The Selection of ICC Arbitrators and the Requirement of Independence

Abstract

EVERYONE is familiar with the expression that ‘An arbitration is only as good as the arbitrator.’ But having an arbitrator with the finest legal skills might still result in a less than ‘good’ arbitration if a party fails to participate or to honour voluntarily the resulting award because of its belief that the arbitrator lacked the requisite independence and neutrality. Indeed, parties would never agree to arbitration in the first place unless they had confidence that the arbitration system concerned would take every reasonable measure to ensure the independence and neutrality of the arbitral tribunal. Thus, an unstated corollary to the above-quoted expression is that ‘An arbitrator must not only be good, but should be seen to be good.’ The ICC Rules and practice relative to the constitution of the arbitral tribunal are precisely designed to produce an arbitral tribunal which is ‘good’ both in reality and in the eyes of the parties as well. This task is perhaps especially challenging in ICC arbitration because of the extreme diversity of nationalities, legal systems, and cultures, in every conceivable combination, involved in ICC arbitrations. During 1987, for example, the 285 requests for arbitration received involved parties from 77 different countries and the ICC Court confirmed or appointed arbitrators of 44 different nationalities. ICC Arbitration endeavours to combine the flexibility of ad hoc arbitration with the advantages of institutional, supervised arbitration. This approach is as evident in the rules and practices related to the constitution of the arbitral tribunal as elsewhere. As in ad hoc arbitration, parties to an ICC arbitration have almost complete autonomy in the selection of the person they wish to propose as sole arbitrator, co-arbitrator or chairman of an arbitral tribunal. There is no ‘list’ of approved ICC arbitrators. Indeed, while a person who has served as an …