Roy Cohn, the well-known US lawyer, said, “I don’t want to know what the law is, I want to know who the judge is”. One of the advantages of arbitration over court litigation is that the parties know from the outset the arbitrator(s) who will be making the decisions in their case. As international arbitration practitioners, we believe that by knowing the identity of the arbitrator(s) at an early stage, we can better predict how a case may play out: how a tribunal is likely to respond to particular interlocutory applications; what their view of the “merits” might be; how long it might take to get a decision. In disputes where arbitrators are party appointed, parties want as much knowledge of potential arbitrators as possible before appointing them. In disputes where arbitrators are appointed by arbitral institutions, parties want to better understand the arbitral selection process and have as much information about the arbitrators once appointed.
In recognition of the importance of arbitration transparency, the 2018 International Arbitration Survey (often referred to as the White & Case/ Queen Mary survey) contained several questions aimed at addressing the arbitrator selection process:
- Question 12 asked, “what are the three worst characteristics of international arbitration?” It included (as options to tick) a lack of insight into arbitrators’ efficacy, and a lack of insight into how institutions select and appoint arbitrators.
- Question 26 asked, “Where do you find your information about arbitrators?” The options included internal colleagues, external counsel and publicly available information.
- Question 27 asked, “Do you have access to enough information to make an informed choice about the appointment of arbitrators?
- Question 28 was, “What information would you like to have about arbitrators that you currently do not have, or do not have enough of?”
The findings were published in the survey (see in particular charts 4 and 19 to 21 and the accompanying commentary). Transparency issues were not identified as being in the top three worst characteristics of international arbitration, but the fifth and seventh worst characteristics were insight into arbitrators’ efficacy and lack of insight into how institutions select and appoint arbitrators respectively.
The majority of respondents identified “word of mouth” followed by “from internal colleagues” as the sources of information about arbitrators. The authors of the survey interviewed a number of practitioners working in large-scale international law firms who confirmed that their firms’ internal intelligence is the primary, if not exclusive, source of information they think of when considering an arbitrator. This in turn indicates a potential imbalance between users of the system, between those who can obtain information about arbitrators from their well-informed peers and those who do not have access to such information. The third most identified source was publicly available material; respondents and interviewees identified GAR’s Arbitrator Research Tool as a useful source and expressed interest in other such tools. Such tools would help the imbalance identified by the survey.
The majority of respondents (70%) indicated that they had sufficient information about arbitrators. However, only 57% of in-house counsel thought that they had sufficient information. Once again, this indicates an imbalance between users of the system and indicates the need for more publicly available information.
The final question relating to transparency was an open question allowing participants to set out their ideas. The authors of the survey were able to identify a number of recurrent themes, most of which revolved around current and past professional activity as arbitrators. Respondents were particularly interested in previous decisions and awards rendered by arbitrators and, in particular, an arbitrator’s approach to procedural issues, including, for example, their case management preferences and degree of proactivity. Respondents were also interested in arbitrators’ approaches to substantive issues, including the legal issues which arbitrators have grappled with before. Perhaps unsurprisingly, these comments were not accompanied with many suggestions on how such data could realistically be made available.
Arbitral institutions are well placed to be proactive and take the lead on these issues; many institutions have started to provide such tools. Academic institutions also have a role to play: see projects such as Queen Mary University of London’s Arbitrator Intelligence, which provides objective data on arbitrators. Details of these are set out in Practical Law’s practice note, Transparency in Arbitration. Institutions and users can also help by organising events like that recently hosted by HFW (together with 20 Essex Street and Quadrant Chambers), where female commodities arbitrators met with those in a position to appoint them to be able to discuss their experience of arbitration and their approach to arbitrations. Such events give users of arbitration a unique opportunity to ask potential arbitrators about their experience of particular types of disputes, and also their approaches to case management and the length of time they usually take to produce an award. They may also help diversify the pool of potential arbitrators, thereby killing two birds with one stone.