Originally from Handbook on International Commercial Arbitration

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The choice of the members of the Arbitral Tribunal is one of the most, if not the most, important decision taken in the tactical and procedural stage of the reference. The pool from which international arbitrators are selected is both large and small. In theory, anyone can be an arbitrator as there are generally no formal qualifications. In practice, the vast majority of international arbitrators have a legal background or training and a relatively small number of arbitrators undertake the vast majority of arbitrations.

Therefore, a party may have been adjudged by an arbitrator before, a party may have appointed the same arbitrator before, counsel may have appointed the same arbitrator before, or the arbitrator may have some knowledge or affiliation with a party to the arbitration. This is more often the case in specialised fields in which the pool of suitably experienced and skilled arbitrators may be limited.

The twin issues of conflicts of interest and apparent bias arise in relation to arbitrator appointments in this context. There is a tension between party autonomy (the right for the parties to “agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings”) and the duty of the arbitrator to act fairly and to avoid any appearance of impropriety (albeit there is not the same “audience” in arbitration).

The ability of a party to appoint one of the decision-makers prompts the parties to seek to appoint an arbitrator who has some disposition to favour the party appointing him, not in an overt and biased way, but because the arbitrator may have a shared cultural background, and as discussed later, he may be predisposed towards extensive discovery that a party sees as important to prove its case. Provided this predisposition does not become bias or prejudice, it is an inevitable feature of partyappointed arbitrators. The concept of party-appointment can often create considerable confusion and concern for the parties unsure what influence is being exercised “behind the scenes” or still worse construing a legitimate question or comment as evidence of partiality.