The Party Appointed Arbitrator in International

Arbitrations - Role and Selection

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by A. A. de F I N A *

A COMMON characteristic of international commercial arbitrations, whether ad

hoc or governed by institutional rules, is the utilization of multi-arbitrator tribunals.
Whilst the rules of some arbitral institutions provide that in the absence of
agreement on the number of arbitrators a sole arbitrator will be appointed, 1 the
trend in modern international arbitration is to the utilization of tribunals made up
of three arbitrators. This is particularly so in large and complex arbitrations.
The UNCITRAL Arbitration Rules 2 reflect this trend 3 which is also the
solution adopted in the more recendy promulgated UNCITRAL Model Law.4
Given the prospective nature of transnational commercial disputes where
parties of differing cultural, legal, commercial, linguistic and national backgrounds
may be involved, the facility for the creation of an arbitral tribunal which not only
is collectively neutral, but affords input or potential input reflecting the parties'
different backgrounds, gives the parties to a significant degree of comfort and
confidence in such a tribunal.
In a conventional three-arbitrator tribunal, a tribunal formed by each party
appointing an arbitrator, followed by those arbitrators or an independent appoint-
ing authority then appointing the third arbitrator, will ensure a party has a person
of their own choice hearing and contributing to the determination of their case.
There is also the possibility that an award rendered by such a tribunal is more

* Past President, The Institute of Arbitrators & Mediators Australia; Past President, Australian Centre for
International Commercial Arbitration; Chairman, The Institution of Engineers Australia Standing
Committee on Contracts and Dispute Resolution; Vice President, International Federation of Commercial
Arbitration Institutions; Court Member, Cour Europeenne d'Arbitrage; President, Court of International
Arbitration Australia.
1
For example, Article 8.2 of the ICC Rules of Arbitration; Article .5.4 of the LCIA Rules; Article .5 of the
American Arbitration Association International Arbitration Rules.
2
United Nations Commission on International Trade Law Arbitration Rules (Resolution 31/98 adopted by
the General Assembly on 1.5 December 1976).
3
Ibid. Article .5.
UNCITRAL Model IJIW on International Commercial Arbitration (as adopted by the United Nations
Commission on International Trade Law on 21 June 198,5 at Article 10(2)).

ARBITRATION INTERNATIONAL, Vol. 1.5, No. 4

© LCIA, 1999

381
382 Arbitration International Volume 15 Number 4

likely to be accepted by the losing party. Further, a knowledgeable, competent and

experienced tribunal is more likely to give rise to the proper and efficient conduct
of the arbitral proceedings themselves, and to arrive at a proper outcome. The
facility for party appointment enables selection of tribunal members satisfying such

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criteria.

I. R O L E O F T H E PARTY A P P O I N T E D A R B I T R A T O R

(a) General
On its face, the concept of party appointed or so-called non-neutral 5 arbitrators
and their potential role in an arbitral tribunal may appear inconsistent with a
fundamental tenet requiring matters in dispute to be dealt with by independent
and impartial judges. However, party autonomy, the consensual nature of
arbitration, and the particular ability of the parties jointly to direct and formulate
procedure, allow the parties' expectations to be accommodated in manners
unavailable through judicial proceedings.
A party to a transnational dispute presenting its case before a tribunal which is
of itself composed of persons of differing cultural, legal and language backgrounds
can have legitimate cause for concern that its contentions and arguments might not
be fully understood or appreciated. Consequently, the presence on the tribunal of
a party appointed member who does understand the overall general background
of a party can contribute significantly to ensuring as far as possible justice, equity
and a fair result.
The party appointed arbitrator cannot be an advocate or a servant of the
appointing party but can and should fulfil a positive and useful role. However, that
role is exceedingly delicate and demanding. The slightest excess or impropriety at
best might give rise to lack of confidence or reliance by other members of the
tribunal in the arbitrator or, at worst, give rise to removal of the arbitrator.

(b) Initial Function - Appointment of Chairman or Presiding Arbitrator

It is trite to observe that the character, function and outcome of an arbitration is in
general terms influenced significantly by the chairman or presiding arbitrator of an
arbitral tribunal. In many arbitrations the first and the most important function of
the party appointed arbitrators is the selection and appointment of the presiding
arbitrator. This power arises under the provisions of some institutional rules'' but is
also a common provision in ad hoc arbitrations.

