Reasoned Decisions in Arbitrator Challenges

Abstract

When an arbitrator in an institutional arbitration is challenged for lacking independence or impartiality, most of the time parties will not be provided a reasoned decision explaining the success or failure of the challenge. Recently, however, the London Court of International Arbitration has published digests of challenge decisions that have been sanitized, that is, the names or other identifying information have been removed. In addition, challenge decisions published in ICSID cases are extensively reasoned, and not sanitized.

Reasoned decisions are important and should be encouraged. They provide transparency and help parties understand how the process works. The reasoned decisions teach what relationships and what conduct cannot be tolerated in the arbitral arena. They educate counsel about what circumstances may cause an arbitrator to be challenged, and they educate arbitrators as to what circumstances should cause them not to accept an appointment. Public scrutiny of challenge decisions shines a light on the decision-making process, so that both its strengths and its weaknesses become apparent. By permitting a broad understanding of weaknesses in the system, transparency may also create the possibility of improving that system.

Keywords: International arbitration, arbitrator challenges, arbitration challenge decisions

JEL Classification: K33, K41