Arbitrator Challenges: Too Many Or Not Enough?
Contemporary Issues in International Arbitration and Mediation: The Fordham Papers, Chapter 8, 2015
10 Pages Posted: 22 Oct 2015 Last revised: 20 Feb 2018
Date Written: October 20, 2015
Some critics contend that the IBA Guidelines on Conflicts of Interest in International Arbitration unnecessarily expanded the scope of arbitrator disclosure obligations and, consequently, led to increased challenges to arbitrators and awards. This critique is most forcefully argued by Gary Born in the second edition of his treatise. Citing statistics from various arbitral institutions, he argues that there is an increase in challenges of "more than 50%" after passage of the Guidelines and, he concludes, this increase is cause for concern.
This book chapter offers an alternative hypothesis and basis for assessment. Specifically, we reject the notion that the relevant vantage point for assessment is pre- and post-enactment of the Guidelines. Rather, we postulate that enactment of the Guidelines would likely have caused a spike in challenges upon enactment, followed by an overall reduction in the number of challenges. The reduction, we hypothesize, would occur as a result of the Guidelines' clearer indication about what categories relationships can be effectively challenged.
Ultimately, limitations in the data preclude any definitive support for our hypothesis, even if some data appear to provide modest support. The most significant limitation in the data is that there are simply too few cases. Thus, while Stockholm Chamber of Commerce reports a significant decline in the number of challenges after 2005, the overall number of challenges is simply too small to preclude the possibility that the apparent downward trend is outside the range of standard deviation. Other limitations in data include inconsistent reporting across institutions regarding the number of challenges that were upheld by the institution and absence of any indication when a single anomalous case has produced numerous challenges.
Even if there were an increase in overall challenges after enactment of the IBA Guidelines, however, various other hypotheses may explain such increase, including increased diversification of participants and arbitrators, increased pressure for greater transparency, and lower tolerance for conflicts of interest.
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