Quo Vadis? A Shifting Standard of Impartiality and Independence (2011 Writing Contest Winner)

by Thor G. Imsdahl

“As so very often, the key lies in a proper balance: est modus in rebus. To ensure that international arbitration continues to be an effective method of resolving commercial disputes, all players must share responsibility in maintaining that balance.” 1

Anne Marie Whitesell

Table of Contents

Part I: Current Changes Affecting the Balance
    Balancing Concerns
    Variation Giving Tribunals Leeway
    Current Developments Affecting This Balance

Part II: The Move Towards Greater Flexibility
    Inflexibility Perceived as Hurting Arbitration
    The Arbitral Community Will Necessarily Respond
    The Immediacy of a Need to Change

Part III: Where This Shift Will Occur
    Institutions Have Reached Their Limit
    The Next Step at the Individual Level
    The ICC Will Probably Not Follow
    Beginning of a Divergence in Standards

Conclusion



When Justice White said that arbitrators are different from judges in that they are “not apart from but of the marketplace,”2  he put his finger on a sensitive issue in arbitration. Unlike judges of national legal systems who are chosen by those legal systems to hold office, arbitrators are chosen by the parties themselves to adjudicate their particular dispute. This inevitably leads to a tension since parties want to choose arbitrators who are sensible to their interests, but who can still remain fair and neutral.3  Thus, a delicate balance must be calibrated between ensuring the fairness of the arbitral process and giving parties the ability to choose, a balance that must be adjusted to the particular context in which it arises. As this paper will demonstrate, this balance will shift in the upcoming years towards greater flexibility. Part I will illustrate the nature of this balance and will show how its variability will be affected by changes in the legal and business environment. Part II will show how the recent backlash against arbitration will compel the balance to shift in a more flexible direction. Part III will then identify where this shift towards greater flexibility will primarily be carried out and will show how the shift might even lead to a divergence of standards.

Part I: Current Changes Affecting the Balance

Balancing Concerns

In International Commercial Arbitration, the terms independence and impartiality are generally used to denote the applicable standard governing arbitrator selection. The standard for independence and impartiality has two main characteristics: balance and variation. In terms of balance, an appropriate calibration of the standard for independence and impartiality will avoid extremes and will be drawn at the proper point of balance. If the standard is too low, this harms the image of arbitration because then biased or partial arbitrators could make the arbitration process appear unfair.4  If the standard is too high, this leads to inexperienced and poor appointees because the pool of potential arbitrators would be unwisely limited.5  A moderation requirement will hereby be insufficient because parties will always chose arbitrators favorable to their side in order to increase their likelihood of winning.6, 7  Thus, an effective calibration of the rule will avoid both extremes, will be drawn to appropriately reflect both sets of concerns as much as possible, and will avoid overly offsetting the proper point of balance in either direction.

Variation Giving Tribunals Leeway

Second, in terms of variation, the inherent ambiguity of the standards as well as their interpretation means that arbitral tribunals have considerable leeway in applying the standards to their particular cases. This gray area is visible in a number of ways. First, it is visible in the fact that institutions use different words to describe the concept. For example, whereas UNCITRAL requires both “independence and impartiality,”8  the English Arbitration Act uses only “impartiality,”9  and ICC Rules and Swiss law use “independence” but not impartiality.10  Second there is disagreement as to what the words actually mean since the definitions of these terms remain elusive and difficult to characterize.11  In effect, both the variation in the words used and the variation of their interpretation give considerable leeway to tribunals in applying these standards.  

Can the terms independence and impartiality even be distinguished? Yes, because even though one might disagree as to their precise meaning, they are generally distinguished by saying that “independence” concerns the personal relationship between party and arbitrator and is determined more objectively, whereas “impartiality” is more abstract and deals with the arbitrator’s state of mind.12  In the end, however, both independence and impartiality describe the same concept. Although one can differentiate between them, it is objective factors that will ultimately be determinative for a tribunal evaluating the issue; after all, one is unlikely to have direct evidence of someone’s state of mind and subjective elements will be proven through objective evidence.13  As Gary Born has explained, “it makes little sense to distinguish between independence and impartiality...both formulae address different aspects of the same inquiry and are best considered together.”14  Overly focusing on the exact difference between the two would only cause confusion since their primary purpose is to ensure that the arbitral process is unbiased and fair. To this effect, this paper will treat them interchangeably and will use the ambiguity surrounding their definition to demonstrate the leeway tribunals have in applying the standard.

