By David Coleman
The question of which arbitrator to appoint is often a vexed question for the parties in a dispute and their legal representatives. Particularly in international commercial arbitration, it is important that all parties can see that the playing field of the dispute is equal and fair or else the process has no hope of achieving an outcome that will be accepted as binding by both of the parties. There are a number of elements which are vital to establishing the fairness of the playing field, but one of the most important is the appointment of the arbitrator. Below, I have identified what I believe are the top three attributes we should be looking for in an arbitrator in order that a successful arbitral outcome might come about.
Neutrality and Independence
Perhaps the most difficult issue to address in the selection of an arbitrator or arbitral panel is the need for the individual arbitrators and the panel to achieve neutrality and independence both in the perception of the parties and in substance. This is an absolutely vital part of the arbitral process as the viability of the award and the likelihood that it will be challenged on legal grounds at a later stage is much higher where there is any substantive or perceived bias on the part of the panel or its individual members.
In many cases this will mean ensuring that the arbitrators are nationals of countries that are not connected with either of the parties and ensuring that there is no prior relationship commercial or otherwise between the arbitrators and the parties in the dispute. Many party representatives interview arbitrators they are considering for an appointment prior to advising their clients as to a suitable appointment.
As arbitrators these days, particularly in the international context, often have qualifications such as a fellowship of the chartered institute of arbitrators, it is preferable to appoint an arbitrator with this these qualifications even though there is no legal requirement to do so. The qualification of the arbitrator is a mark of learning, study, professional achievement and professionalism which grants the process a certain level of probity and integrity that it would otherwise lack without a qualified arbitrator.
As lawyers are professionals concerned with dispute resolution, it is often lawyers that are called upon to act as arbitrators and there is no doubt that everywhere around the world, legal professionals tend to have highly developed dispute resolution skills. For this reason legal qualifications are often considered an advantage in relation to an arbitral appointment.
The parties to a dispute will usually be involved in an identifiable industry or field. The degree of experience in the industry or field which the arbitrator has plays a vital role to play in the establishment of the credibility of the arbitrator and their ruling. An arbitrator with a developed knowledge of the parties’ industry is more likely to be familiar with the norms and common values of the industry and what both parties are likely to accept as a reasonable position in a ruling. This cannot be said of an arbitrator that does not have the benefit of this type of experience.