International arbitration is a preferred method for resolving cross-border commercial and investment disputes. Arbitrators play a crucial role in shaping the arbitration process, determining the outcome of a dispute, and ensuring that the arbitration proceedings are conducted fairly, efficiently, and impartially.
A bad arbitrator rarely renders a good decision. The selection of the right arbitrator is one of the most important decisions parties need to make. The selection of a sole arbitrator is even more important, given that the sole arbitrator will be responsible for deciding the case alone. This note examines some important factors in choosing an appropriate arbitrator and the particular importance of this decision in the case of a sole arbitrator.
The Role of Arbitrators in International Arbitration
International arbitration is a private dispute resolution mechanism. Arbitrators are appointed by the parties or arbitral institutions to resolve disputes privately, unlike judges, who are state-appointed officials. This flexibility requires careful selection to ensure suitability for the case.
There are several reasons why choosing the appropriate arbitrator is important:
- Impartiality and Independence: The arbitrator must be impartial and free of bias or conflict of interest. This is especially important when there is a sole arbitrator, as the outcome of the dispute entirely depends on one single person.
- Expertise and Experience: An arbitrator possessing the necessary expertise and experience is essential for effectively navigating complex legal issues. This is particularly relevant in technical or specialized disputes such as construction or IT disputes, where arbitrators, especially sole arbitrators, must rely on their own knowledge and understanding of the complex underlying matters.
- Efficiency and Cost-Effectiveness: Selecting the right arbitrator can significantly enhance the arbitration process, reducing both time and costs. A well-chosen tribunal or sole arbitrator can expedite proceedings through decisive rulings and effective case management, preventing unnecessary delays. This efficiency benefits both parties by minimizing the financial and time burdens typically associated with arbitration.
- Enforceability of the Award: Arbitrators play a crucial role in ensuring that the final award is enforceable across relevant jurisdictions. This requires an understanding of international arbitration laws and conventions, particularly the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. A well-drafted award that adheres to legal standards reduces the risk of challenges or refusal of enforcement.
- Maintaining Neutrality: It is crucial for arbitrators to remain neutral. They must balance the interests of both parties impartially to ensure fairness and avoid any appearance of bias. Upholding strict neutrality not only protects the integrity of the arbitration process but also increases the parties’ confidence in the final award, thereby reducing the chances of any challenges.
Given these critical responsibilities, choosing an arbitrator with the right expertise, experience, and approach is essential. The arbitrator’s qualifications and decision-making style can significantly influence the efficiency, fairness, and enforceability of the arbitration process, ultimately shaping its outcome.
Key Considerations When Choosing the Right Arbitrator
Consideration No. 1: Choose an Arbitrator with Legal and Professional Expertise
Selecting an arbitrator with a strong legal background, such as a lawyer or former judge, is relevant for ensuring well-reasoned and enforceable awards. Arbitrators are normally required to justify their rulings, which may be subject to judicial review if challenged. An arbitrator’s familiarity with the specific legal framework governing a dispute is equally important. For instance, investor-State arbitration requires deep knowledge of international investment law and treaty interpretation, while commercial disputes, such as those involving construction contracts, require expertise in construction law and industry practices. By selecting an arbitrator with formal legal education and relevant practical experience, parties significantly enhance the likelihood of a fair, efficient, and legally sound resolution of their dispute.
Although a legal background is not strictly necessary, arbitration experience is important. Only someone who has participated in arbitrations can manage the process with credibility. Such experience also influences how seriously other tribunal members take an arbitrator’s opinions.
Consideration No. 2: Choose an Impartial Yet Experienced Arbitrator – Balancing Independence and Practicality
An arbitrator must be neutral and free from conflicts of interest. Parties are advised to carefully examine an arbitrator’s history, affiliations, and disclosures prior to their appointment.
While all arbitrators must remain independent of the parties, appointing an arbitrator with whom counsel has a historical professional connection – such as through bar association activities – can be advantageous. This ensures that the appointed arbitrator is independent yet not completely unknown. However, independence must not be compromised. Leading arbitration institutions, including the ICC, the SIAC, and the LCIA, impose strict disclosure requirements to prevent conflicts of interest, ensuring arbitrators remain impartial and free from any undue influence.[1]
The role of the chairperson or presiding arbitrator is distinct from that of a party-appointed arbitrator, requiring a higher level of neutrality. This neutrality goes beyond mere objectivity and often takes into account the arbitrators’ national backgrounds, as those from the same country may have similar legal and cultural viewpoints. To reduce the risk of bias, many arbitration rules and institutions strive to ensure that the sole arbitrator or presiding arbitrator does not share the nationality of either party involved in the arbitration:
- The 2021 UNCITRAL Arbitration Rules state that if the parties have not agreed on the nationality of the sole or presiding arbitrator, the appointing authority should avoid selecting an arbitrator of the same nationality as either party.[2]
- The ICSID Convention stipulates in Article 39 that “[t]he majority of the arbitrators shall not be nationals of the Contracting State party to the dispute or of the Contracting State whose national is a party to the dispute.” The ICSID Arbitration Rules (2022), Rule 14(1) stipulates that “[a] sole arbitrator or the presiding arbitrator shall not have the same nationality as any party unless the parties agree otherwise.”
