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The Arbitrators
Andreas F. Lowenfeld
5. THE PARTY-APPOINTED ARBITRATOR IN
INTERNATIONAL CONTROVERSIES: SOME
REFLECTIONS
I want to try here to say something about an important aspect of
arbitration rarely talked about except abstractly — the role of the
party-appointed arbitrator. It is a delicate subject, in several respects.
My hope is to go beyond pious platitudes without violating the
confidential nature of arbitration. Though my primary profession for
more than a quarter century has been that of an academic, I believe I
have had enough opportunities to serve as an international arbitrator
— about two-thirds of the time party-appointed — to make my
experiences worth sharing. Thus, this essay is deliberately personal
and anecdotal, though nonetheless serious.
I. Selecting One’s Arbitrator
Some years ago, my then dean called me up to inform me that he
had been contacted by the senior partner of a prominent law firm,
who was looking for an arbitrator for a major international
arbitration. Apparently I had been suggested as a possible arbitrator,
and the lawyer was checking with his friend the dean. “I told him,”
the dean said, “that you were very smart, very hard-working, very
experienced, well known abroad, and with a good sense of procedure
and a good feel for the elements of a commercial transaction. ‘If you
have a good case, you couldn’t do better than appointing Professor
Lowenfeld.’” I never heard from the firm. The last sentence, while
flattering to me, was the kiss of death. The dean did not say,
“Whether your case is good or bad, Professor Lowenfeld will be in
there, fighting for your side.”
The story highlights a critical question about the selection of partyappointed
arbitrators, and about their role once they are selected. Was
the dean’s friend right to reject someone he could not count on to
support him, come what may? I don’t think so, on two quite separate
levels. On one level, easy to state in the abstract, an arbitrator is a
judge, not a member of a party’s team. While he or she is expected to
be receptive to the position of the party that appointed him or her, an
arbitrator is not supposed to approach a controversy with mind made
up. I can state that while I have had suspicions now and then that a
party-appointed arbitrator approached the case with a sense of
mission, I have only once had the experience, in a case in which I was
chairman, where when my fellow-arbitrators said “we,” it was not clear
whether they meant “we, the tribunal” or “my client and I.”
Part I. Introduction
1. A Primer on International Arbitration
Part II. The Meeting of Different Legal Traditions
2. The Two-Way Mirror: International Arbitration as Comparative Procedure
3. International Arbitration as Omelette: What Goes into the Mix
4. Arbitration across National Frontiers: Views of a Founding Father
Part III. The Arbitrators
5. The Party-Appointed Arbitrator in International Controversies: Some Reflections
6. The Party-Appointed Arbitrator: Further Reflections
7. An Arbitrator's Declaration of Independence
8. The Immunity of Arbitrators: Review of a Global Symposium
Part IV. Arbitration of Public Issues
9. The Mitsubishi Case
10. International Arbitration: Scapegoat or Solution?
Part V. Lex Mercatoria
11. Lex Mercatoria: An Arbitrator's View
12. Singapore and the Local Bar: Aberration or Ill Omen?
Part VI. Courts and Arbitration
13. Can Arbitration Coexist with Judicial Review? The LaPine v. Kyocera Case
14. Arbitration and Issue Preclusion: A View from America
Part VII. International Law
15. International Arbitration and International Law
About the Author:
Andreas F. Lowenfeld is Herbert and Rose Rubin Professor of International Law at New York University School of Law. He serves frequently as arbitrator in international cases, and has written widely on various aspects of international trade, investment, finance, and dispute settlement. Professor Lowenfeld is an elected member of the Institut de Droit International and of the International Academy of Comparative Law, and has twice been a Lecturer at The Hague Academy of International Law. Professor Lowenfeld served as Associate Reporter for the American Law Institute's Restatement (Third) of the Foreign Relations Law of the United States, with principal responsibility for the sections on jurisdiction, judgments, and dispute settlement, and is presently Co-Reporter of the ALI's International Jurisdiction and Judgments Project.
