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Party-appointed Arbitrators Selecting the Chair - What are your thoughts?

When two party-appointed Canon IX (neutral) arbitrators are given the opportunity to select the Chair, to what extent should those arbitrators seek guidance from their respective appointing parties as to the applicable criteria for selecting the Chair before they must act impartially and serve as true neutrals? Should the diversity of the Chair (race, gender, background, experience, etc.) relative to the party-appointed arbitrators be considered a criterion and, if so, to what extent?

Please provide your thoughts/comments below.

Comments (4)

If both sides agree to have ex parte communications with their respective party-appointed arbitrators about chair selection, they should set the parameters. Under the IBA Guidelines on Party Representation in International Arbitration, for example, the communication should be limited to the names of possible candidates for a chair.

As for diversity, many arbitrators and arbitration practitioners have taken the Equal Representation in Arbitration Pledge (http://www.arbitrationpledge.com/take-the-pledge), for example. Those who have pledged to, for example, appoint a fair representation of female arbitrators should be expected to honor their pledge

In my experience, the parties who appointed the wings do expect that they ( counsel for the parties) will be consulted about the neutral appointment and expect that they will have a veto role. It is an "advise and consent" situation.

All factors should be considered in the neutral appointment and there should be no biases that exclude a qualified neutral arbitrator. Affirmative efforts to ensure diversity should certainly be part of the equation. Subject matter knowledge and experience will also usually be an overriding factor.

A neutral arbitrator in my opinion doesn't need to confer with the appointing party about anything. He or she does need to study any criteria in the arbitration agreement or passed on to both arbitrators from the parties jointly. Diversity is always a factor to consider.

Philip Allen Lacovara:

Counsel for appointing parties normally expect the party-appointed arbitrators (even though neutral) to confer with them on the criteria for a chairperson and to be able to comment on candidates and to suggest candidates. But this should be explicitly agreed as a mutually acceptable procedure. Experience and expertise tend to be more influential factors than diversity, although some parties actively encourage diversity in specific cases.

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