Originally from: Lowenfeld on International Arbitration

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The Arbitrators

Andreas F. Lowenfeld

5. THE PARTY-APPOINTED ARBITRATOR IN
INTERNATIONAL CONTROVERSIES: SOME
REFLECTIONS

      I want to try here to say something about an important aspect of
arbitration rarely talked about except abstractly — the role of the
party-appointed arbitrator. It is a delicate subject, in several respects.
My hope is to go beyond pious platitudes without violating the
confidential nature of arbitration. Though my primary profession for
more than a quarter century has been that of an academic, I believe I
have had enough opportunities to serve as an international arbitrator
— about two-thirds of the time party-appointed — to make my
experiences worth sharing. Thus, this essay is deliberately personal
and anecdotal, though nonetheless serious.

I. Selecting One’s Arbitrator

      Some years ago, my then dean called me up to inform me that he
had been contacted by the senior partner of a prominent law firm,
who was looking for an arbitrator for a major international
arbitration. Apparently I had been suggested as a possible arbitrator,
and the lawyer was checking with his friend the dean. “I told him,”
the dean said, “that you were very smart, very hard-working, very
experienced, well known abroad, and with a good sense of procedure
and a good feel for the elements of a commercial transaction. ‘If you
have a good case, you couldn’t do better than appointing Professor
Lowenfeld.’” I never heard from the firm. The last sentence, while
flattering to me, was the kiss of death. The dean did not say,
“Whether your case is good or bad, Professor Lowenfeld will be in
there, fighting for your side.”
      The story highlights a critical question about the selection of partyappointed
arbitrators, and about their role once they are selected. Was
the dean’s friend right to reject someone he could not count on to
support him, come what may? I don’t think so, on two quite separate
levels. On one level, easy to state in the abstract, an arbitrator is a
judge, not a member of a party’s team. While he or she is expected to
be receptive to the position of the party that appointed him or her, an
arbitrator is not supposed to approach a controversy with mind made
up. I can state that while I have had suspicions now and then that a
party-appointed arbitrator approached the case with a sense of
mission, I have only once had the experience, in a case in which I was
chairman, where when my fellow-arbitrators said “we,” it was not clear
whether they meant “we, the tribunal” or “my client and I.”