Becoming an International Arbitrator: Qualifications, Disclosures, Conduct, and Removal - Chapter I.9 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

Richard M. Mosk is an Associate Justice on the California Court of Appeal. He was judge on the Iran-United States Claims Tribunal. Justice Mosk has taught courses at the U.S.C. Law Center; T.C. Beirne School of Law at Queensland University, Australia; Hague Academy of International Law (the Netherlands); Duke-Geneva University program (Geneva, Switzerland); and has lectured at various law schools and colleges throughout the United States and Europe. He has served as an arbitrator in a number of arbitrations, including ICC arbitrations. He has written numerous articles, including on international arbitration.

Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago Law School. Prior to joining the faculty, he taught law at the University of Illinois, served as a Legal Advisor for the Iran-U.S. Claims Tribunal at The Hague, Netherlands, and was on the law faculty of Kyushu University in Fukuoka, Japan. Professor Ginsburg has served as a Consultant to several international development organizations on legal and economic reform.

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Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

This chapter discusses the qualifications involved in becoming an international arbitrator, the appointment process, disclosure requirements, arbitrator ethics with the parties and each other, challenges to arbitrators, resignation and replacement of arbitrators, and financial and liability issues.

§ 9.01 In General

[1] The Growth in the Market for Arbitrators

Not so long ago there were few individuals who specialized in arbitration--either domestic or international. Just a few multinational law firms engaged in the practice of international arbitration. Only a small number of well-known and well-connected individuals were called upon to act as arbitrators in significant international arbitrations.1 Concomitantly, there were few international arbitral institutions. The most prominent, the International Court of Arbitration of the International Chamber of Commerce ("ICC"), had 100 requests for arbitration filed in 1968, as compared with 793 in 2010.2

Increased international trade, reduced political and trade barriers, the growth of multinational law firms, and the expansion of alternative dispute resolution have all contributed to the growth of international arbitration. Businesses recognized that resolving disputes through international arbitration was preferable to being a party in a foreign court; lawyers became more sophisticated in drafting dispute resolution clauses; more nations acceded to the New York Convention on the Enforcement of Foreign Arbitral Awards of 1958 ("New York Convention")3 making enforcement easier; and the establishment of the Iran-United States Claims Tribunal in 1981 exposed many American lawyers, who previously had no experience, to the field of international arbitration. As the popularity of international arbitration grew, many countries modernized their national laws on arbitration, and new international arbitral institutions have developed. Governments increasingly are requiring international arbitration in investment and trade treaties.4 More and more businesses are providing for arbitration in private agreements.

Table of Contents:

§ 9.01 In General
[1] The Growth in the Market for Arbitrators
[2] Considerations in Selecting an Arbitrator
[3] Enhancing the Prospects of Becoming an Arbitrator

§ 9.02 Appointment Practices
[1] Methods of Appointment
[2] Party Appointment
[3] Appointment of Arbitrators absent Party Agreement
[a] Ad-hoc Arbitration
[b] Institutional Arbitration
[c] Judicial Appointment

§ 9.03 Qualifications of Arbitrators
[1] Nationality
[2] Language
[3] Occupation
[4] Availability and Competence
[5] Experience
[6] Restrictions
[7] Independence and Impartiality

§ 9.04 Independence and Impartiality
[1] Applicability
[2] Impartiality and Independence Distinguished
[3] Standards of Impartiality and Independence
[a] General
[b] Appearance of Impartiality
[c] Suspect Factors
[d] Non-disqualifying Factors
[e] Institutional Practice

§ 9.05 Role of the Party-Appointed Arbitrator
[1] Distinction between International and Domestic Arbitrations
[2] Proper Role of the Party-Appointed Arbitrator

§ 9.06 Disclosure Requirements
[1] Introduction
[2] Ethical Codes and Arbitral Rules
[3] Legal Requirements

§ 9.07 Objections and Challenges
[1] What Generally Happens When an Arbitrator Is Challenged
[2] Procedure under Arbitral Rules
[3] Challenges under National Law
[a] Pre-Award Challenges
[b] Relationship between Institutional Rules and National Laws
[c] Challenges to Enforcement of the Award

§ 9.08 Resignation, Removal and Replacement of Arbitrators
[1] Resignation
[a] Reasons
[b] Compensation
[c] Rehearing
[d] Reputation
[2] Removal
[3] Replacement

§ 9.09 Communications with Parties
[1] Introduction
[2] Pre-appointment Communications
[a] Scope of Communication
[b] Arbitral Rules
[c] Solicitation
[3] Communications regarding Selection of Third Arbitrator
[4] Ex Parte Communications during Proceedings and Confidentiality of Deliberations
[5] Post-Award Communications
[6] Post-Award Representation

§ 9.10 Relations with Other Arbitrators
[1] General
[2] Communications among Arbitrators
[3] Truncated Tribunal
[4] Separate Opinions

§ 9.11 Arbitrator Liability
[1] Arbitral Immunity
[2] Unauthorized Practice of Law

§ 9.12 Compensation and Financial Issues
[1] Fee Arrangements
[2] Expenses
[3] Taxes

§ 9.13 Conclusion