CHARTERED INSTITUTE OF ARBITRATORS PRACTICE AND STANDARDS COMMITTEE

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Arbitration Sub-Committee

Practice Guideline 16: The Interviewing of Prospective Arbitrators1

Introduction

1 It is part of the widely-accepted principle of party autonomy in arbitration that the parties may, subject to any constraints imposed by applicable rules and/or the arbitral law at the seat (legal place) of the arbitration, agree their [sole] arbitrator2 or, in the case of a tribunal of three, each choose a member of that tribunal (a party-appointed arbitrator - 'PAA'). A number of different appointment mechanisms are encountered in practice and, self-evidently, certain constraints exist and there are procedures contained in arbitral rules or in statute to challenge appointments.

2 The choice of PAA is an important, even critical, yet delicate task. He/she has a vital contribution to play in the effective conduct of the proceedings and the determination of the merits of the case; this is not because a PAA should advocate his/her appointing party's case (this practice is, worldwide, prohibited or, as a minimum, disapproved of) but because the PAAs:

(a) choose the third, presiding, arbitrator, and
(b) play a role in ensuring that both parties' cases and legal cultures are given appropriate consideration during the procedural stages of the arbitration and when the merits are discussed.

3 Given that substantial sums of money might rest in the hands of the tribunal, and given the right of each party to choose its PAA, should a party make such choice based solely on CVs, websites or word-of mouth recommendations? Necessarily, these might not give a complete picture of the appointee and it is common practice, in some jurisdictions but not in others, that the appointor interviews a list of prospective PAAs prior to making the appointment. Such a practice undoubtedly carries certain risks but practical experience shows that a comprehensive interview can be conducted without jeopardising the PAA's neutrality, independence or impartiality. However, there appear to be no institutional ground rules addressing the interview process although the distinguished US arbitrator, Gerald Aksen, has made suggestions which have been incorporated into these Guidelines.

4 In preparing these Guidelines, the Chartered Institute has consulted widely across many jurisdictions and different legal cultures. While there have been statements of strong opposition to the principle of the interview process and, therefore, to there being any Guidelines at all, the overwhelming majority of responses have been very supportive, a common theme being that, since the interview process is not only not well understood as regards the right/wrong approach but is also open to abuse and manipulation, the publication of a Guideline will bring much-needed light where there is presently only murk.

5 For the avoidance of doubt, this Guideline does not seek to address partisan behaviour where either the appointor looks for a hired-gun/closet advocate as PAA or where the PAA, consciously or otherwise, acts in a partisan manner. Challenge procedures (e.g. Articles 12 and 13 of the Model Law or equivalents in other laws or in arbitral rules) exist to deal with such circumstances.

6 The Guidelines also apply to the interviewing of prospective sole arbitrators and prospective chairs and include specific safe guards in relation to these (less common) situations.

Why Interview ?

7 In an article 'Practical Guidelines for Interviewing, Selecting and Challenging Party-appointed Arbitrators in International Commercial Arbitration' (Bishop/Reed in 'Arbitration International' Vol. 14 ?.4 at 395), the authors state:

'The ability to appoint one of the decision-makers is a defining aspect of the arbitral system and provides a powerful instrument when used wisely by a party. It is also a truism that a party will strive to select an arbitrator who has some inclination or predisposition to favour that party's side of the case such as by sharing the appointing party's legal or cultural background or by holding doctrinal views that, fortuitously, coincide with a party's case. Provided the arbitrator does not "allow this shared outlook to override his conscience and professional judgment' (Redfern & Hunter) this need carry no suggestion of disqualifying partiality. This is a natural and unexceptional aspect of the party appointment system in international arbitration. There is a distinction to be drawn, however, between a general sympathy or predisposition and a positive bias or prejudice. Bias in favour of, or prejudice against, the party or its case encompasses a willingness to decide a case in favour of the appointing party regardless of the merits or without critical examination of the merits.'

8 A US perspective is:

"If... one of the principal functions of a party-appointed arbitrator is to give confidence in the process to the parties and their counsel, some basis for that confidence needs to be established. Sometimes that confidence can be based on mutual acquaintances, without direct personal contact; some potential arbitrators become well known through published writings, lectures, committee work or public office. Others are not so well-known, and I understand that lawyers or clients or both want to have a first-hand look. I think, however, that some restraint should be so shown by both sides." ('The Party-Appointed Arbitrator in International Controversies: Some Reflections' (Professor Lowenfeld) [1995] 30 Texas Int. Law Journal at 59).

9 Redfern & Hunter state:

'However, it is hard to perceive the practice [i.e. of interviews] as being objectionable in principle, provided that it is not done in a secretive way and that the scope of the discussion is appropriately restricted.' (Law & Practice of International Commercial Arbitration'; 4th ed. at 4-50)

10 The ABA's 'Code of Ethics for Arbitrators in Commercial Disputes' (9th February 2004) appears to be the only formal regulatory document which addresses the interview process; it states as follows:

"When the appointment of a prospective arbitrator is being considered, the prospective arbitrator: (a) may ask about the identities of the parties, and the general nature of the case; and (b) may respond to inquiries from a party or its counsel designed to determine his or her suitability and availability for the appointment. In any such dialogue, the prospective arbitrator may receive information from the party or its counsel disclosing the general nature of the dispute but should not permit them to discuss the merits of the case." (Canon III Paragraph B(1)).

