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There recently has been a seeming increase in the number of challenges to disqualify arbitrators in investor-State arbitrations and an increasing number of such challenges that are successful. Some of these challenges, including the recent cases of Caratube v. Republic of Kazakhstan and CC/(Devas) Mauritius v. Republic of India, have reportedly included discussion of so-called “issue conflicts,” where an arbitrator had previously set out in prior cases or scholarly writings his positions on questions of law or fact relevant to the arbitration at hand. In light of these developments, an ICCA-ASIL Joint Task Force co-chaired by Professor John Crook and Professor Laurence Boisson de Chazournes convened a meeting to solicit input and ideas on issue conflicts in international arbitration.
As a threshold matter, the group came to a general consensus that the topic of issue conflicts was an important topic that deserved serious attention and guidance. Although there was a recognition that the concern about “issue conflicts” may in some cases be “manufactured” by counsel as a tactical ploy, the fact is that arbitrators are being challenged, and in some cases removed, on these grounds. It is therefore important for the international arbitration community to look into this issue to address any perception of a lack of integrity in the system.
The group also discussed whether any guidance from the Task Force should focus on investment arbitration or also include commercial arbitration. Focusing exclusively on investment arbitration seemed to provide a number of methodological advantages in that the relevant cases and decisions may be more publicly accessible and the number of potential issues may be more manageable. In any event, there was a belief that even if guidance was tailored for investment arbitration, it likely would be helpful for commercial arbitration as well.
Among the potential types of issue conflicts that could arise included a situation whereby an arbitrator was challenged for expressing views in scholarly writings. Whereas tribunal awards may be a product of collective decision-making and compromise, an arbitrator’s scholarly writings may be more representative of the arbitrator’s opinions on certain topics. A strong concern was raised, however, that there would be a chilling effect if scholarly writings could give rise to issue conflicts. Prolific academic professionals could be prevented from serving as arbitrators in a large number of cases while arbitrators would have a strong incentive to reduce or restrict their scholarly contributions.
Recognizing the difficulties inherent in addressing this topic, the Task Force considered whether it may be best to provide a type of restatement that sought to describe and analyze existing decisions on issue conflicts as opposed to attempting to formulate guidelines. Either way, the Task Force indicated that it would carefully consider the helpful comments made during the meeting and keep the arbitration community informed of its progress and work on this important topic.
Hansel Pham is a partner in the Washington D.C. office of White & Case LLP specializing in international arbitration and litigation.