Current Developments Affecting This Balance

Modern trends will continue to affect how the balance within independence and impartiality is calibrated. For one, new developments in the international legal profession have created circumstances in which new conflicts of interest have arisen.15  Arbitrator susceptibility to challenges of impartiality or independence has increased because arbitrators and parties often operate from within transnational legal firms that have offices in a variety of different countries.16  The increase in proliferation of global law firms has meant that arbitrators must nowadays keep a close eye on potential clients their law firm serves and has intensified the need for refocusing attention on impartiality and independence.

But law firms are not the only ones to have changed. Business patterns and corporate structures have themselves become much more complex. One, structures in international business relations have become much more intricate.17  Two, this complexity has been further intensified through the wider reach of arbitration into new cultural contexts.18  Three, computerized conflict searches have facilitated the ease with which indirect links are noticed.19  Thus, the increasing complexity of business and arbitration’s expansion into a wider cultural context has added new layers of complexity. This has increased the focus of the arbitral community on questions of impartiality and independence and has brought about calls for their redesign.

With all these trends, it should not be surprising that a quantitative increase has been documented in the number of arbitrator challenges. A variety of academics and practitioners have commented on the growing number of challenges to arbitrator selection.20  Evidence even points to the occurrence of inflexible standards being used in arbitration to tactically delay proceedings by opportunistic parties.21  In effect, the increase in the number of challenges comes hand in hand with the new trends in the legal and global environment and has led to the need for recalibrating existing standards to meet current and future needs.  

Part II: The Move Towards Greater Flexibility

Part II will demonstrate how the recent backlash against arbitration will be a sufficient impetus to shift the balance in independence and impartiality towards greater flexibility.

Inflexibility Perceived as Hurting Arbitration

Flexibility has always been one of the principal advantages of arbitration. During the rise of arbitration, it was one of its driving forces and continues today to be one of its key advantages.22  Therefore, it has been particularly detrimental to arbitration that it has increasingly been criticized for its inflexibility and its “creeping legalism.”23  Especially during the recent backlash against arbitration, the lack of flexibility was an often voiced concern.24  The words “blight on arbitration” and “a concern for the entire arbitration community” have been used to describe this occurrence in the wake of continued criticism.25  What used to be one of arbitration’s greatest fortes has suffered. In effect, the increased occurrence of challenges and the perceived inflexibility of arbitration has amplified pressure towards shifting the balance and allowing for greater flexibility.

The Arbitral Community Will Necessarily Respond

This concern about inflexibility is one that the arbitral community will not leave unmitigated. After all, in order to remain an effective dispute resolution choice, arbitration will need to remain at the competitive edge and will not stand by and watch as arbitration becomes marred by what was once its greatest asset.26  In order to sustain its “enclaves of justice,” arbitration will therefore need to regain and continue its competitiveness by ensuring that the arbitral process is sufficiently flexible.27  In effect, flexibility is essential for parties who chose arbitration because it meets their business needs, parties who will not chose arbitration if other means of dispute resolution are equal or better.

This in no way means that arbitration will vanish from the earth, but merely that the arbitral community will be compelled to react. Any fear that arbitration will peter out completely fails to take into account the forces that hold arbitration together.28  After all, arbitration has enabled foreign direct investment to grow tremendously: from U.S. $10 billion in 1970 to U.S. $1,009 billion in 2009.29  The arbitral system has provided a form of security to investors that reaches far beyond anything that a purely contractual approach could ever provide.30  Thus, we should not be worried that arbitration will vanish or even diminish in importance—in fact, it will probably continue to grow. What it does mean, however, is that if arbitration needs to become more flexible, its significance to the functioning of the global economy will ensure that the necessary changes are made. Arbitration will be mended before it becomes inflexible.

The Immediacy of a Need to Change

The reason that arbitration needs to become more flexible is because these concerns have become more immediate with the backlash against arbitration in recent years. Indications of a backlash against arbitration are visible on a country and institutional level. First, on a country level, the backlash can be seen in recent reactions by states in South America: Bolivia denounced its adhesion to the ICSID Convention and Ecuador’s new constitution prohibits arbitration treaties.31   Indications of such a backlash can also be seen in other countries: Germany adopted legislation that examines foreign investments for national security purposes and restricts investments,32  the United States rewrote its Model BIT in 2004 to reduce the scope of arbitration,33  and many NAFTA parties issued clarifying statements to reduce NAFTA’s protections.34  As these examples demonstrate, states have responded in the past and are increasingly becoming hesitant towards granting arbitration greater prerogatives.

