Adjudicator, Advocate, or Something in Between? Coming to Terms with the Role of the Party-Appointed Arbitrator

Abstract

The disturbing revelations arising out of the Croatia-Slovenia arbitration have underscored the importance of having a clear understanding of the role of the party-appointed arbitrator. The problem can be traced at least in part to the tension between the arbitrator’s personal incentives and professional obligations. On the one hand, the party-appointed arbitrator owes his appointment to the favour of his appointer. How the appointer assesses his performance will likely have a bearing on the appointee’s prospects of future appointments. But any such assessment will be from the subjective perspective of the appointer and will almost inevitably be tied to the outcome of the matter. This can create an economic incentive for the appointee to be sympathetic to the appointer’s case. On the other hand, most members of the arbitration community still hold to the view that there subsists a professional obligation of impartiality which inheres in the office of arbitrator and which is not to be diminished at all in the case of a party-appointed arbitrator. This requires not only that he act fairly, but also that he be seen to be doing so. This article examines the functions, duties and obligations of the party-appointed arbitrator from preappointment consultations to the final discharge of the mandate, and suggests some practical rules of engagement and best practices that emerge from the analysis. It also proposes a systematic approach to arbitrator regulation in the establishment of a central body to oversee the discipline of international arbitrators.