The term 'non-neutral' should be construed only in the sense of being appointed by one of the disputing
parties and such provisions as might properly flow from such appointment. The term does not infer bias or
partiality, which would be a basis for disqualification.
For example, UNCITRAL Arbitration Rules Article 7.1.
 The Party Appointed Arbitrator in International Arbitrations 383

In some circumstances, where there is no majority view by the tribunal or

where the other members of the tribunal authorize, the presiding arbitrator may
become the sole determiner of procedure 7 or of the ultimate issue. 8 Thus, the
selection of the presiding arbitrator assumes even greater importance.

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In addition to enabling the party appointed arbitrators to select a presiding
arbitrator in whom they themselves will have confidence, there is the facility for
the parties to influence, through their party appointed arbitrator, the selection of
the presiding arbitrator. This proposition would appear to conflict with a require-
ment that the members of the arbitral tribunal be independent and impartial.
Deference or referral by a party appointed arbitrator to that arbitrator's appointing
party in matters relating to appointment of the presiding arbitrator could be seen as
giving rise to justifiable doubts as to the arbitrator's impartiality and independence. 9
Under the Federal Arbitration Act of the United States of America, 10 all
members of an international arbitral tribunal are required to be free of bias and
evident partiality. 11 Under the U N C I T R A L Model Law the arbitrator's
independence and impartiality is a mandatory provision. 12 Under French law, a
party's basic defence right is guaranteed and lack of impartiality would lead to a
denial of recognition and enforcement. 13 English law prohibits an arbitrator from
considering that he is an agent or advocate for the appointing party. By accepting
instructions from his appointing party an arbitrator would be acting corruptly.14
However, it is well established and accepted practice that, in respect of a party
appointed arbitrator, there may be extensive communications with a potential
party appointee before appointment, and also in relation to the appointment of a
presiding arbitrator after appointment. Prior to formal constitution of the full
arbitral panel, for example by the appointment of the presiding arbitrator, it is also
accepted that communication between a party and its appointee is permissible in
relation to some procedural matters, for example timetables and the like.
This general practice is reflected in the guidelines 'Ethics for International
Arbitrators' published by the International Bar Association. Under these
guidelines, communications prior to appointment for the purposes of establishing
the suitability and availability of a party appointed arbitrator and of potential third
arbitrators is permitted. 15

See for example, UNCITRAL Arbitration Rules Article 31.2; AAA International Arbitration Rules Article
26.2; Singapore International Arbitration Centre Rules Article 27.3; LCIA Arbitration Rules Article 26.3.
K
See for example, ICC Arbitration Rules Article 25.1; LCIA Arbitration Rules Article 26.3; SIAC
Arbitration Rules Article 26.3.
9
See for example, UNCITRAL Arbitration Rules Article 10.1; ICC Arbitration Rules Article 7.1; LCIA
Rules .5.2.
10
1950 (9 USC).
1
' Standard Tankers (Bahamas) Co. Ltd v. Motor Tank Vessel AKTI438 F.Supp. 153 (1977).
12
UNCITRAL Model Law Article 12(2).
13
French Code of Civil Procedure 1981 Article 1502(5).
14
The Myron [1970] 1 QB 527; Succula Ltd v. Uarland and Wolff [1980] 2 Lloyds Rep. 381.
1,5
Section 5.1: 'When approached with a view to appointment, a prospective arbitrator should make sufficient
enquiries in order to inform himself whether there may be any justifiable doubts regarding his impartiality
or independence; whether he is competent to determine the issues in dispute; and whether he is able to give
384 Arbitration International Volume 15 Number 4

(c) Challenge to Arbitrators

All substantive institutional arbitration rules provide for challenge to an
arbitrator.16 Facility for challenge also exists under most statutory regimes