Second, such evidence of backlash is also visible on an institutional level. Particularly in terms of transparency, institutions have been under pressure to become less enigmatic. The initial outburst of this backlash was felt in the NAFTA context when the NAFTA parties were criticized for their continued secrecy.35  It was followed in the LCIA context by criticisms that culminated in the publication of the LCIA’s decisions.36  This trend towards demanding greater transparency has made the impact of the backlash felt at the institutional level as well.

These examples illustrate how the arbitral community has responded and how it will continue to respond when arbitration begins to falter. After all, the arbitral community will be weary that other actors do not start to assert claims.37  Perhaps it is this backlash that arbitration needs in order to make itself more efficient and to get back on the right track.38  Whatever specific changes come, though, the backlash will direct the balance in a new, more flexible direction.

Part III: Where This Shift Will Occur

Part III will show where the changes towards greater flexibility will be most visible in the upcoming years. Although some institutional changes have occurred in the past, the bulk of change will occur on an ad hoc level by individual decisions and might even lead to a divergence in standards.

Institutions Have Reached Their Limit

Institutional advances towards greater flexibility have already begun to reach their limits. The IBA Guidelines on Conflicts of Interests are the most prominent recent example of an advance on the institutional level.39  The IBA Guidelines have achieved wide success: they have been lauded as an admirable attempt and “are now being referred to widely by parties challenging arbitrators, parties opposing the challenge to arbitrators and institutions that are deciding those challenges.”40  However, notwithstanding their success, the IBA Guidelines have also been limited in their further prospects. As the IBA working group itself observed, its guidelines were “a beginning, rather than an end, of the process [and]... do not purport to be comprehensive, nor could they be.”41  This limitation has been widely confirmed by academics and practitioners and has been taken to mean that further steps will need to be taken in other areas instead.42  Thus, although the IBA Guidelines constituted a valiant initial response to addressing concerns about independence and impartiality, they leave much to be answered.

The Next Step at the Individual Level

The next step will therefore probably be at a more individual rather than institutional level. Although the IBA’s Committee has already formed a second working group, there is a growing consensus that it will be individual challenges that will do more to “put flesh on the bones of the present understanding and appreciation of challenge criteria than any single increment to the IBA Guidelines could ever do.”43  Despite the fact that the IBA Guidelines have value as suggestions, the real progress will be made in individual decisions on a case by case basis.44  As a result, the locus for new developments will be at an individual rather than institutional level.

The reason the next step will probably be carried by individual tribunal’s decisions is primarily because of their ability to account for the inherent flexibility when applying standards to highly context-specific decisions. Because of the varying scenarios in which the cases come to bear, allowing individual tribunals to make case-by-case determinations will be the best way to adopt the most workable rule going forward and to account for the changes in the legal and business environment.45  As Gary Born has noted, because the currently existing standards are often “unhelpfully abstract” and standards usually depend on highly detailed facts and the context of the parties’ arbitration agreement, the application to specific facts is essential when developing the appropriate standards.”46  In effect, individual decision-makers will be the most capable in applying the appropriate standard and in allowing for a gradual shift in a more flexible direction. The variability within the standard and the context-specific nature of the standard’s application will therefore mean that the standards will be developed on a case by cases basis and that individual decisions will be leading the shift towards greater flexibility. 

The ICC Will Probably Not Follow

This is a trend, however, that will probably not be followed by institutions like the ICC. As Anne Marie Whitesell demonstrates, the ICC has actually maintained a high standard for challenges and has not experienced an increase in overall challenges.47  Such a quantitative void of challenges will mean that the ICC will be less compelled, and thus less eager to address the issue: in effect, the perceived need to change is going to be weaker at the ICC.

In addition to the low frequency of challenges, the ICC has remained rather impervious to the new IBA Guidelines. As Whitesell explains, although the IBA Guidelines should be regarded as a “commendable effort,” the ICC “has repeatedly made it clear that it is not bound by the IBA Guidelines.”48  In fact, Whitesell even notes that the utility of the IBA Guidelines is itself limited for an institution,49  and that reforms are unlikely to be made at the ICC.50  As Whitesell therefore demonstrates, the ICC has not felt the need that is so palpable in other areas of arbitration, and will not be adopting its standards to meet new trends. This lack of urgency will mean that arbitration at the institutional level will probably lag behind the trend towards flexibility that will be occurring at the more individual level.

