Investor-State Arbitrator Disqualified for Pre-Appointment Statements on Challenged Measures

Abstract

FEW ISSUES are as important in the practice of international arbitration as the circumstances that disqualify an arbitrator from serving in that capacity. Yet guidance on this critical issue is exceedingly general. Published decisions on challenges to arbitrators are almost as rare as unicorns – the notable exceptions being the handful of decisions of the appointing authority for the Iran-United States Claims Tribunal and the even fewer published decisions by members of tribunals or annulment committees established under the ICSID Convention.1 The reasons for this lack of published guidance are twofold. First, international commercial arbitrations have traditionally been private. The private nature of the proceedings has led to a general hesitation on the part of participants to publish information concerning them. Secondly, challenges often focus on the conduct or relationships of highly respected international arbitrators. Participants often likely avoid publication of information concerning challenges on grounds of discretion. Neither of these reasons fully justifies the dearth of published information on this important subject. The first of these concerns – maintaining the privacy of commercial arbitration proceedings – presents more of a logistical issue than a substantive one. It is not difficult to describe the parties and the subject of an arbitration in terms sufficiently general to preserve the privacy of the proceedings where desirable, and yet to provide sufficient detail to make clear the pertinent issues and their resolution. The Yearbook of International Commercial Arbitration has admirably proved this point year after year. And in an increasing number of arbitrations, such as those under the NAFTA's investment chapter, the expectation that the proceedings will be private does not hold. The second concern – that publication will damage the reputations of respected international arbitrators – is overdone. Challenges are rarely based on conduct or relationships of arbitrators that call into …