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Dual Hats and Arbitrator Diversity: Goals in Tension

  • John R. Crook (a1)

Extract

This essay outlines a quandary facing international investment dispute settlement (IIDS): the tension between the wish to curb “dual hatting” and the wish to increase the diversity of those appointed as arbitrators in IIDS cases. Thoughtful observers are concerned by the effect on IIDS, either in fact or as a matter of appearance, of lawyers who wear “dual hats”—one as arbitrator in IIDS cases, and a second as counsel representing clients in other IIDS matters. Concurrently, other thoughtful observers are concerned that appointments to IIDS predominantly go to a small cadre of established arbitrators caricatured as “pale, male and stale.” This concern has prompted efforts to increase the pool of female and minority arbitrators. However, these individuals would be drawn primarily from the ranks of younger practicing lawyers who must continue to practice unless and until they receive sufficient appointments to make full-time service as arbitrators economically feasible.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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2 Senator Warren's aside illustrates an important distinction. Most international arbitration involves private commercial disputes between business concerns. Such “B to B” disputes typically involve the interests of the arbitrating parties and not broader community interests. Such international commercial arbitration has not been a subject of significant public concern and debate. See Günther J. Horvath & Roberta Berzero, Arbitrator and Counsel: The Double-Hat Dilemma, 10(4) Transnat'l Disp. Mgmt. 5, 19 (2013).

3 Elizabeth Warren, The Trans-Pacific Partnership Clause Everyone Should Oppose, Wash. Post (Feb. 25, 2015).

4 Philippe Sands, Reflections on International Judicialization, 27 EJIL 885 (2017).

5 Int'l Ctr. for Settlement of Inv. Disp., 2018 Annual Report 32 (2018) [hereinafter Annual Report].

6 Chiara Giorgetti, Who Decides Who Decides in International Investment Arbitration, 35 U. Pa. J. Int'l L. 431, 458 (2013) (footnote omitted).

7 Id.

8 Int'l Ctr. for Settlement of Inv. Disp., Arbitrators, Conciliators and Ad Hoc Committee Members.

9 Malcolm Langford et al., The Ethics and Empirics of Double Hatting, 6(7) ESIL Reflection 3 (2017).

10 Id. at 4.

12 The Republic of Ghana/Telekom Malaysia Berhad, Arrondissementsrechtbank [Rb.], District Court, The Hague, Challenge No. 13/2004, Petition No. HA/RK 2004.667. See Catherine A. Rogers, Ethics in International Arbitration 320, §§ 8.25–8.26 (2014).

14 Int'l Bar Ass'n, IBA Guidelines, Introduction, para. 4 (2004).

16 Annual Report, supra note 5, at 34.

17 London Ct. of Int'l Arbitration, Challenge Decision Database.

18 Int'l Chamber of Commerce, ICC Court Releases Full Statistical Report for 2017 (July 31, 2018).

19 See, e.g., Urabaser S.A. v. Arg., ICSID Case No. ARB/07/26, Decision on Claimant's Proposal to Disqualify Professor Campbell McLachlan, Arbitrator, para. 46 (Aug. 12, 2010).

20 Giorgetti, supra note 6, at 459.

21 Berwin Leighton Paisner, International Arbitration Survey 2016: Are We Getting There?, Bryan Cave Leighton Paisner (Jan. 12, 2017).

22 Gus Van Harten, The (Lack of) Women Arbitrators in Investment Treaty Arbitration, Columbia FDI Perspectives No. 59 (Feb. 6, 2012).

24 Int'l Chamber of Commerce, supra note 18.

25 Horvath & Berzero, supra note 2, at 13.

26 Id. at 10. Anthea Roberts suggests a less draconian transition process. Anthea Roberts, A Possible Approach to Transitional Double Hatting in Investor-State Arbitration, EJIL:Talk! (July 31, 2017).

27 Horvath & Berzero, supra note 3, at 14–15.

29 Langford et al., supra note 9, at 11.

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