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. [...]
In a recent post, here, I argued that the time has come to move on from the gumshoe clue-hunting approach currently employed to select international arbitrators. Existing practices are severely outdated and unduly expensive in an era of information and technological efficiency. The process for selecting arbitrators, I argued, should be more transparent and key information about arbitrators should be more equally accessible. The solution I proposed is what I have termed the “International Arbitrator Information Project,” a project that would aim to provide reliable, online one-stop-shopping for information about arbitrators. This post sketches some of the features and challenges that [...]
As Rusty Park remarked, “[I]n real estate the three key elements are ‘location, location, location,’ … in arbitration the applicable trinity is ‘arbitrator, arbitrator, arbitrator.”’ Empirical studies consistently verify that parties’ ability to select arbitrators is one of the primary reasons they select arbitration as a means of dispute resolution. Parties also consistently vote with their feet by rejecting available options to have arbitral institutions or appointing authorities select arbitrators on their behalf.
Parties seek to actively participate in the arbitrator selection process—the ultimate form of forum shopping. The arbitral tribunal can, in the absence [...]
On March 11, 2001, The New York Times published an article entitled “Nafta’s Powerful Little Secret; Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say.” It began, ominously: “Their meetings are secret. Their members are generally unknown. The decisions they reach need not be fully disclosed.” Over the ensuing decade, while NAFTA Chapter Eleven arbitrations (and a number of other investor-State arbitrations) have become remarkably more transparent, investor-State arbitrations brought under many other treaties have not. Now, however, a Working Group of the United Nations Commission on International Trade Law (“UNCITRAL”) is developing procedural rules on transp [...]
The views of lawyers involved in international commercial and investment arbitration are being sought for a new international arbitration survey from Queen Mary, University of London (QMUL).
Conducted by QMUL’s School of International Arbitration and sponsored by White & Case LLP, the 2012 survey aims to examine whether a “harmonised international arbitration procedure is emerging, by canvassing the views of experienced arbitration practitioners from all over the world,” comments Professor Loukas Mistelis, Director of the School of International Arbitration at QMUL.
Entitled “Current and Best Practices in the Arbitral Process,” the survey is the fourth carried out by QMUL since 2006, [...]
A recent discussion on the OGEMID list about “elite arbitrators” prompted one participant to humorously compare the discussion to the frequent flier programs of airlines. This led to some fanciful speculation by in-house counsel of arbitration institutions offering their own loyalty programs, awarding us with “Frequent Arbitrating” points. For example, would there be free “upgrades” of tribunals, use of institution conference rooms (complete with bad coffee and stale pastries), “premiere” case managers who play active roles in keeping the proceedings in line with party expectations, plus discounts at leading department stores and vacation destinations? Certainly, this seem [...]