Beginning of a Divergence in Standards

Given that the ICC appears disinclined to follow the trend towards flexibility, a division in standards is likely to occur. If individual tribunals take the lead and use the variability within independence and impartiality to move in a more flexible direction, whereas institutions like the ICC feel less of a need to change, divergent standards are likely to emerge. This trend already appears to be foreshadowed by differing ICC and UNCITRAL rules on independence and impartiality. As Alan Redfern and Martin Hunter have noted, the UNCITRAL rules are generally less restrictive than ICC rules in terms of appointing arbitrators of the same nationality.51  It should therefore not be surprising that Whitesell has noted how “ICC arbitration is sometimes criticized for being too strict when it comes to independence.”52  In effect, it seems that ICC institutions have maintained and will continue to maintain a stricter standard, while individual tribunals under UNCITRAL or ICSID rules will incrementally move in a more flexible direction.

Conclusion

As I have demonstrated, the upcoming years will yield a trend towards flexibility that will primarily be carried by individual decisions on a case-by-case basis. This is a trend that is based on the balance and variation inherent in the independence and impartiality standard and on which the changes in legal and business environment have exerted pressure to become more flexible. Particularly individual tribunals will take the lead towards greater flexibility and towards pushing the standard in a direction that increases leeway in arbitrator selection. This is a trend, however, that institutions like the ICC will be less inclined to follow because of the lack of perceived urgency at the institutional level. The advantage individual decisions makers have in crafting standards that fit the context of the situation at hand will mean that individual tribunals will be able to incrementally shift the standard towards greater flexibility one decision at a time.




Footnotes:

