Originally from American Review of International Arbitration - ARIA

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Some three decades ago, I was charged with the responsibility for identifying
an arbitrator to be appointed by our client in an international arbitration involving
an effort on behalf of our client, a Swiss power company, to escape from what had
become an onerous fuel supply contract for a nuclear power plant in Switzerland
(of which they do not have any today, thanks to a negative voting referendum
some years later). My partner, Henry DeVries, who was also a full-time professor
of law at Columbia, suggested that we consider his colleague, Hans Smit, who, he
said, would be eminently qualified because of his academic and international
background. He added, “Hans is very competitive.” I took this last comment to be
of some importance as a desirable quality in a party-appointed arbitrator.
We were dealing with a dispute under a contract that provided for arbitration
under the rules of the American Arbitration Association. We had been concerned
that if the rules and practices of the AAA were to be followed in the case, we
would end up with a panel of all American arbitrators. Our research into the
Uniform Commercial Code (New York law governed the contract) made us leery
of the consequences of the strict application of the UCC. The cases allowing
contracting parties to escape their responsibilities under long-term contracts on the
basis of changed circumstances (UCC 2-615) were sparse; indeed, there seemed to
be only one, the Alcoa case,1 which gave us only a modicum of comfort.
Consequently, I implemented a strategy of trying to have a tribunal of what I
called “fresh minds,” arbitrators who might look at applicable New York law
outside the blinders imposed by the few decided cases.
Therefore, we sought “fresh minds” in the form of non-U.S. arbitrators. We
requested the AAA staff to offer lists of arbitrators that were consistent with its
practice in international cases of having arbitrators who were not nationals of
either of the parties, in this case, American and Swiss. Following a hearing before
the staff, the AAA accepted our argument and offered a list of proposed
arbitrators, all of them international – non-Swiss and non-American. Many of
them came from far away places such as Sri Lanka and Pakistan and were
unknown to us and, presumably, also to the lawyers for the other side. Since both
parties were not comfortable with the prospect of having the case decided by