Does the Applicable Law Influence Arbitrator Selections? Reflections on Party Choices and Arbitrator Practice - Chapter 6 - The Arbitrator's Initiative: When, Why and How Should It Be Used? - ASA Special Series No. 45
The potential for parties to select and influence the composition of the tribunal is often heralded as one of the benefits of arbitration for the resolution of commercial disputes. The tribunal may be composed of one or three experienced arbitrators from any number of jurisdictions. In a panel of three arbitrators, at least two are often carefully selected by the parties for their particular characteristics. Professor Martin Hunter encapsulated the view of many arbitration counsel as follows: “Where I am representing a client in an arbitration, what I am really looking for in a party nominated arbitrator is someone with maximum pre-disposition towards my client, but with minimum appearance of bias.”
The tribunal is generally obliged to determine the dispute in accordance with the substantive law or the rules of law, which the parties have agreed should govern their relationship. Whilst there may be other relevant laws or policy considerations, which it is necessary for the tribunal to consider, it is usually the applicable or governing law to which the parties are likely to pay the most attention when selecting an arbitrator. However, it does not follow that the parties will automatically nominate an arbitrator who is trained, qualified or practicing in the law to be applied to the substance of their dispute. Arbitrator Gabrielle Kaufmann-Kohler noted in a 2005 article that she had “resolved disputes under German, French, English, Polish, Hungarian, Portuguese, Greek, Turkish, Lebanese, Egyptian, Tunisian, Moroccan, Sudanese, Liberian, Korean, Thai, Argentinian, Colombian, Venezuelan, Illinois, New York…and Swiss law,” but that the only two laws, which she “knew” were New York law (which she had learnt many years before) and Swiss law, (which she practises, “but not that often”). In the eleven years since that article, one might assume that another law or two may have been added to the already lengthy list. Ms. Kaufmann-Kohler’s experience in applying laws, which are unknown to her is not unusual.
This article reflects on the factors, which parties may consider when choosing an arbitrator, including the reasons why a party may make a deliberate choice to nominate an arbitrator who is not qualified in the applicable law. It continues to consider the role that the applicable law plays in the determination of disputes, the implications of a party choosing an arbitrator who is not qualified or trained in the applicable law, and the ways in which such an arbitrator may respond to the fact that they must discharge their mandate to determine the dispute in accordance with the chosen law.