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governing arbitration procedure. 17 Such provisions, whether by rules or law, are
generally couched in terms which contemplate challenge being made by a party or
parties to the arbitration, including the arbitrator's appointing party. However, they
are not limiting and, at least in the case of the LCIA, expressly refer to '|a] request
of the remaining arbitrators'. 18
It is possible that a party appointed arbitrator may become aware of
circumstances warranting challenge to the other party appointed arbitrator prior
to formal creation of the arbitral tribunal as a whole, or warranting challenge to
either the presiding arbitrator or the other party appointed arbitrator after formal
creation. The arbitrator's duty and obligations to the arbitral process generally, to
the subject arbitration particularly, and to the parties to ensure propriety of process
and the creation of a final and enforceable award, demand that action be instituted.
However, such action can only be taken under the provisions of the governing law
and rules.
It is not appropriate and in fact improper unilaterally to communicate the
concerns or circumstances to one party (for example, the arbitrator's appointing
party) to enable that party to mount a challenge. Provided the arbitrator himself
has the power to institute and make a challenge the onus falls upon the arbitrator
to do so. Otherwise such avenues as are open only to the parties must necessarily
be followed. Any such action taken by an arbitrator against another arbitrator
should only be taken with great care and circumspection, and upon reasonably
certain grounds. A challenge so made but unsustained would ordinarily create
untenable circumstances within the tribunal thereafter, possibly even making
future relationships and therefore conduct of the arbitration impossible.

cont.
the arbitration the time and attention required. He may also respond to enquiries from those approaching
him, provided that such enquiries are designed to determine his suitability and availability for the
appointment and provided that the merits of the case are not discussed. In the event that a prospective sole
arbitrator or presiding arbitrator is approached by one party alone, or by one arbitrator chosen unilaterally
by a party (a 'party-nominated' arbitrator), he should ascertain diat the other party or parties, or the other
arbitrator, has consented to the manner in which he has been approached. In such circumstances he
should, in writing or orally, inform the other party or parties, or the other arbitrator, of the substance of the
initial conversation.'
Section 5.2: 'II a party-nominated arbitrator is required to participate in the selection of a third or
presiding arbitrator, it is acceptable for him (although he is not so required) to obtain the views of the party
who nominated him as to the acceptability of candidates being considered.'
lfi
For example, UNCITRAL Arbitration Rules Article 10.1; ICC Arbitration Rules Article 11; LCIA
Arbitration Rules Article 10.1; AAA International Arbitration Rules Article 8.1; ICSID Arbitration Rules
Rule 9(1).
17
For example, UNCITRAL Model Law Article 12; Netherlands Arbitration Act 1986 Article 1033;
'Uniform' Commercial Arbitration Acts Australia s. 44; Swiss Arbitration Act Article 180.
18
LCIA Arbitration Rules Article 10.1.
 The Party Appointed Arbitrator in International Arbitrations 385

That is not to say that personal relationships within a tribunal must of necessity
be cordial and supportive. Often they are not and there have been some
arbitrations where apparently outright antagonism has existed within arbitral
tribunals, but which nevertheless continued properly to perform their function.19

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(d) Intervention in Hearings
The party appointed arbitrator, sensitive to the particular characteristics of a party
as exhibited in the presentation of its case (but not in any way having regard to the
case itself or its merits), may become aware that the balance of the tribunal is not
properly understanding or appreciating what is being submitted, particularly
because of cultural, linguistic, national or legal differences.
The arbitrator cannot be an advocate, but can assist the balance of the tribunal,
and the parties, by directing a question or questions for the sole purpose of
enabling a proper understanding and appreciation by both the tribunal as a whole
and the parties of those aspects upon which there is apparent difficulty. It is not
improper conduct to direct the parties by questions to matters which the tribunal
or part of the tribunal perceives as important and requiring clarification.

(e) Neutrality and Impartiality

Whilst disputing parties have a right to expect absolute neutrality of an arbitral
tribunal as a whole, and it is fundamental that all arbitrators be and remain
impartial and independent at all times, a distinction can be drawn between
impartiality and individual neutrality of a party appointed arbitrator.
Under some governing laws a party is entitled to challenge an arbitrator on the
same grounds as would be available to challenge a judge in judicial proceedings. 20
However, it is important to recognize that there are significant differences between
the role of a judge and that of an arbitrator. The arbitrator's duties, powers and
responsibilities are determined by the parties and the arbitral institution rules (if
any) governing the proceedings. A judge ordinarily has much wider powers and
responsibilities including those of determining public policy and acting as a servant
of the state.
Where there is the facility for party appointment it is likely that the non-
appointing party will believe that the other party appointed arbitrator will be pre-
disposed towards that arbitrator's appointing party.
Whilst in the past there was some express recognition that a party appointed or
so-called 'non-neutral' arbitrator was not bound to the same level of conduct as the
'neutral' third arbitrator21 to some extent this would appear to have been modified

