Arbitrator selection: getting it right from the start
Over the last decade arbitration has been adopted by an increasing number of parties operating in a wider variety of sectors. There are a number of factors in play in relation to these choices of dispute resolution mechanism, but having the opportunity to select an arbitrator is a particularly powerful pull factor.
The choice of arbitrator is highly significant, not only influencing the final outcome in the arbitration award itself, but also impacting on whether the procedure is well managed throughout. Corporates with the right arbitration clauses in their contracts can select an arbitrator with the appropriate understanding of their sector and regional business culture and can also select someone they believe has the case management skills to deliver an appropriate procedure.
Arbitrator selection is currently a hot topic, with many corporates increasingly focusing on arbitrator diversity. In-house legal teams are expecting law firms to present diverse shortlists, rather than a list drawn from the same narrow pool. These developments are requiring lawyers to look beyond their usual candidates when they appoint.
In an article for Financier Worldwide, John McElroy and Rebecca Warder look at the importance of incorporating a well-crafted arbitration clause and then complying with the relevant provisions once a dispute arises. They assess the subscription-based and free arbitrator selection tools and look at how trust remains critical to arbitrator research and selection. The authors also look at the key considerations to take into account when reviewing candidates, including whether they are from a civil or common law background, their arbitrator experience, diary availability and potential conflicts.
As the Supreme Court emphasised in Halliburton v Chubb, party-appointed arbitrators must decide the case on its merits, without being influenced by which party has appointed them. The same standards of fairness and impartiality are expected of the party-appointed arbitrators and the chair of the tribunal. This said, arbitration users’ confidence in the arbitral process is undoubtedly enhanced by selecting an arbitrator they consider likely to well understand the background to the dispute and the position the appointing party takes on the disputed legal and factual issues.
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