1  Anne Marie Whitesell, Independence in ICC Arbitration: ICC Court Practice Concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators, in Independence of Arbitrators 7, 40 (ICC, 2007).
2  Commonwealth Coatings Corp v Continental Casualty Co, 393 U.S. 145, 150 (1968).
3  Günther Horvarth, Selection of Arbitrators in International Construction Law, http://law.wustl.edu/Library/cdroms/IBL/Construction/s10hor.htm. (“The nature of the tension inherent to the arbitration process is thus clear: it is a tension of an ideal-perfect fairness of the arbitrator against the reality that the very method by which arbitrators may be selected can undermine such fairness”).
4  See William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 191 (Michael Waibel et al., ed., 2010) (“In a cross-border context, the prohibition on bias justifies itself by reference to the very same goal underlying the decision to arbitrate: promoting a level playing field”); see Richard B. Schmitt, Suite Sharing, Wall Street Journal, Feb. 14, 1990, at A1, column 1.
See Christopher Kee, Judicial Approaches to Arbitrator Independence and Impartiality in International Commercial Arbitration, in Investment and Commercial Arbitration—Similarities and Divergences 181, 194 (Christina Knahr et al., ed., 2010) (noting how the same people are often involved as arbitrators or counsel and how having too high of conflicting burdens leads to inexperienced and poor appointments); see also Ahmed S. El-Kosheri & Karim Y. Youssef, The Independence of International Arbitrators: An Arbitrator’s Perspective, 43, 48 (ICC, 2007) (“in the world of globalized business and legal services in which international commercial arbitration operates, many, if not most, players are in some way acquainted with each other”); see also id. at n27 (noting how arbitration would lose its most famous arbitrators if too high a standard was used); see also William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 193 (Michael Waibel et al., ed., 2010) (“Those who establish and apply ethical guidelines walk a tightrope” between these competing concerns); but see Shivani Singhal, Independence and Impartiality of Arbitrators Int’l Arb Law Review 124, 125 (2008).
6  See Robert Smith, The CPR Rules for Non-Administered Robert Smith, The CPR Rules for Non-Administered Arbitration of International Arbitration of International Disputes: A Critical and Comparative commentary, 2 Am. Rev. Int’l Arb. 411,423 (1991) (“rather than selecting each arbitrator solely on the basis of his qualifications and integrity, parties tend to choose their party-appointed arbitrators on the basis of advocacy skills and perceived willingness to toe the party line”); See also  H. Smit and V. Pechota, The Roster of International Arbitrators, Juris Publishing (Sweet & Maxwell, 1997) at p. 25. (“In choosing an arbitrator to be nominated by a client, I look for the maximum predisposition towards my client consistent with the minimum appearance of bias”).
7  Robert Smith, The CPR Rules for Non-Administered Robert Smith, The CPR Rules for Non-Administered Arbitration of International Arbitration of International Disputes: A Critical and Comparative commentary, 2 Am. Rev. Int’l Arb. 411,423 (1991).
UNCITRAL Model Law on International Commercial Arbitration Article 12.
9  English Arbitration Act 1996 Section 24.
10  Article 180(1)(c) PILA.; ICC Rules of Arbitration (1998) Article 11(1).
11  See W. Craig, W. Park & J. Paulsson International Chamber of Commerce Arbitration ¶13.03 (3d ed. 2000) (“it is undoubtedly established that all ICC arbitrators must be independent, [although] the definition of ‘independence’ remains elusive”); see also Catherine Rogers, Regulating International Arbitrators: A Functional Approach to Developing Standards of Conduct, 41 Stan. J. Int’l L. 53 (2005); Noah Rubins & Bernhard Lauterburg, Independence, Impartiality and Duty of Disclosure in Investment Arbitration, in Investment and Commercial Arbitration—Similarities and Divergences 153, 153 (Christina Knahr et al., ed., 2010) (“the terms ‘independence’ and ‘impartiality’ remain difficult to define”).
12  See Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration 201 (2004).
13 For the rare case of a demonstration of such a subjective intent see In re The Owners of the Steamship Catalina & The Owners of the Motor vessel Norma, 61 Lloyds L Rep. 360 (1938) (“Italians are all liars in these cases and will say anything to suit their book. The same thing applies to the Portuguese. But the other side here are Norwegians and in my experience the Norwegians generally are a truthful people”).
14 Gary Born, International Commercial Arbitration 1475 (Kluwer 2009); see also Aldo Berlinguer, Impartiality and Independence of Arbitrators in International practice, 6 Am. Rev. Int’l Arb. 339, at 343 (1995) (noting how over-analyzing can and has led to more confusion about what they mean and how they should be applied); see also Noah Rubins & Bernhard Lauterburg, Independence, Impartiality and Duty of Disclosure in Investment Arbitration, in Investment and Commercial Arbitration—Similarities and Divergences 153, 158 (Christina Knahr et al., ed., 2010) (“the standards employed by the ICSID, UNCITRAL, ICC and SCC Rules, although phrased differently, appear to be roughly similar in scope”); William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 194 (Michael Waibel et al., ed., 2010) (“The common assumption is that arbitrators in international disputes must be both impartial and independent”); see also Julian Lew et al., Comparative International Commercial Arbitration 261 (2003) (“In legal systems where either impartiality or independence is the relevant criterion the interpretation adopted incorporates most elements of both concepts”); See also A. Redfern et al., Law and Practice of International Commercial Arbitration, 201 (4th ed., 2004); Hong-Lin Yu and Laurence Shore Independence, Impartiality, and Immunity of Arbitrators—US and English Perspectives, ICLQ vol 52, 935, 935 (2003) (“In legal systems where either impartiality or independence is the relevant criterion the interpretation adopted incorporates most elements of both concepts”)