19
For example, some Chambers of the Iran-United States Claims Tribunal established under the Algiers
Declarations of 19 January 1981.
For example, Swiss Concordat Article 18.
21
See for example, American Bar Association/American Arbitration Association Code of Ethics Canon VII.
22
See for example, American Bar Association House of Delegates Resolution 1990 requiring party appointed
arbitrators to serve as neutrals.
386 Arbitration International Volume 15 Number 4

in recent times.22 However, notwithstanding the position remains, that by the

practices permitted allowing party appointed arbitrators contact and communica-
tion wim their appointing parties in some circumstances, 23 there is not a
requirement for judicial standards of conduct, and this is a principal distinguishing

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feature between judicial and arbitral proceedings.
Thus, there is some leniency in arbitrations as to the neutrality of a party
appointed arbitrator but mere is no such leniency in the absolute requirement of
impartiality and independence whatever the circumstances.
If there is clear bias or lack of impartiality and independence on the part of a
party appointed arbitrator which cannot be negated or corrected, then there are
well established and positive provisions for challenge and removal which must be
applied. 24
The difficulty is in what constitutes 'neutral' and 'non-neutral' behaviour. Even
if a 'non-neutral' arbitrator is perceived to be predisposed towards his appointing
party, in the international commercial arbitration world today where the 'non-
neutral' is an arbitrator of standing and reputation that arbitrator will not allow
predisposition as a reality. In fact, the arbitrator may go to great pains to ensure
that the fact of their appointment by one party will not affect or be seen to affect
the bringing of a judicial and impartial mind to the matters before the tribunal,
perhaps even to the extent of overcompensation.
A particular role of the presiding arbitrator is to ensure that there is neither the
reality nor perception of such predisposition in an arbitrator, and if there is such a
perception (however slight) the presiding arbitrator should ensure that this is
properly negated without creating internal problems within the tribunal, or with
the arbitration itself.

(f) Powers of Arbitrators

The nature and character of arbitration is such that the powers of arbitrators and
the arbitral tribunal are those conferred by the parties, but only insofar as the
applicable law permits. The applicable law will ordinarily be the proper law of
the arbitration agreement and the law of the place of arbitration. These may be
different laws, but collectively must be applied to proper effect. Initially the power
to direct and determine the conduct of the arbitration and such matters as
applicable law, situs, selection of arbitrators, timing and rules rests wim the parties
and may be exemplified in a contractual dispute resolution clause, or in a
submission to arbitration. However, once the tribunal is properly seized of the
arbitration, the powers vested in the tribunal will, to a significant extent, eliminate
or minimize any residual powers in the parties to direct or formulate the
arbitration and the arbitration procedures.

2S
See above, sections Kb) (note 15 and text preceding) and (c).
See section I.
 The Party Appointed Arbitrator in International Arbitrations 387

(g) Duties of Arbitrators

One of the major criticisms of international commercial arbitration has been and
remains what are perceived as inordinate delays in the conducting of an arbitration

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and the rendering of an award. One of the rationales advanced by the
International Chamber of Commerce Court of Arbitration in the review leading
to the publication of the current ICC Rules of Arbitration 25 was to create
procedures which minimize delay. Many institutional rules require the rendering
of an award within certain time limits26 or that the award be made prompdy. 27
There is understandably in the context of commercial disputes a desire on the
part of the parties (or at least the claimant) for an arbitration to be conducted
expeditiously. Such expedition must, of course, be tempered by, among other
things, issues relating to the size and complexity of the dispute, and the obligation
to treat the parties with equality and to ensure that each party is given a full
opportunity of presenting its case.28
In accepting appointment an arbitrator is now more than ever in an
environment where expedition is expected and fhus bound to ensure that the
necessary time and involvement to meet the timetables is absolutely committed. It
is not sufficient or proper to attempt to order proceedings to meet the obligations,
desires or convenience of the tribunal or some of its members. It is the parties'
needs that must be satisfied within the context of proper conduct. Certain duties
may also be imposed upon arbitrators by the rules and governing law, whether
substantive or procedural, and arbitrators must be cognizant of and prepared to
commit and submit to those duties. Additionally, an arbitrator has a duty to act
with due care, due diligence and judicially. Some obligations may be seen to be as
much 'moral' obligations as imperatives of law.

