A Window into the Soul of International Arbitration: Arbitrator Selection, Transparency and Stakeholder Interests

New Zealand Law Foundation International Dispute Resolution Lecture 2013, delivered at Stone Lecture Theatre, University of Auckland Faculty of Law, 26 November 2013. This essay derives from that lecture, which considers the important issue of arbitrator selection, appointment and challenge standards and procedures, and introduces the Arbitrator Intelligence project - a proposed solution for informational asymmetries that can affect the fairness of arbitrator selection and appointment

Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only illuminates at a descriptive level the reasons why the different nations of the world have adopted different ethical regimes; it also guides at a prescriptive level for developing new ethics for other systems, such as international arbitration

Restating the U.S. Law of International Commercial Arbitration

In December 2007, the American Law Institute ( ALI ) approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the Restatement ). On February 23, 2009, the Restaters and authors of this Essay presented a Preliminary Draft of a chapter of the Restatement (the Draft ) at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some reflections of the Reporters from the process of producing and presenting the Draft. Subsequent Drafts have been produced and approved by the ALI

The Vocation of International Arbitrators

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often used by groups to distinguish themselves, but with international arbitrators, their supposed professionalization is not a particularly compelling reason for distinguishing them from other service providers, such as lawyers. Instead of relying on the rubric of sociological accounts, I offer a preliminary conceptual analysis of the normative underpinnings of the vocation of the international arbitrator. I argue that, unlike settlement or mediation, the aim of international arbitration is to render justice, not to simply resolve disputes. I provide an overview of the ways in which the practice of international arbitration bears out this hypothesis through its development of a vibrant, if perhaps still fledgling, public realm. Finally, I return to the market for international arbitrator services and their efforts at self-regulation, evaluating them in light of obligations and expectations attendant with their justice-providing function and the public realm of the international arbitration system. I propose certain innovations that would increase the rigor and transparency in international arbitrator\u27s self-regulation, including minimizing existing information asymmetries that affect the market for arbitrator services. These improvements may be regarded as having been implicitly promised through their professional impulse and by their justice-providing role, but to date have been elusive

International Arbitration, Judicial Education, and Legal Elites

This essay sketches an account of how investment arbitration affects development of local legal institutions, in particular domestic courts. When investment arbitration is introduced into a local legal environment, it becomes integrated with international commercial arbitration, and often domestic arbitration. This integration occurs because the local economic elites, private law firms, and local businesses that deal with (or compete with) foreign investors and investment arbitration disputes also deal with international commercial matters, international commercial disputes, and domestic arbitration

The Vocation of International Arbitrators

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often used by groups to distinguish themselves, but with international arbitrators, their supposed professionalization is not a particularly compelling reason for distinguishing them from other service providers, such as lawyers. Instead of relying on the rubric of sociological accounts, I offer a preliminary conceptual analysis of the normative underpinnings of the vocation of the international arbitrator. I argue that, unlike settlement or mediation, the aim of international arbitration is to render justice, not to simply resolve disputes. I provide an overview of the ways in which the practice of international arbitration bears out this hypothesis through its development of a vibrant, if perhaps still fledgling, public realm. Finally, I return to the market for international arbitrator services and their efforts at self-regulation, evaluating them in light of obligations and expectations attendant with their justice-providing function and the public realm of the international arbitration system. I propose certain innovations that would increase the rigor and transparency in international arbitrator\u27s self-regulation, including minimizing existing information asymmetries that affect the market for arbitrator services. These improvements may be regarded as having been implicitly promised through their professional impulse and by their justice-providing role, but to date have been elusive

Proposals to Expel Palestinians from the Occupied Territories as Catalyst for a Civil Adjudication Campaign

I begin in Part II with a brief sketch of the history of stated policies to expel Palestinians from what is now Israel and the Occupied Territories, and then examine recent proposals that have been made and actions that have been taken to implement modern re-articulations of those historic policies. In Part III, I then review the grounds on which international law proscribes mass expulsions of indigenous and occupied peoples. While international law governing this issue is clear in its application and has been overwhelmingly endorsed by the larger international community, international law seems to have little influence on Israel\u27s conduct. For this reason, my primary focus in this Essay will not be to analyze the international law issues, which have been exhaustively discussed elsewhere. I focus instead, in Part IV, on the enforcement of this well-established international law through private law suits. I review both civil adjudication\u27s promise as an enforcement mechanism and the many obstacles that stand in the way of its success. I cannot in the space of this Essay analyze or resolve all obstacles, but I hope to outline the various benefits and limitations of adjudication as a response to human rights violations in this context, and to proffer a checklist of some of the important practical considerations entailed in launching an international civil litigation campaign on behalf of Palestinians

Regulating International Arbitrators: A Functional Approach to Developing Standards of Conduct

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators\u27 professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can be refused enforcement). These problems have become aggravated in recent years as social and economic pressures in the international arbitration system have highlighted the need for clearer standards of conduct. To develop new standards, I argue for application of what I have elsewhere dubbed a functional approach to ethics. This theoretical approach is grounded in the relationship between morality and role, and posits that professional ethical norms are designed to correspond with the functional inter-relational roles assigned to actors within a particular adjudicatory system. I develop this theory through an archetypal model that is based on Fuller\u27s theory of adjudication. From there, I trace how shifts in adjudicators\u27 roles reshape and recalibrate their ethical obligations in various contexts, including the various permutations in U.S. civil litigation and ultimately arbitrators in the international context. While I do not undertake to prescribe specific rules, I apply the functional approach to two particularly important aspects of arbitrator impartiality obligations - the impartiality obligations of the party-appointed arbitrator and the duty to disclose potential conflicts during the selection process. Through this analysis, I help reconfigure the underlying debate by clarifying its terms and identifying the source from which the specific ethical rules should be crafted

Reconceptualizing the party-appointed arbitrator and the meaning of impartiality

Despite the popularity of the age-old practice, several prominent arbitrators and industry leaders have proposed eliminating party-appointed arbitrators. These critics contend that party-appointment injects bias into a tribunal that is supposed to be impartial. Various empirical studies seem to confirm the uncomfortable contradiction between the rhetoric of impartiality and the purportedly biased conduct of party-appointed arbitrators. Most of these empirical claims, however, are deeply flawed both in their substance and methodology. More fundamentally, these claims ignore Legal Realism’s insight that decision-maker “bias” (or reliance on extra-legal factors) is an inevitable consequence of law’s inherent indeterminacy. If some forms of bias are inevitable, it does not make sense to ask whether bias exists. Instead, more nuanced questions must be asked: Which forms of bias are legitimate? Who decides which forms of bias are legitimate? And how do we police the boundary between legitimate and illegitimate forms of bias? This Article answers these questions with respect to party-appointed arbitrators. Rejecting both critiques and defenses, this Article makes an affirmative case for party-appointed arbitrators. This Article reconceptualizes party-appointed arbitrators as an essential structural check against various forms of cognitive bias that necessarily exist among all arbitrators on all arbitral tribunals. Arbitrators’ cognitive biases cannot be eliminated, even by eliminating party-appointed arbitrators. They can, however, be bounded and counter-balanced by reconceiving party-appointed arbitrators as a type of Devil’s Advocate that guards against the cognitive biases that distort tribunal decision making. In this reconceptualized role, party-appointed arbitrators serve three important functions: 1) They provide a check against individual- and group-based cognitive biases 2) They also ensure representativeness on the tribunal; and 3) they provide a structural counterweight to the opposing party-appointed arbitrator. This reconceptualized role, in turn, delimits a range of specific impartiality obligations that are both more conceptually coherent and more consistent with actual practice and expectations