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Dual Hats and Arbitrator Diversity: Goals in Tension

Published online by Cambridge University Press:  31 December 2019

John R. Crook
John R. Crook*
Affiliation:
George Washington University Law School; NATO Administrative Tribunal; independent arbitrator.
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Extract

I want to raise a quandary facing international investment dispute settlement: the tension between the wish to curb “dual hatting” and the wish to increase the diversity of persons appointed as arbitrators.

Type
Assessing Professional and Judicial Integrity in International Tribunals
Information
Proceedings of the ASIL Annual Meeting , Volume 113 , 2019 , pp. 213 - 216
Copyright
Copyright © 2019 by The American Society of International Law

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Footnotes

This panel was convened at 9:00 a.m., Friday, March 29, 2019, by its moderators, Jan Dunin-Wasowicz of Hughes Hubbard & Reed LLP and Philip Nichols of the University of Pennsylvania Wharton School of Business, who introduced the panelists: John Crook of the NATO Administrative Tribunal; Chiara Giorgetti of the University of Richmond School of Law; Kate Parlett of Twenty Essex; and Hélène Ruiz Fabri of the Max Planck Institute Luxembourg.

The author, a former State Department lawyer, serves as arbitrator in IIDS cases. At the time of writing in June 2019, a fuller version of these remarks is expected to appear in AJIL Unbound.

References

1 Michael D. Goldhaber, Madame La Presidente – A Woman Who Sits as President of a Major Arbitral Tribunal Is a Rare Creature. Why?, 1 Transnat'l Disp. Mgmt. (2004).

2 Philippe Sands, Reflections on International Judicialization, 27 Eur. J. Int'l L. 885 (2017).

3 The United States has of course repudiated the Trans-Pacific Partnership. White House Press Release, Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement (Jan. 23, 2017).

4 ICSID, 2018 Annual Report, at 32.

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

6 Id.

7 ICSID, Arbitrators, Conciliators and Ad Hoc Committee Members, at https://icsid.worldbank.org/en/Pages/arbitrators/CVSearch.aspx. This ICSID database appears to offer a rich vein for analysis of the IIDS arbitrator population.

8 Malcolm Langford, Daniel Behn & Runar Hilleren Lie, The Ethics and Empirics of Double Hatting, 6 Esil Reflections 3, 4 (2017).

9 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–.26 (2014).

10 Luke Eric Peterson, In an Apparent First, an Arbitrator Is Disqualified from Tribunal After State Objects to His Serving as Counsel to Investor on Parallel Case Where Jurisdiction Over Intra-EU Claims Was at Issue, Inv. Arb. Rep. (Dec. 13, 2018).

11 Berwin Leighton Paisner, International Arbitration Survey 2016: Are We Getting There?, BLPLaw.com.

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

13 See Arbitration Pledge, at http://www.arbitrationpledge.com.

14 International Chamber of Commerce Press Release, ICC Court Releases Full Statistical Report for 2017, at https://iccwbo.org/media-wall/news-speeches/icc-court-releases-full-statistical-report-for-2017.

15 G.J. Horvath & R. Berzero, Arbitrator and Counsel: The Double-Hat Dilemma, 10 Transnat'l Disp. Mgmt. 5, 13, 19 (2013).

16 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).

17 Langford, Behn & Hilleren Lie, supra note 8, at 11.

18 Luke Eric Peterson, Three Crowns Lawyers Step Down from Serving on Arbitral Panels that Are Charged with Looking at Implications of Achmea Decision, Inv. Arb. Rep. (Aug. 8, 2018).