15  See Hong-Lin Yu and Laurence Shore Independence, Impartiality, and Immunity of Arbitrators—US and English Perspectives, ICLQ vol 52, 935, 936 (2003). (In effect, a set of circumstances has occurred that was described by Dr Otto de Witt Wijnen at the LCIA AMINZ Arbitration Seminar. In this scenario, a local partner in Hong Kong had been involved many years ago in a conveyance for a local company that was later merged into another company in the United Kingdom. This merger led to the challenge of a different partner based in that same law firm’s London office who had been acting as an arbitrator in a dispute in which the parent company was involved. Since a partner in another office of the same law firm had done work for its subsidiary, there was a potential conflict of interest for the partner from the same law firm who had been appointed as the arbitrator in a dispute with the parent company).
16  See Andrea Carlevaris, Global Development: The 1998 ICC Rules and Some Recent Trends in International Commercial Arbitration, 9 Croat. Arbit. Yearb. 27, 2002.
17  See Anne Marie Whitesell, Independence in ICC Arbitration: ICC Court Practice concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators, in Independence of Arbitrators 7, 8 (ICC, 2007) (“The growing complexity of international business, the increasing number of multiparty and multicontract cases, as well as the multiplication of related proceedings, have led to numerous issues concerning independence”).
18  See Geoff Nicholas & Constantine Partasiades, LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish Arbitration Int’l, Vol. 23, No. 1 1, 2 (2007) (noting how greater cultural variety and general complexity have heightened demands for clarity).
19 See Anne Marie Whitesell, Independence in ICC Arbitration: ICC Court Practice concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators, in Independence of Arbitrators 7, 9 (ICC, 2007); see, e.g., Kaufmann-Kohler controversy in EDF International S.A., SAUR International S.A., Leon Participaciones Argentinas S.A. v Argentine Republic (Case No. ARB?03/23).
20  See Geoff Nicholas & Constantine Partasiades, LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish Arbitration Int’l, Vol. 23, No. 1 1, 2 (2007); Charles B. Rosenberg, Challenging Arbitrators in Investment Treaty Arbitrations: A comparative Law Approach, Journal of Int’l Arbitration 27(5): 505, 506 (noting “a recent uptick in challenges to arbitrators”); See also Edward Baldwin, Mark Kantor & Michael Nolan, Limits to Enforcement of ICSID Awards, Journal of Int’l Arbitration 23(1) 1, 10 (2006) (“With the growth in challenges to the impartiality or independence of arbitrators”); Fatima-Zahra Slaoui The Rising Issue of ‘Repeat Arbitrators’: A Call for Clarification, Arbitration Int’l, Vol. 25, No. 1 103, 103 (2009) (“The increase of challenges to arbitrators”).
21  See Trakman  V.V.Veeder, Essex Court Chambers, London, “The English Arbitration Act 1996: its 10th and future birthdays” at http://www.expertguides.com/default.asp?Page=10&GuideID=150&CountryID=117
22  See Sameer Sattar, National Courts and International Arbitration: A Double-edged Sword? Journal of Int’l Arbitration 27(1): 51, 51 (2010) (“In recent times, international arbitration has been the most preferred method of resolving cross-border commercial disputes. This is because the procedure is flexible and allows the party greater autonomy in resolving their disputes”).
23  See William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 243 (Michael Waibel et al., ed., 2010) (noting how the arbitral process is often criticized for falling prey to “creeping legalism”); see also Gerald F. Phillips, Is Creeping Legalisms Infecting Arbitration?, 58 Dispute. Res. J. 37 (American Arbitration Ass’n February—April 2003), David W. Rivkin, Towards a New Paradigm in International Arbitration—The Town Elder Model Revisited, 24 Arb. Int’l 375 (2008).
24  See Louis T. Wells Backlash to Investment Arbitration: Three Causes, in The Backlash against Investment Arbitration 341, 342 (Michael Waibel et al., ed., 2010) (“flexibility has not so far characterized decisions of arbitrators in disputes over foreign direct investment”).
25  Ahmed S. El-Kosheri & Karim Y. Youssef, The Independence of International Arbitrators: An Arbitrator’s Perspective, 43, 48 (ICC, 2007) (“blight on arbitration”); Fatima-Zahra Slaoui, The Rising Issue of ‘Repeat Arbitrators’: A Call for Clarification, Arbitration Int’l, Vol. 25, No. 1 103, 104 (2009) (“a concern for the entire arbitration community”).  
26  Stephen Bond, Current Issues in International Commercial Arbitration: The International Arbitrator: From the Perspective of the ICC International Court of Arbitration, 12 Nw. J. Int'l L. & Bus. 1,1991 (As Stephen Bond notes, “for the business person time is money and money is also money....the parties will accept the alternative of arbitration only insofar as they are confident that the objectives sought are truly obtainable and the means required to reach these objectives are available”).
27  See William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 218 (Michael Waibel et al., ed., 2010) (“arbitration continues to provide what some have called ‘enclaves of justice’ for resolution of international economic controversies, serving as the best means to enhance rule of law in a global marketplace lacking any omninational courts or sheriffs”).
