Originally from Investment Treaty Arbitration and International Law - Volume 14

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INTRODUCTION

Ironically, one of the most “roundly criticized” features of international arbitration is one that “remains unregulated.”  It is the practice of double-hatting, whereby “[s]ingle individual actors play multiple roles” in different proceedings, often at the same time.  Lord Goldsmith described double-hatting as the situation in which a private lawyer is on one day a supposedly neutral arbitrator and on the other an advocate dedicated to promoting an argument which could be inconsistent with a decision he in his role as arbitrator in the other case could be called upon to make. 

Lord Goldsmith is not alone in his critical observation; double-hatting has long been the subject of commentary and censure,  and forms the basis of “[o]ne of the most potent critiques of international arbitration.”  This critique is so “potent” because it concerns the impartiality of arbitral decision-making, which in turn affects the legitimacy of the entire international arbitration system. Yet almost none of the instruments governing arbitrator appointments and ethics in international arbitration prohibits the practice of double-hatting.

This article explores the practice of double-hatting and addresses the need for a generally- applicable prohibition on double-hatting. Consistent with the majority of commentary on the subject, this article focuses on the situation in which an individual serves as both an arbitrator and a counsel.