LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish

Abstract

USERS OF the arbitral process are faced with an increasingly disturbing difficulty. In deciding whether to nominate or challenge arbitrators, they have no access to the principal sources of arbitral jurisprudence on arbitrator conflicts of interest and challenges to arbitrators. Those sources lie within the major arbitral institutions themselves, in the form of accumulated decisions on past challenges, which are veritable treasure troves of learning on how the abstract standards of impartiality and independence are applied in concreto. Until now, those treasure troves have been largely kept under lock and key by the major institutions. While the odd challenge decision has escaped into the public domain to tantalise users as to the jurisprudential riches that remain hidden within, such occurrences have been all too rare. As a result, parties have been obliged to challenge arbitrators, or defend such challenges, by relying inordinately on the rare challenge decisions that do make it into the public domain; the disparate body of national court case law on independence and impartiality that is often understandably focused on the standards applied to national judges; and, perhaps above all, on intuition. Too often, parties find themselves constrained to ask whether a set of circumstances feels sufficient to justify a challenge or not. Dissatisfaction with this paucity of guidance is mounting for three reasons. First, the number of challenges of arbitrators in international arbitration is growing. Whilst once the challenge of an arbitrator might have been a relatively rare occurrence, that is no longer the case.1 According to ICC statistics, approximately 90 challenges were made in ICC cases in the five years between 1995 to 1999, compared to approximately 140 challenges made over the five-year period between 2000 and 2004.2 The SCC reports that the number of challenges of arbitrators in its cases has grown …