28  See Timothy G. Nelson “History Ain’t Changed”: Why Investor-State Arbitration Will Survive the “New Revolution,” in The Backlash against Investment Arbitration 555, 574 (Michael Waibel et al., ed., 2010) (noting how such a view “ignores the centrifugal forces holding the BIT system together...host states, by and large, appear to have regarded arbitration as a reasonable and fair system too. To assume this consensus will suddenly collapse or that regional opposition to the system will snowball into a global uprising may be considered somewhat superficial”).
29  See World Bank figures at http://data.worldbank.org/indicator/BX.KLT.DINV.CD.WD/countries?display=graph; see also Tillmann Rudolf Braun Globalization: The Driving Force in International Investment, in The Backlash against Investment Arbitration 491, 492 (Michael Waibel et al., ed., 2010) (“Foreign direct investment is one of, if not the, most important force driving economic globalization. It can be especially helpful for emerging and developing countries, to which more than one-third of all investment flows. In 2005, the worldwide stock of foreign direct investment amounted to US $10.1 trillion. It has increased 18-fold since 1980, growing far more quickly than the trade in goods during this period”); see also William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 246 (Michael Waibel et al., ed., 2010) (“In a world lacking global commercial courts of mandatory jurisdiction, arbitration provides one way to bolster confidence in cross-border economic cooperation”).
30  See id. at 198 (“Nothing prevents enforcement of an arbitrator’s decision simply as a matter of contract. However, actors in cross-border commerce seek something more than just a contractual framework for arbitration. The New York Convention and its antecedents (the Geneva Convention and Geneva Protocol of 1927 and 1923, respectively) grew from dissatisfaction with contract law alone as a remedy for failure to respect arbitration commitments. The commercial community sought to facilitate enforcement of arbitrators’ decisions as awards, not simple contracts”); see also See Redfern, Alan, Hunter, Martin, Law and Practice of International Commercial Arbitration, London, Sweet & Maxwell, 2003. (lauding arbitration as the preferred method of dispute resolution in the international business community).
31  See Marco Tutelio Montanes Bolivia Denounces ICSID Convention, 46 I.L.M. 969 (September 2007); Emmanuel Gaillard, The Denunciation of the ICSID Convention, 237 (No. 122) New York Law Journal. 2 (Jun. 26, 2007); see also Juan Manuel Marchin, The Treatment of Arbitration in the New Constitution of Ecuador, 22/23 News From Institute for Transnational Arbitration 1 (Autumn 2008/Winter 2009) (noting how President Correa of Ecuador expressed that Ecuador is considering a withdrawal from the ICSID system).
32  See Gesetz zur Änderung des Außenwirtschaftsgesetzes und der Außenwirtschaftsordnung, Apr. 18, 2009, BGB1, Teil 1, Nr. 20 (Germany).
33  See e.g., Stephen M. Schwebel, The United States 2004 Model Bilateral Investment Treaty and Denial of Justice in International Law, in INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY—Essays in Honour of Christoph Schreuer, 519-21, at 519 (Christina Binder et al. eds.) (“the conception of and publication of the 2004 Model was an exercise in the regressive development of international law”).
34  See generally Anthea Roberts, Rethinking the Interpretation of Investment Treaties: The Dual Role of States, 104 Am. J. Int’l L. (2010); see also NAFTA Free Trade Commission, Notes of Interpretation on Certain Ch. 11 Provisions, 2001, www.naftaclaims.com/files/NAFTA_Comm_1105_Transparency.pdf (scaling back the international law standard to the customary international law standard).
35  Anthony DePalma, NAFTA’s Powerful Little Secret: Obscure Tribunals Settle Disputes, But Go Too Far, Critics Say, NEW YORK TIMES, Mar. 11, 2001; see also Andrea Menaker, Piercing the Veil of Confidentiality: The Recent Trend Towards Greater Public Participation and Transparency in Investor-State Arbitration, in Arbitration Under International  Investment Agreements 129, 129 (Katia Yannaca-Small ed., 2010) (“Developments...point toward the establishment of greater transparency and openness in investment arbitration”).
36  See Geoff Nicholas & Constantine Partasiades, LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish, Arbitration Int’l, Vol. 23(1) 1, 2 (2007); see also Fatima-Zahra Slaoui The Rising Issue of ‘Repeat Arbitrators’: A Call for Clarification, Arbitration Int’l, Vol. 25(1) 103, 104 (2009); Nigel Blackaby & Caroline Richard, Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration? in The Backlash against Investment Arbitration 253, 274 (Michael Waibel et al., ed., 2010) (“The true response to the transparency criticism lies in opening the parties’ pleadings and the proceedings to the public for comment”).
37  See Sameer Sattar, National Courts and International Arbitration: A Double-edged Sword? Journal of Int’l Arbitration 27(1): 51, 72 (2010). (noting how courts are quick to interfere in the arbitral process).
38  See Louis T. Wells, Backlash to Investment Arbitration: Three Causes, in The Backlash against Investment Arbitration 341, 352 (Michael Waibel et al., ed., 2010) (“Broader reform, which requires changing an international regime, is difficult if there is no crisis. Just maybe the backlash that is emerging will shake parties with interest in the investment regime sufficiently that users and practitioners will demand changes”); Michael Waibel et al., The Backlash against Investment Arbitration: Perceptions and Reality, in The Backlash against Investment Arbitration xxxvii, xxxvii (Michael Waibel et al., ed., 2010) (“over the last few years, cracks have started to appear in the investment regime. Investment arbitration now attracts a substantial amount of public scrutiny”); see also Jan Paulsson, Arbitration without Privity, 10 ICSID REV.-FOR.INV. L. J. 232, 257 (1995), (“A single incident of an adventurist arbitrator going beyond the proper scope of his jurisdiction in a sensitive case may be sufficient to generate a backlash”).