- The 2020 LCIA Rules state that where the parties are of different nationalities, a sole arbitrator or the presiding arbitrator shall not have the same nationality as any party unless the parties who are not of the same nationality as the arbitrator candidate all agree in writing otherwise.[3]
- Under the 2021 ICC Rules of Arbitration, if the ICC Court is to appoint the sole arbitrator or tribunal president, they must be of a different nationality than the parties, unless exceptional circumstances apply and no party objects within the Secretariat’s deadline.[4]
There have been notable cases in Switzerland of an arbitrator being challenged based on alleged bias or lack of independence. In the Sun Yang Case (Decision 4A_318/2020), for instance, the Swiss Federal Supreme Court annulled a Court of Arbitration for Sport (“CAS”) award against Chinese swimmer Sun Yang. The challenge was based on the discovery of tweets made by the presiding arbitrator in 2018 and 2019, which contained critical comments about Chinese practices and individuals. The Court found that these comments raised justifiable doubts about the arbitrator’s impartiality, leading to the annulment of the award. However, in another case, Crescent Petroleum v. National Iranian Oil Company (Decisions 4A_288/2023 and 4A_572/2023), the Swiss Federal Supreme Court rejected two applications for revision by the National Iranian Oil Company. The National Iranian Oil Company sought revision of an interim award after the ICC Court of Arbitration disqualified two arbitrators for alleged conflicts of interest and bias, including public comments made by one arbitrator. The Court held that for a revision to be granted, the grounds for challenge must have existed at the time the award was rendered (see Kluwer Arbitration Blog, “No Post-Award Duty of Independence and Impartiality: Proving Arbitrator Bias in Revision Proceedings Before the Swiss Federal Supreme Court”).
Consideration No. 3: Reputation and Track Record
When selecting an arbitrator, it is also important to evaluate their reputation and track record. This can be assessed through a combination of past awards, published writings, academic or professional contributions, and peer or institutional reviews. A consistent pattern of thoughtful reasoning, procedural fairness, and integrity in decision-making is a relevant indicator of how an arbitrator will approach your case.
Importantly, parties should look beyond familiar networks or frequently used arbitrators. While repeat appointments may signal confidence in an arbitrator’s abilities, they can also limit diversity and fresh perspective. Independent testimonials – from co-arbitrators, counsel, or institutions not affiliated with your practice – can provide valuable insight into the arbitrator’s temperament, diligence, and responsiveness.
Additionally, consider whether the arbitrator’s background aligns with the dispute at hand. Experience in relevant sectors, legal traditions, or with specific procedural frameworks (e.g., ICC, ICSID, UNCITRAL) may be advantageous. Similarly, past instances where the arbitrator has been challenged – and how those challenges were resolved – can shed light on their perceived impartiality and credibility.
Ultimately, a well-regarded arbitrator enhances not just the fairness of the outcome but the legitimacy of the process itself, which can be critical in high-stakes or politically sensitive disputes.
Consideration No. 4: Selecting an Arbitrator with a Manageable Caseload
Another important factor is an arbitrator’s availability. Well-known arbitrators often schedule cases months in advance, and an overburdened arbitrator may cause unnecessary delays, undermining one of arbitration’s key advantages – speedy dispute resolution.
Indeed, a famous legal maxim says “justice delayed is justice denied”. It is, therefore, no surprise that there have been attempts to challenge arbitral awards that arbitrators took too long to issue. In Harji Engg. Works v. BHEL, for instance, the Delhi High Court set aside an award issued more than three years after the final hearing, deeming the unexplained delay a breach of justice and public policy. Even minor delays can have serious consequences – as seen in Dubois v. Boots Frites, where the Paris Court of Appeal refused enforcement because the arbitrators had overshot the agreed time limit by mere days.
However, not all delays are fatal. In Union of India v. Niko Resources, the Court emphasized that delay alone is not a ground to set aside an award unless it results in patent illegality or procedural injustice. Courts in Germany, for instance, have also been more forgiving when delays are institutionally approved or where parties remain silent during the process, implying consent.
In Switzerland, the Swiss Federal Supreme Court has addressed issues related to delays in arbitral proceedings, particularly concerning the timely issuance of awards. In 4A_22/2023, Decision of 16 May 2023, the Swiss Supreme Court examined allegations of excessive delay in issuing a CAS award and the purported late extension of the deadline by the arbitral institution. The Court’s assessment focused on whether such delays compromised the fairness of the proceedings and the parties’ rights. The Court ruled that there was no violation of procedural celerity, deeming the length of proceedings reasonable considering the complexity of the case.
