The issue of “repeat arbitrators” in international arbitration has garnered both recent comment and controversy in equal measure.  In the process, a good deal of confusion has been caused with no definitive solution being offered.

 

Comment and controversy are perhaps inevitable in this area.  Repeat arbitrators impact upon what many view as two cornerstones of the arbitral process: party autonomy and (perceived) fairness.  The freedom of parties to appoint their own adjudicator to a three-person panel is viewed as a key benefit of arbitration over litigation. Limiting repeat appointments would restrict this party autonomy and thus negate a perceived fundamental advantage of the arbitral process.  Furthermore, this freedom helps to legitimize the authority of the final award in many cases by affording the parties ownership of the dispute resolution process and an active say in how the dispute is substantively decided.   At the same time, allowing a party to appoint an arbitrator perceived as biased undermines the legitimacy of the arbitral process in a different but equally destructive way.  Proof, or legitimate perceptions, of bias not only destroy the integrity of the eventual award but also threaten the reputation of international commercial arbitration as a credible and reliable dispute resolution method.

 

This issue thus looks set to remain an area of some controversy.  However, the current state of confusion is far from inevitable.  Indeed, as this paper discusses, it is probably an unnecessary consequence of the failure by certain commentators, arbitral institutions and national courts to properly confront, in any detail or with any consistency, the fundamental issues that repeat arbitrators present to the arbitral process.  Too often, the arbitral community has tried to run before it can walk, with much of the commentary on this issue focusing on the “disclosure dilemma,” i.e., whether, and to what extent, arbitrators should disclose prior appointments or relevant published views. This focus is understandable given that such disclosure offers the primary opportunity to highlight prior appointments and also a safeguard against any bias such appointments may evidence.  This paper, however, adopts a different approach and takes something of a step back by looking anew at the underlying legal framework and its application by previous tribunals and national courts to the controversial issue of repeat appointments.  In so doing, this paper offers a detailed analysis of the underlying rationale for why repeat appointments present a problem, with a view to drawing a more expansive but nuanced conclusion and proposing a more definitive solution going forward.