often ask what factors to consider and how to find information that may assist them in assessing a candidate for nomination to a Tribunal.

Parties consider numerous factors in selecting an arbitrator for a dispute.  Among the most important in an international investment arbitration are: 

  1. the expertise of the arbitrator in public international law and international investment law;
  2. the arbitrator's experience in arbitration, especially investment arbitration;
  3. the arbitrator's experience in the subject matter or specific area of law raised by the case;
  4. language capability, including the ability to read documents relevant to the proceeding, the ability to communicate with counsel and the parties, witnesses and experts, and the capacity to write clear reasons for decisions and awards;
  5. an absence of conflict of interest, and full disclosure of any matter that might be relevant to assessing potential conflicts.  It should be remembered that party-appointed arbitrators are not advocates of the position of the party that appointed them and they must remain independent and impartial at all times;
  6. ability to work collegially with the other Tribunal members; and
  7. availability to address the case expeditiously, including the capacity to travel to hearings and to issue rulings in short order.

Parties and their counsel consider a wide variety of sources when selecting a potential arbitrator. These include: 

  1. the arbitrator's curriculum vitae, and in particular their education and work experience;
  2. decisions and awards issued by the arbitrator;
  3. publications authored by the arbitrator and presentations given by the arbitrator; and
  4. the views of counsel who have appeared before the arbitrator under consideration.

Some parties conduct pre-appointment interviews with a potential party-appointed arbitrator.  Such interviews must be carefully circumscribed and cannot address the merits of the dispute or legal arguments that will arise in the case at hand. Typically, such discussions are limited to verifying that an arbitrator has availability to dedicate sufficient time to the case and does not have a conflict of interest.