(h) Procedural Conduct

Subject to die express will of die parties and limitations diat may be imposed by
law an arbitral tribunal has significant determinative powers in respect of
procedure. 29 Particularly where die parties to a dispute are from differing cultural,
legal and linguistic backgrounds, determinations, directions or orders made by die

'' As in force from 1 January 1998.

2(1
For example, ICC Arbitration Rules Article 24.1.
27
See for example, American Arbitration Association International Arbitration Rules 1 April 1997, Article
27.
28
e.g., pursuant to UNCITRAL Arbitration Rules Article 15.1; AAA International Arbitration Rules Article
16; ICC Arbitration Rules Article 15.2.
29
For example, under the UNCITRAL Arbitration Rules, the tribunal can
(a) by Article 15.1 decide the conduct of the arbitration;
(b) by Article 1.5.2 decide whether to have hearings;
(c) by Article 16.1 absent decision by the parties, to decide on place of hearing;
(d) by Article 16.2 in the absence of decision by the parties, decide on the locale within a country;
(e) by Article 16.3 decide to meet for inspections, etc.;
(f) by Article 17.1 decide the language of the proceedings where no agreement exists;
388 Arbitration International Volume 15 Number 4

tribunal in the course of proceedings may potentially be seen as affecting or

actually effecting the manner in which a party conducts or intends to conduct its
case, which may even lead to a loss of confidence in the tribunal.
The role of the party appointed arbitrator in these situations is to ensure that

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such decisions as are made and the manner and terms of the conveyance to the
parties are such that, without detracting in any way from their intended effect, they
do not offend or improperly prejudice a party. Thus, the party appointed
arbitrator must be ever vigilant to ensure that the manner in which the tribunal
conducts the proceedings and gives directions or orders is not inconsistent with the
ability of a party to understand and put into effect any such directions or orders.

(i) Award
The universal and common wisdom that a losing party should by the terms of an
award understand clearly and unequivocally why its case was not accepted by an
arbitral tribunal imposes particular duties on an arbitral tribunal where an award is
rendered in a language which is not the language of the losing party and in
circumstances where the tradition, culture and linguistic background of the losing
party may be inconsistent with the arbitration. The arbitrator appointed by the
losing party therefore has a particular duty to ensure that any award rendered is
couched in terms and where necessary deals with idiosyncratic aspects of the
dispute necessary to ensure, as far as possible, that the losing party does fully and
completely understand the reasons for its lack of success.
Arbitrators invariably have different styles in the preparation of awards. Some
styles are clearly identifiable with particular arbitrators. Whilst ideally an award
should be written in completely neutral and overall consistent terms it is common
practice for individual arbitrators making up a tribunal to prepare individual
sections of an award.
It can sometimes assist in acceptance of the award, although it is recognized that
it may be undesirable, given that an award should express the same neutrality as
the neutrality of the arbitral tribunal collectively, for a losing party to know that
there was significant (even possibly identifiable) input by their appointed arbitrator
in the rendered award. These comments are, however, predicated on the publica-

cont
(g) by Article 17.2 order documents, translations, etc.;
(h) by Article 20 allow or disallow amendments to pleadings;
(i) by Article 21.1 rule on objections to jurisdiction;
(j) by Article 21.2 rule on the existence or validity of a contract;
(k) by Article 21.4 rule on jurisdiction at any time;
(1) by Article 22 allow further statements and to set time limits;
(m) by Article 23 extend time limits;
(n) by Article 24.2 order summaries of documents;
(o) by Article 24.3 order production of documents;
(p) by Article 25.3 make arrangements for translation;
(q) by Article 2,5.4 order retirement of witnesses;
(r) by Article 2,5.6 determine admissibility, weight etc. of evidence.
 The Party Appointed Arbitrator in International Arbitrations 389

tion of a unanimous award. Most institutional rules provide for majority awards.30
Similarly, a provision in most ad hoc arbitrations allows for majority awards.
Although a dissenting opinion by a party appointed arbitrator will be of no effect in
respect of the substantive award issued by a majority, a dissenting award issued by

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the arbitrator appointed by the losing party may give some degree of solace to mat
party and may vindicate the confidence given by that party in the appointment of
the arbitrator.

