Originally from World Arbitration And Mediation Review (WAMR)

Preview Page

I. INTRODUCTION
Two of the most well-regarded and distinguished members of
our profession – Professors Jan Paulsson1 and Albert Jan van den
Berg – recently authored articles that seemed to presume that
party-appointed arbitrators are untrustworthy in that they may
be too prone to violate their mandate to be and to remain
independent and impartial. Their articles attacking party
appointments and dissenting opinions are like Siamese twins,
conjoined by an inseverable bond: assumed lack of good faith on
the part of party-appointed arbitrators.3 In our view, however,
such a presumption is demonstrably wrongheaded and
unjustifiably casts a shadow over party-appointed arbitrators.
It goes without saying that we have the upmost respect for
these esteemed colleagues as counsel, arbitrators,4 and scholars.
We question, however, their recently expressed views on these
subjects. In this article, we therefore critique certain
shortcomings we perceive in their theses and further clarify the
importance of party-appointed arbitrators and dissenting
opinions in international arbitration. In our view, the continued
viability of international arbitration, particularly investment
arbitration, hinges on users of the system viewing it as a
legitimate form of international dispute resolution. One
important element of perceived legitimacy is the significant and
timeless right of the parties to choose the arbitrators. Another is
the ability of a member of the tribunal to express disagreeing
views in a dissenting opinion. Restricting these elements, as
proposed by Paulsson and van den Berg, positively would impede
the further development of the field.