Originally from Dispute Resolution Journal

How issue conflicts arise and recent examples of how this type of conflict is being handled by courts, tribunals and international arbitral institutions.

Recent efforts by the International Bar Association and established arbitral institutions to provide detailed guidance on an arbitrator’s duties of independence and impartiality are highly instructive with respect to an arbitrator’s relationships with the parties and their counsel,1 but less so with respect to an arbitrator’s relationship with the subject matter of the dispute. The latter type of relationship, which could involve an arbitrator’s prior statements about an issue in dispute (an “issue conflict”), has been the subject of scant guidance2 and has become the subject of growing controversy over the last few years. This article examines some recent cases in which an international arbitrator has been challenged because of an issue conflict in an arbitration proceeding on which he or she is sitting.3

While issue conflicts can arise in any type of arbitration, the problem has been particularly acute in the field of international investment arbitration. That is due to a number of characteristics peculiar to that type of arbitration. One is that such cases often involve the interpretation of bilateral investment treaties (BITs) containing similar, if not identical, provisions and therefore similar legal issues. Second, unlike most private arbitration proceedings, which involve the application of domestic law identified by the parties in their arbitration agreement, investor-state arbitrations usually involve the application of an evolving body of international law; therefore, arbitrators in international investment arbitration perform more of a “law-making” role. Third, matters of public interest are often at stake in this type of arbitration.4 Fourth, the awards in investor-state arbitrations are usually published and therefore exposed to careful public scrutiny. Finally, the number of international arbitrators with experience deciding investment disputes is still quite small, and these arbitrators are often practitioners who also serve as counsel in similar cases. All of these factors have combined to place the spotlight of issue conflict onto this particular field of international arbitration. The next sections examine how this problem is being addressed in practice.