II. S E L E C T I O N O F A N A R B I T R A T O R

(a) General
As may be perceived from the previous discussion on the role of a party appointed
arbitrator, a very fine line divides mat conduct which is acceptable and appropriate
and goes towards facilitating and benefiting the arbitral process and mat conduct
which may either slow the arbitral process down, cause it to stop altogether, or
result in an unenforceable award. A further difficulty in making distinctions
between acceptable and unacceptable conduct is mat there is no absolute
definition and conduct which may be perfectly acceptable in some circumstances,
may be totally unacceptable in other but very similar circumstances. There is also
the natural desire on the part of disputing parties to create a tribunal which they
perceive may or will give some advantage to their cause, or disadvantage to their
opponents. Thus in selecting an arbitrator each party may face dilemmas similar to
those faced by arbitrators but in a different context.

(b) Distinctions between Arbitration and Judicial Proceedings

In most arbitrations and certainly in nearly all large and complex arbitrations,
selection of a party appointed arbitrator will be guided or made by a party's legal
representative. In judicial proceedings it is very unlikely that parties will have any
control over who will be the judge.
In arbitration the ability, with some limitations, to create a tribunal of the
parties' choice and to affect the character and ability of the tribunal so formed
makes arbitrator selection crucial. The facility of the parties to create a tribunal
with the expertise, knowledge and experience perceived as necessary to deal with a
particular dispute requires great consideration, particularly as international arbitral
tribunals are rarely subject in their conduct to independent judicial scrutiny by way
of an appeal.

For example, see UNCITRAL Arbitration Rules Article 31.1; ICC Arbitration Rules Article 25.1; AAA
International Arbitration Rules Article 26.2; LCIA Rules Article 26.3.
390 Arbitration International Volume 15 Number 4

Unless a party has sought to set aside the award, only when recognition or
enforcement is sought before a national court is there an opportunity for any form
of review and then rarely if ever on the merits. 31

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(c) Restrictions
Many specialized trade, commodity and shipping contracts impose requirements
which act as limitations upon the person who may be chosen as arbitrator. Such
requirements may stipulate that an arbitrator must be a person engaged or who has
been engaged in the trade, 32 or that the arbitrator must be a 'commercial person'. 33
Such restrictions ordinarily apply to appointment of sole arbitrators and are
limited to specialized areas. However, such stipulations are much less frequent in
dispute resolution clauses in major contracts where international commercial
arbitration is contemplated. This is sensible since it is difficult to anticipate the
nature and particular subject matter of a dispute arising in the future, and it is far
more appropriate to select an arbitrator once a dispute has actually arisen so that
due consideration can be given to ensuring the formation of the most appropriate
tribunal in the circumstances.
Some restrictions on who may be appointed as arbitrator may be imposed by
me applicable law. For example, under Spanish law, a practising lawyer must be
appointed as arbitrator if the dispute is to be resolved as a matter of law (as
opposed to at equity or as amiable compositeurs).3i
Some limitations may be in the negative; for example Swiss law prohibits
exclusion of lawyers from the arbitral process (including acting as arbitrator).35

(d) Language
T o afford a proper appreciation of written materials and submissions, and oral
presentations made to an arbitral tribunal, it is essential that each member of the
tribunal has an adequate knowledge of the language of the arbitration. Adequate in
the sense of an arbitration includes an ability to understand the subdeties and
idiosyncrasies of the particular language. In a multi-arbitrator tribunal there is the
opportunity for clarification on matters of interpretation and understanding as
between the members of the tribunal, but that should not be applied in the
extreme as leading to consideration of appointment of an arbitrator with very little
knowledge or understanding of the language of the arbitration.

For example, see Article 5 of the United Nations Convention which deals with the recognition and
enforcement of foreign arbitral awards, which makes no provision for any such review and is limited to
procedural and jurisdictional defects.
32
See for example, GAFTA Arbitration Rules Rule 3.2.
33
See for example, Pando Compania Naviera S.A. v. Filmo S.A.S. [197.51 1 QB 742.
:u
_ Article 12(1) Spanish Arbitration Act 1988.
Swiss Concordat Article 7. However, there is no similar provision under the Swiss Private International Law-
Act Ch. 12, which governs international arbitrations.
 The Party Appointed Arbitrator in International Arbitrations 391

Although it is common practice to utilize the services of interpreters, for

example in translating witnesses' statements oral or written, in most instances
incorrect interpretation can be the subject of immediate challenge and correction.
However, unilateral interpretation in camera for the benefit of the arbitrator is not

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subject to this form of safeguard.

