The nature of an arbitration (and consequently of other forms of ADR, but more especially adjudication and expert determination) appointment is discussed elsewhere within this website: as to 'appointing an arbitrator', please consult ARBITRATOR SELECTION and as to 'choosing an arbitrator', please consult ARBITRATOR APPOINTMENT. Both appointing an arbitrator and choosing an arbitrator (and likewise an adjudicator or expert determinator) may require a pre-appointment meeting with the prospective arbitrator, adjudicator or expert determinator. The Chartered Institute of Arbitrators ("the CIArb") has issued 'Practice Guideline 16: The Interviewing of Prospective Arbitrators' ("the Guideline"). The Guideline as annotated is reproduced below. I believe the logic of the Guideline is equally applicable to adjudicators and expert determinators. A pre-appointment meeting will be subject to the Guideline as annotated. A pre-appointment meeting is most likely to be thought necessary by the parties in ad hoc arbitrations, or indeed ad hoc adjudications and ad hoc expert determinations. A pre-appointment meeting may well also be thought necessary or advisable in tribunal appointments were either: (i) the tribunal rules allow the parties to choose their arbitrator, adjudicator or expert determinator, and/or; (ii) the tribunal rules do not provide sufficient detail as to the likely costs of (or perhaps rules that can be adopted by) either the arbitrator, adjudicator or expert determinator.
Whilst I also travel widely within the UK, especially to the English Midlands and North, I live, work and holiday, predominately in London, Gibraltar and Mombasa. My ADR practice (outside of Gibraltar) is a separate practice to that of my local legal and accounting practices. It is thus preferable that pre-appointment meetings to consider my appointment (as an arbitrator, an adjudicator, or mediator) should not occur in my local legal or accounting practice offices. An appointment as an expert determinator however, may well fall within my accounting practice and be charged and treated as such.
The Guideline states: 'The interview should be conducted in a professional manner in a business location, and not over drinks or a meal'. However I do not consider that the Guideline dictates a meeting only in a private office, provided that the meeting venue is still in a business location and that only tea or coffee is provided. The hire of a private room may necessitate potentially unnecessary cost.
The following venues are convenient for a pre-appointment meeting:
...at the bottom of Tower 42, 25 Old Broad Street, London EC2N 1HQ.
Whilst a public cafe the venue offers cubicles with seating for up to 5 people and is in the main used for business meetings. It is also close to my London accounting office. I regularly hold business meetings at Cafe SO Deli. If the location is felt to be appropriate but not the public venue, then at a cost, rooms can be hired from Tower 42.
Members Room, the Institute of Chartered Accountants in England and Wales, One Moorgate Place, London EC2R 6EA.
Chartered Accountants parties may (or indeed may not) feel comfortable at Chartered Accountants' Hall. I regularly hold business meetings at the Institute. If the location is felt to be appropriate but not the public venue, then at a cost, rooms can be hired from the Institute.
100-113 Chancery Lane, London WC2A 1PL.
Solicitor parties may (or indeed may not) feel comfortable at the Law Society HQ.
Malindi Road, Mombasa, Kenya.
Whilst there are numerous hotels in the greater Mombasa area with business facilities, I have a house near this hotel. If the hotel location but not the public venue is felt to be appropriate, then at a cost a separate meeting room can be hired from the hotel.
Suite 7, Hadfield House, Library St, Gibraltar, houses my Gibraltar accountancy practice, Meredith. Details of how you can travel to Gibraltar is contained on the website of Meredith.
50 Dearmans Place, Salford, Lancashire M3 5LH
Situated close to where I stay, when in Manchester. It is centrally located & makes a great NW meeting point, having ample parking, but being centrally located.
University Park, Nottingham, Nottinghamshire NG7 2RD
Meeting rooms are available & if agreed by potential arbitrants, students can sit in on any arbitation meeting.
CHARTERED INSTITUTE OF ARBITRATORS PRACTICE AND STANDARDS COMMITTEE
Practice Guideline 16: The Interviewing of Prospective Arbitrators1
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)  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
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.
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
(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
(5) The interviewee arbitrator should be permitted to be accompanied
by a secretary or pupil or other assistant to take a note of
(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
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
(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
(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