Becoming an International Arbitrator: Qualifications, Disclosures, Conduct, and Removal - Chapter I.9 - Practitioner's Handbook On International Arbitration And Mediation - 3rd Edition

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Chapter I.9
Becoming an International Arbitrator:
Qualifications, Disclosures, Conduct,
and Removal
Richard M. Mosk
Tom Ginsburg

This chapter discusses the qualifications involved in becoming an international
arbitrator, the appointment process, disclosure requirements, arbitrator ethics
with the parties and each other, challenges to arbitrators, resignation and
replacement of arbitrators, and financial and liability issues.

§ 9.01 In General

[1] The Growth in the Market for Arbitrators

Not so long ago there were few individuals who specialized in
arbitration--either domestic or international. Just a few multinational
law firms engaged in the practice of international arbitration. Only a
small number of well-known and well-connected individuals were called
upon to act as arbitrators in significant international arbitrations.1
Concomitantly, there were few international arbitral institutions. The
most prominent, the International Court of Arbitration of the International
Chamber of Commerce ("ICC"), had 100 requests for arbitration
filed in 1968, as compared with 793 in 2010.2

Increased international trade, reduced political and trade barriers, the
growth of multinational law firms, and the expansion of alternative dispute
resolution have all contributed to the growth of international arbitration.
Businesses recognized that resolving disputes through international
arbitration was preferable to being a party in a foreign court; lawyers
became more sophisticated in drafting dispute resolution clauses; more
nations acceded to the New York Convention on the Enforcement of
Foreign Arbitral Awards of 1958 ("New York Convention")3 making
enforcement easier; and the establishment of the Iran-United States Claims
Tribunal in 1981 exposed many American lawyers, who previously had no
experience, to the field of international arbitration. As the popularity of
international arbitration grew, many countries modernized their national
laws on arbitration, and new international arbitral institutions have
developed. Governments increasingly are requiring international arbitration
in investment and trade treaties.4 More and more businesses are providing
for arbitration in private agreements.

Chapter I.9
Becoming an International Arbitrator:
Qualifications, Disclosures, Conduct,
and Removal
Richard M. Mosk
Tom Ginsburg

SYNOPSIS

§ 9.01 In General
[1] The Growth in the Market for Arbitrators
[2] Considerations in Selecting an Arbitrator
[3] Enhancing the Prospects of Becoming an Arbitrator

§ 9.02 Appointment Practices
[1] Methods of Appointment
[2] Party Appointment
[3] Appointment of Arbitrators absent Party Agreement
[a] Ad-hoc Arbitration
[b] Institutional Arbitration
[c] Judicial Appointment

§ 9.03 Qualifications of Arbitrators
[1] Nationality
[2] Language
[3] Occupation
[4] Availability and Competence
[5] Experience
[6] Restrictions
[7] Independence and Impartiality

§ 9.04 Independence and Impartiality
[1] Applicability
[2] Impartiality and Independence Distinguished
[3] Standards of Impartiality and Independence
[a] General
[b] Appearance of Impartiality
[c] Suspect Factors
[d] Non-disqualifying Factors
[e] Institutional Practice

§ 9.05 Role of the Party-Appointed Arbitrator
[1] Distinction between International and Domestic
Arbitrations
[2] Proper Role of the Party-Appointed Arbitrator

§ 9.06 Disclosure Requirements
[1] Introduction
[2] Ethical Codes and Arbitral Rules
[3] Legal Requirements

§ 9.07 Objections and Challenges
[1] What Generally Happens When an Arbitrator Is
Challenged
[2] Procedure under Arbitral Rules
[3] Challenges under National Law
[a] Pre-Award Challenges
[b] Relationship between Institutional Rules and
National Laws
[c] Challenges to Enforcement of the Award

§ 9.08 Resignation, Removal and Replacement of Arbitrators
[1] Resignation
[a] Reasons
[b] Compensation
[c] Rehearing
[d] Reputation
[2] Removal
[3] Replacement

§ 9.09 Communications with Parties
[1] Introduction
[2] Pre-appointment Communications
[a] Scope of Communication
[b] Arbitral Rules
[c] Solicitation
[3] Communications regarding Selection of Third Arbitrator
[4] Ex Parte Communications during Proceedings and
Confidentiality of Deliberations
[5] Post-Award Communications
[6] Post-Award Representation

§ 9.10 Relations with Other Arbitrators
[1] General
[2] Communications among Arbitrators
[3] Truncated Tribunal
[4] Separate Opinions

§ 9.11 Arbitrator Liability
[1] Arbitral Immunity
[2] Unauthorized Practice of Law

§ 9.12 Compensation and Financial Issues
[1] Fee Arrangements
[2] Expenses
[3] Taxes

§ 9.13 Conclusion

Richard M. Mosk is an Associate Justice on the California Court of
Appeal. He was judge on the Iran-United States Claims Tribunal. Justice
Mosk has taught courses at the U.S.C. Law Center; T.C. Beirne School
of Law at Queensland University, Australia; Hague Academy of
International Law (the Netherlands); Duke-Geneva University program
(Geneva, Switzerland); and has lectured at various law schools and
colleges throughout the United States and Europe. He has served as an
arbitrator in a number of arbitrations, including ICC arbitrations. He has
written numerous articles, including on international arbitration.

Tom Ginsburg is the Leo Spitz Professor of International Law at the
University of Chicago Law School. Prior to joining the faculty, he taught
law at the University of Illinois, served as a Legal Advisor for the Iran-
U.S. Claims Tribunal at The Hague, Netherlands, and was on the law
faculty of Kyushu University in Fukuoka, Japan. Professor Ginsburg has
served as a Consultant to several international development organizations
on legal and economic reform.