Originally from Soft Law in International Arbitration, Second Edition

PREVIEW PAGE

Introduction

1. This Guideline sets out the current best practice in international commercial arbitration in relation to interviews for prospective arbitrators. It provides guidance on:

i. how to respond to a request for an interview by a party prior to an appointment (Article 1);
ii. matters that can be discussed at an interview prior to an appointment (Article 2);
iii. matters that are not appropriate for discussion at an interview prior to an appointment (Article 3); and 
iv. specific arrangements for interviews for prospective sole or presiding arbitrators (Article 4).

2. In this Guideline, references to ‘ex parte communications’ should be understood to encompass oral or written communications, for the purposes of an interview (1) prior to an appointment, between any party and a prospective arbitrator without the presence of the opposing party, and (2) after an appointment, for the purposes of discussions between an appointing party and its appointee in relation to the selection of a presiding arbitrator to the extent that the agreed or applicable procedure provides for the selection of a presiding arbitrator by the co-arbitrators. 

Preamble

1. Two fundamental principles of arbitration are that (1) parties are free to select arbitrators of their own choosing to decide their dispute and (2) the arbitrators are independent and impartial. Most national laws and arbitration rules have specific provisions requiring arbitrators to declare their independence and impartiality at the time of their appointment and to disclose any change to that status if it should occur at any time during the arbitration. Additionally, to avoid creating an appearance of bias or lack of independence during the course of the arbitration, some national laws and arbitration rules require that arbitrators should not have any unilateral communications, including conversations, with either of the parties.

2. The issue of bias, either actual or apparent, or lack of independence, is tobe determined objectively, from the point of view of a reasonable third person who, with knowledge of the circumstances of the case, would conclude that there is a likelihood that the arbitrator, when making a decision, would be influenced by factors other than the merits of the case.

3. In international arbitration it is common practice to have three arbitrators. Each party appoints one arbitrator and then the agreed procedure, rules and/or law(s) usually provide for the party-appointed arbitrators to select, or to participate in the selection of, a presiding arbitrator. As the selection of arbitrators is one of the most important strategic decisions in arbitration, the parties may want to interview a prospective arbitrator before making an appointment instead of relying solely on publicly available information and personal recommendations.

4. Even though such an interview would take place before any appointment was made, purely because it involves only one of the parties and the prospective arbitrator present, it carries with it a risk that the absent party may later use the fact of the interview to challenge the arbitrator’s impartiality and independence, assuming they are appointed. Accordingly, prospective arbitrators should take great care when participating in such an interview to ensure that it does not compromise the integrity of the arbitral process or their impartiality and independence.