11 Certain information must in any event be disclosed by the prospective appointor before the arbitrator can contemplate accepting the appointment: the names of the parties in the dispute and any third parties involved must be disclosed in order for the arbitrator to assess his position with regard to conflicts and it may be necessary for the prospective appointor to disclose the names of other dramatis personae. Some information about the nature of the dispute must be disclosed: for example, there is a substantial difference between expertise in building (i) billion-dollar offshore construction platforms (ii) LNG carriers and (ii) petrochemical refineries although all three might be seen as 'oil & gas construction'. It is also reasonable that the location of the project be disclosed since the conduct of business varies in different parts of the world and the US business environment is not the same as that in South Asia, West Africa or England.

Preamble to the Guidelines

12 These Guidelines are available for use in any applicable circumstance in any jurisdiction and may be used both by those who are members of the Chartered Institute and by those who are not. It is expected that members of the Chartered Institute will adhere to these Guidelines, whether in the capacity of interviewee arbitrator or as interviewer. Where prospective arbitrators are contacted or are to be contacted by telephone with what is intended as a routine availability/fees enquiry, both contactor and contactee may wish to bear these Guidelines in mind.

The Guidelines

13 The following guidelines are to be considered as recommendations and do not carry any implication of being mandatory.

(1) In agreeing to be interviewed, the prospective arbitrator should make the basis upon which the interview is to be conducted, whether such is to be these Guidelines or otherwise, wholly clear and in writing to the interviewing party, whether that be the party itself, its legal advisers, or both.3

(2) These Guidelines may, by agreement, serve as the basis upon which the interview is to be conducted, with such additional restraints and safeguards, whether suggested by interviewer or interviewee and as agreed between them in advance, as may be appropriate in individual circumstances.4

(3) It should be clearly understood that appointment as arbitrator does not carry with it any obligations to the appointing party except the generally-accepted obligations of all arbitrators of ensuring (i) that (where provided for) an appropriate chair/presiding arbitrator is selected and (ii) that the parties' cases are both understood and fully considered in the tribunal's deliberations - this is wholly different to arguing a party's case.

(4) Where there is to be a sole arbitrator, he/she should not be interviewed except by the parties jointly or, if one of the parties wishes to conduct an interview and the other party does not, the interview should proceed with a representative of the latter in attendance as observer; the latter party should not unreasonably refuse to co-operate.

(5) The interviewee arbitrator should be permitted to be accompanied by a secretary or pupil or other assistant to take a note of proceedings.

(6) The constitution of the interviewing team should be made known to the prospective arbitrator in advance and, at the outset of the interview, it should be made clear who will lead it and how it will be conducted.

The interview should normally be led by a senior representative of the interviewing party's external lawyers.

(7) Either a tape recording or a detailed arbitrator's file note should be made of the interview and the tape or the file note disclosed to the other side in the dispute, and to the appointing body, at the earliest available opportunity.

(8) The mere fact of there having been an interview should not, per se, be a ground for challenge.

(9) The following may not be discussed either directly or indirectly:

(i) the specific circumstances or facts giving rise to the dispute
(ii) the positions or arguments of the parties
(iii) the merits of the case.

(10) Subject always to the overriding provisions of Guideline 97, in order for the interviewee's suitability (expertise, experience, language proficiency and conflict status) to be assessed the following may be discussed:

(i) the names of the parties in dispute and any third parties involved or likely to be involved
(ii) the general nature of the dispute
(iii) sufficient detail, but no more than necessary, of the project to enable both interviewer and interviewee to assess the latter's suitability for the appointment
(iv) the expected timetable of the proceedings
(v) the language, governing law, seat of and rules applicable to the proceedings if agreed, or the fact that some or all of these are not agreed
(vi) the interviewee's experience, expertise and availability.

(11) Subject always to the overriding provisions of Guideline 9, in assessing the interviewee's experience and expertise, questions may be asked to test his/her knowledge and understanding of

(i) the nature and type of project in question
(ii) the particular area of law applicable to the dispute
(iii) arbitration law, practice and procedure.

Such questions should be general in nature and neutrally put in order to test the interviewee and should not be put in order to ascertain his/her views or opinions on matters which may form part of the case. Questions concerning the interviewee's publishing history (if any) may be put subject to the same proviso8.

(12) The interviewee should be permitted to decline to answer any question on the grounds that it goes beyond what is categorized in Guideline 10 above, and any such declining should be accepted in good faith by the interviewer.

(13) Conversely, the interviewer should equally be permitted to decline to answer any question from the prospective arbitrator on the same basis.

(14) In the event that the interviewee comes to the conclusion that the interviewer is really seeking a partisan arbitrator or one who will not be impartial, he/she should terminate the interview forthwith and should not accept the appointment.

(15) The interview should be conducted in a professional manner in a business location, and not over drinks or a meal9.

(16) A time limit should be agreed for the interview.

(17) It is reasonable for the parties to interview prospective chairmen but such interviews should either be by the parties (or their legal advisers) jointly or, if by one of the parties, be conducted only with the attendance of the other's representative. The other party should not unreasonably refuse to co-operate.

(18) Any failed interviewee may be reimbursed his/her reasonable travel expenses for attendance at the interview but should not be reimbursed for his/her time save in exceptional circumstances.

(19) The appointee should not be reimbursed his/her travel expenses or time for attendance at the interview but, once the tribunal is constituted and arbitral proceedings under way, the appointed arbitrator should submit his/her travel expenses for reimbursement in the normal way but clearly separated and identified as relating to the interview.