A judge by any other name? Arbitrator challenges in state-to-state disputes
What makes an international arbitrator different from a national judge? All of us in the arbitration world have a pretty solid answer to this question. At what point do the distinctions between an international arbitrator and an international judge melt away? That’s a bit of a trickier question, depending on the case.
With the increase in investment law jurisprudence in recent years, we’ve become accustomed to seeing international judges sit on the same investment arbitration panels as commercial arbitrators with their own private practices. In any given arbitration, international judges serving as arbitrators are subject to the same challenge standards as their commercial arbitrat [...]
Judge-Arbitrators in Delaware
It is not unusual for retired judges to serve as arbitrators. But what about sitting judges? A number of European countries permit sitting judges to serve as arbitrators. See Gary B. Born, International Commercial Arbitration 1449 (2009); see, e.g., U.K. Arbitration Act 1996, § 93. In the United States, however, ethics rules generally prohibit judges from serving as arbitrators. See ABA Model Code of Judicial Conduct, Rule 3.9.
In 2009, Delaware became an exception to this general rule when it authorized judges from the Court of Chancery — the highest profile court in the United States specializing in business matters — “to arbitrate business disputes” when the parties so agr [...]
Reflections on the LCIA Arbitrator Challenge Digests
The recently published abstracts of LCIA Court decisions on arbitrator challenges between 1996 and 2010 (Arbitration International, vol. 27, no. 3, 2011) make surprisingly interesting reading. They are an important reminder of the types of egregious arbitrator conduct that, while fortunately rare, can give the system a bad name unless promptly corrected. At the same time, the abstracts also shed light on the lengths to which parties sometimes will go in launching challenges, often for tactical reasons, on grounds that are manifestly unfounded.
Of the 28 published abstracts, six cases were considered to be sufficiently problematic to satisfy the LCIA challenge standard, involving circumst [...]
Tecnimont, the saga continues but is not yet over
- By Laurence Franc-Menget, Herbert Smith LLP,
for YIAG
In a decision rendered on 2 November 2011, the Reims Court of Appeal annulled an ICC Award for failure to disclose conflict of interest during proceedings, irrespective of the ICC Rules on challenging arbitrators in the case Avax v. Technimont.1 This post considers the latest instalment, the Reims Court of Appeal decision, and its two key findings: the inapplicability of the ICC Rules for challenging an arbitrator post-award, and the broad scope of an arbitrator’s continuing disclosure obligations.
For those who may have missed the previous blog posts,2 these proceedings occurred further to an application to set aside a partial arbitral award rendered under the auspices of the International [...]
The LCIA Arbitrator Challenge digests: An Interview with William (Rusty) Park
Arbitration practitioners have traditionally had very little illumination into the outcomes, let alone the reasoning, of arbitrator challenge decisions. Few arbitral institutions set out in writing to the parties the reasons for their challenge decisions, and even fewer institutions have made these decisions available to the larger arbitration community. Past posts on this blog have lamented this situation, arguing that a greater transparency in this area could enhance the predictability of decisions, provide greater guidance to arbitrators concerning the scope of their disclosures, and lead to a reduction in the number of frivolous challenges.
All of this makes Arbitration International [...]
Women in Arbitration: Lots of Talk, Any Changes?
Occasional articles, postings, etc come out which discuss the lack of female representation in international arbitration. Perhaps possible reasons are suggested, perhaps only statistics given, but it is still clearly an issue. Beyond talking about it – how can we actually help the situation? In an article from June 2009, Michael Goldhaber noted that in past arbitrator listings from FocusGroup only 4% of arbitrators were women. Some of these women were indeed very busy, and highly respected; yet, only 4% were women.
The first questions to address, perhaps, is why not a female? A fellow colleague of mine, a male, who is active in the international arbitration arena asked me this very questio [...]