(e) Education, Training and Experience

A party to an international arbitration must perceive that the process and the
tribunal to which they have submitted their dispute does not have an inbuilt
cultural or social bias against it whatever the applicable governing law or arbitration
rules.
Although perhaps more relevant to the presiding arbitrator in a tribunal, given
the influence and conduct of a party appointed arbitrator in modern arbitrations,
knowledge and experience in the law and practice of international commercial
arbitrations is paramount. Whilst in-depth knowledge of arbitration law and
practice may be principally limited to lawyers, such knowledge will not of itself
suffice in the absence of practical experience in the conduct and control of
arbitrations. An otherwise knowledgeable academic lawyer unable to control
proceedings will do no service to the arbitral process generally or to a particular
dispute.
Many large international commercial arbitrations have as subject matter
technical or commercial aspects which require determination. Contested issues of
fact may require, if not an in-depfh expertise in the subject matter, at least sufficient
knowledge to understand the evidence and issues in areas which may be
unfamiliar to a lawyer. This is particularly so in areas of science and technology,
and modern aspects of trade and commerce. However, parties should be wary of
appointing technical arbitrators who have no experience in arbitration. The
appointment of a specialist scientist highly knowledgeable in the scientific issues in
dispute will not necessarily avail a proper outcome or appropriate conduct of the
arbitral proceedings.

(f) Standing and Reputation

Although possibly going to the perpetuation of a relatively small source from
which potential arbitrators might be drawn, the standing and reputation in the field
of international commercial arbitration of a prospective arbitrator is a valuable test.
Arbitration is for the most part a private and confidential process, but there is no
impediment to enquiry as to prospective arbitrators from practitioners in the area.
Intelligence gathering independent of enquiry directiy to the prospective
appointee can prove valuable. Whilst a losing party or losing counsel in other
arbitrations may be dissatisfied with outcome, it is likely that an objective
commentary on an arbitrator's general performance in that arbitration can be
solicited. Such intelligence gathering can include sourcing from biographical
information, books and articles and other anecdotal sources. In particular, the
writings of a prospective appointee can give great insight as to the matters that may
392 Arbitration International Volume 15 Number 4

be relevant to the particular arbitration. For example, an arbitrator's writings may

reveal the prospective appointee's thinking on proper conduct of an arbitration
and knowledge of procedural law, and may extend to aspects of the particular
substantive law.

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(f) Interview
Although a possibly costly exercise, but one which might be both appropriate and
justified in the context of a particular international arbitration, is an interview of
prospective arbitrators. The circumstances of such an interview must be carefully
orchestrated and controlled, particularly in the case of a prospective party
appointed arbitrator.
Whilst interview for a sole arbitrator may properly be conducted by both parties
to an arbitration, the nature of a party appointment will mean in most instances
that only the appointing party through their lawyers will conduct the interview.
Nothing can be done or said at such an interview which may prejudice the
prospective appointee if ultimately appointed, or which might give rise to challenge
and disqualification. An interview must therefore be limited to such matters as
availability, conflict, experience, training, qualification, specialist expertise and the
like. Under no circumstances can aspects going to the nature of the dispute or its
merits be raised or canvassed even indirecdy. In any event, the interview should be
carried out only by counsel for a party and in the absence of that party. Whether
or not to conduct an interview is a very delicate and possibly controversial issue,
particularly as it would ordinarily be appropriate to compensate for out of pocket
expenses and to pay some fee for attendance. However, this is now a relatively
common practice, particularly in very large and complex arbitrations, and appears
to work to benefit of and without compromising the arbitral process*

III. C O N C L U S I O N
The role of the party appointed arbitrator in modern international commercial
arbitration is an extremely difficult one, requiring great knowledge, ability and
integrity to ensure that all that is properly and necessarily required to be done in
protecting the integrity and outcome of the arbitral process is done without
stepping over the fine line leading to impropriety and disqualification or removal.
The selection of a party appointed arbitrator must take into account the
personal qualities and abilities required of the party appointed arbitrator in
fulfilling the particular role, as well as gaining such benefit to the appointing party
as may properly be achieved. The issues are not simple, and the answers not easy.
Differing circumstances will give rise to differing considerations. Ultimately the
arbitral process is tested by the outcome by way of the award, and the parties'
perceptions of the conduct of the arbitration, win or lose. The arbitrators selected
for any arbitration are the determining factor, and the party appointed arbitrator's
role is fundamental in achieving a proper outcome.