39  See Gary Born, International Commercial Arbitration 1464 (Kluwer 2009).
40  Geoff Nicholas & Constantine Partasiades, LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish Arbitration Int’l, Vol. 23, No. 1 1, 3 (2007).
41  IBA Guidelines, Introduction §7, at http://www.int-bar.org/images/downloads/guidelines%20text.pdf
42  See e.g., Otto L.O. de Witt Wijnen, The IBA Guidelines on Conflicts of Interest in International Arbitration Three Years On, in Independence of Arbitrators 107, 107 (ICC, 2007) (“It has never been the purpose of the Guidelines and the Lists to cover any and all sorts of situations of (potential) conflicts that can occur”); Markham Ball, Probity Deconstructed: How Helpful, Really, are the New International Bar Association Guidelines on Conflicts of Interest in International Arbitration? Arbitration Int’l, Vol. 21, No. 3 323, 325 (2005) (“The Guidelines are, as the draftsmen make clear; a work in progress, to be reviewed and revised in light of future experience....But if the Guidelines were ever conceived of as a panacea, they have instead shown just how elusive panaceas are in this area of arbitration practice”); Christopher Kee, Judicial Approaches to Arbitrator Independence and Impartiality in International Commercial Arbitration, in Investment and Commercial Arbitration—Similarities and Divergences 181, 197 (Christina Knahr et al., ed., 2010).
43  Geoff Nicholas & Constantine Partasiades, LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish Arbitration Int’l, Vol. 23, No. 1 1, (2007); See also Markham Ball, Probity Deconstructed: How Helpful, Really, are the New International Bar Association Guidelines on Conflicts of Interest in International Arbitration? Arbitration Int’l, Vol. 21, No. 3 323 (2005) (noting that the guidelines give good guidance but that case law will need to take the next step).
44  See Markham Ball, Probity Deconstructed: How Helpful, Really, are the New International Bar Association Guidelines on Conflicts of Interest in International Arbitration? Arbitration Int’l, Vol. 21, No. 3 323, 340 (2005) ( “The elucidation and homogenization of these laws and practices will come about only over time, through developments in one case and one country after another”); see also Christopher Kee, Judicial Approaches to Arbitrator Independence and Impartiality in International Commercial Arbitration, in Investment and Commercial Arbitration—Similarities and Divergences 181, 181 (Christina Knahr et al., ed., 2010) (“allegations of independence and impartiality against arbitrators should be dealt with on a case by case basis without the obligation to resort to a specific enunciated test”).
45  See William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 232 (Michael Waibel et al., ed., 2010) (Grounds for challenge often present themselves with slight but relevant factual variations. For example, conflicts decisions commonly address an arbitrator’s relationship with an institution or company which, in turn, has links to one of the parties in the case”).
46  Gary Born, International Commercial Arbitration 1465 (Kluwer 2009); see also William W. Park, Arbitrator Integrity, in The Backlash against Investment Arbitration 189, 200 (Michael Waibel et al., ed., 2010) (“A general standard of independence usually takes meaning only as applied to specific cases, some of which resist facile analysis”); see also Catherine Rogers, Regulating International Arbitrators: A Functional Approach to Developing (characterizing “the arbitrator is a chameleon” whose obligations of impartiality and independence are colored by the parties’ expectations and context).
47  See Anne Marie Whitesell, Independence in ICC Arbitration: ICC Court Practice concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators, in Independence of Arbitrators 7, 26 (ICC, 2007) (“During the period studied, no significant increase in challenges in ICC proceedings can be inferred from ICC statistics”); see also id. at 27 n.30 (“Statistics for 2007 once against confirm that there has been no significant increase in challenges in ICC proceedings. The number of arbitrators confirmed or appointed was 1,039 and 26 challenges were introduced. Thus, there was a decrease in the percentage of arbitrators challenged to 2.5% of all arbitrators confirmed or appointed during the year. The 26 challenges were in 22 cases. Only one challenges was accepted in 2007”).
48  Id. at 36 (“Although the ICC is not in complete agreement with the adopted text, it recognizes that the IBA Guidelines are intended to be a work in progress, to be modified in the light of experience”); see also id. at 36 (the ICC “has repeatedly made it clear that it is not bound by the IBA Guidelines”).
49  Id. (“the utility of the IBA Guidelines is therefore limited for an institution” ).
50  Id. at 40 (“Any significant reform of ICC Court practice in this filed should therefore be made with caution”).
51  See Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration 46-47 (4th ed., 2004).
52  Anne Marie Whitesell, Independence in ICC Arbitration: ICC Court Practice concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators, in Independence of Arbitrators 7, 40 (ICC, 2007).

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