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The Consolidation Arbitrator – An Arbitrator Too Far?

Whilst many institutional rules now contain provisions which expressly address the complex issue of consolidation, the recently revised rules of the International Centre for Dispute Resolution (the “ICDR”), the international arm of the American Arbitration Association (the “AAA”), are the first to have introduced the novel concept of the “consolidation arbitrator”. Under the ICDR Rules, rather than granting the power to consider and ultimately order consolidation to either the institution itself or a tribunal which has already been appointed in one of the existing arbitrations, a separate, specifically-appointed consolidation arbitrator is appointed for the task.

Whilst this innovation seeks [...]

The Problem of Repeat Arbitrators in Investment Arbitration

The very nature of an arbitrator requires that she or he be imbued with the principles of independence and impartiality, qualities that should never be doubted. Nonetheless, there has recently been an increased number of challenges to arbitrators in Investment Arbitrations subject to the procedures of the International Centre for Settlement of Investment Disputes (the “ICSID”). There is a strong view that the ICSID arbitrators appear to be earning an unfortunate reputation as lacking in the aforementioned independence and impartiality due to, for example, multiple appointments by the same parties or counsel who happen to be called upon to resolve similar disputes or issues at the ICSID. [...]

Negotiation in International Arbitration: Call for Papers

Critical negotiation moments punctuate the entire timeline of an international arbitration, from before it starts to even after it is over. And when these moments arise, a practitioner’s ability to negotiate effectively can sometimes be as important as their mastery of the subject matter.

After all, what use is technical skill if you cannot deploy it to obtain good results?

Instances where practitioners must draw on their negotiation skills in international arbitration include:

Counsel selection and fees: when a dispute first arises, parties may negotiate with counsel who might handle the arbitration, over fee arrangements or the strategy to be pursued.

Arbitral appointments: in getting an a [...]

Belgrade Arbitration Center adopts BAC Rules

2013 saw the establishment of Serbia’s first arbitration institution which is not affiliated to the State – Belgrade Arbitration Center (BAC), created under the auspices of the Serbian Arbitration Association, a non-governmental and non-profit association of legal professionals and other individuals interested in arbitration law and promotion of arbitration.

BAC is the third arbitral institution in Serbia. The two other institutions reside within the Serbian Chamber of Commerce – the Foreign Trade Court of Arbitration (FTCA), which administers disputes containing a foreign element, and the Permanent Court of Arbitration, which resolves domestic commercial disputes. The BAC is the on [...]

Piloting Arbitrator Intelligence

On this blog, I have previously (here and here) questioned existing practices for how arbitrators are selected and argued that a new approach is both necessary and long overdue. To briefly recap those previous posts, the selection of arbitrators is one of the most sensitive and critical moments in an arbitration. Arbitrators not only decide substantive outcomes of disputes, but also are vested with extraordinary discretion to determine a range of issues that affect how the arbitration will proceed—from the scope of arbitral jurisdiction, to how the applicable law is selected, to the procedures for adducing evidence, to the availability of interim relief, to how costs and fees are awarded. [...]

Neutrality v. Nationality

The most quintessential element of international arbitration is an impartial, independent and neutral tribunal. Where impartiality and independence of the arbitrators is equated with direct relation to or bias towards one of the parties, neutrality is related to the nationality of the arbitrator. In international sphere, the “appearance of neutrality” is considered equally important, meaning an arbitrator is neutral if his nationality is different from that of the parties. Nationality generally, is not an issue if the parties have agreed to appoint an arbitrator of the same nationality as that of one of the parties but it has a different impact when national courts acts as the appointing [...]

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