Therefore, before the appointment, all parties should carefully assess the arbitrator’s current caseload to ensure they have enough time to dedicate to the case. Some arbitral institutions, like the ICC, require arbitrators to disclose their availability upon appointment. Evaluating the urgency of the dispute and choosing an arbitrator whose schedule aligns with these needs can help avoid unnecessary delays and lead to a more efficient resolution.
Consideration No. 5: Linguistic and Cultural Considerations
Linguistic proficiency and cultural awareness may also play an important role in international arbitration. An arbitrator fluent in the arbitration’s working language ensures clarity in communication, avoids reliance on interpreters, and reduces the risk of misinterpretation in both oral and written proceedings. This is particularly important in complex or document-heavy cases where nuance matters.
Cultural sensitivity is also sometimes relevant. Differences in communication styles, attitudes toward authority, perceptions of fairness, and negotiation norms can all affect the dynamics of arbitration. An arbitrator who understands these nuances is better equipped to manage proceedings effectively, anticipate potential misunderstandings, and build trust among parties from diverse backgrounds. While language skills and cultural competence may not always be decisive, they are important for maintaining procedural fairness and efficiency, particularly in disputes involving parties from civil law and common law traditions or those with significantly different cultural contexts.
Consideration No. 6: Pick An Arbitrator Who Manages People Well and Understands Your Client’s Needs
Strong interpersonal and management skills are further helpful qualities in an international arbitrator. Today’s arbitrations often involve complex factual records, multiple parties, and culturally diverse participants. In such settings, an arbitrator – particularly a party-appointed one or the tribunal chair – would ideally be able to manage people effectively. This includes striking a careful balance between avoiding unnecessary delays and resisting the urge to impose overly rigid or authoritarian control.[5] As noted in legal commentary, the role requires the ability to “tread the very thin line between laxity and undue delay on the one hand and dictatorial, unreasonable demands on the other.”[6] Without such management expertise, the speed and cost-efficiency that parties expect from arbitration may be lost.
The arbitrator’s ability to communicate clearly and empathetically is equally important. Effective communication goes beyond persuasive writing or speaking; it requires active listening, the ability to understand the parties’ interests, and the flexibility to adapt communication styles to various cultural and legal contexts. In cross-border disputes, this “other-oriented” communication is essential for building trust and ensuring that the proceedings are inclusive and respectful.
An arbitrator should also be attuned to your client’s specific needs and concerns. Someone who listens carefully and genuinely considers the interests at stake is far more likely to reach a resolution that the parties view as fair and legitimate. Selecting an arbitrator with both people-management and communication skills – and who aligns with your client’s values – can go a long way in promoting a constructive and satisfactory outcome.
Conclusion
It is often stated that “an arbitration is only as good as the arbitrators”.[7] This statement is not far from the truth. Indeed, the expertise, experience and personality of arbitrators have a major impact on how well an international arbitration goes. Arbitrators have wide latitude in determining remedies and render legally binding rulings. Thus, an arbitrator’s abilities are essential to preserving the parties’ trust in the arbitration process as a whole and to obtaining the advantages that initially draw parties to arbitration: neutral venue, effectiveness, expertise, affordability and enforceability.
[1] The 2021 ICC Arbitration Rules, Article 11(2), requires arbitrators to disclose any circumstances that might give rise to doubts as to their impartiality or independence. The 2025 SIAC Arbitration Rules, Rule 20.2, mandates that arbitrators disclose any circumstances likely to give rise to justifiable doubts about their impartiality or independence. The 2020 LCIA Arbitration Rules, Article 5.4, requires a written declaration of impartiality and independence and a continuing duty to disclose throughout the arbitration.
[2] UNCITRAL Arbitration Rules, Article 6(7): “The appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.”
[3] 2020 LCIA Rules, Article 6.1: “Upon request of the Registrar, the parties shall each inform the Registrar and all other parties of their nationality. Where the parties are of different nationalities, a sole arbitrator or the presiding arbitrator shall not have the same nationality as any party unless the parties who are not of the same nationality as the arbitrator candidate all agree in writing otherwise.”
[4] 2021 ICC Arbitration Rules, Article 13(5): “Where the Court is to appoint the sole arbitrator or the president of the arbitral tribunal, such sole arbitrator or president of the arbitral tribunal shall be of a nationality other than those of the parties. However, in suitable circumstances and provided that none of the parties objects within the time limit fixed by the Secretariat, the sole arbitrator or the president of the arbitral tribunal may be chosen from a country of which any of the parties is a national.”
[5] C. T. Salomon, Selecting an International Arbitrator: Five Factors to Consider, 17 Mealey’s Int’l Arb. Rep. No. 10 (Oct. 2002).
[6] S. R. Bond, The International Arbitrator: From the Perspective of the ICC International Court of Arbitration, 12 J. Int’l Bus. 1, 10 (1991).
[7] Y. Derains & L. Lévy (eds.), Is Arbitration Only as Good as the Arbitrator? Status, Powers and Role of the Arbitrator, ICC Institute Dossier VIII (ICC Publ’n No. 692, 2011).