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Think Quality Not Quantity: Repeat
Appointments and Arbitrator Challenges
Will Sheng WILSON KOH
Repeat appointments of an arbitrator by the same counsel or party are not uncommon in
arbitration, with some even claiming that an 'inner mafia' decide the majority of cases.
Whether this poses a problem for arbitrator independence or impartiality has been described as
'highly controversial'. The 2014 IBA Guidelines on Conflicts of Interest expressly identifies
repeat appointments as an Orange List circumstance providing possible groundsfor challenge, but
this has been described by commentators such as Gary Born as 'poorly-considered' and 'relatively
extreme'.
This article suggests that reports of systemic favouritism have been exaggerated and
numerical limits on repeat appointments should be rejected. I begin by outlining in section 2
the two contrasting approaches that authoritiesfaced with such challenges have adopted: a
quantitative approach and a qualitative approach. Section 3 examines the legal standards that
parties typically subscribe to and argues that they cannot and should not be interpreted to
favour the quantitative approach. Section 4 scrutinizes the main reasoning processes that
allegedly link repeat appointments to an appearance of bias and suggests that they rely on
untenablegeneralizations. Finally, section 5 assesses the quantitative approachfrom its impact
on party autonomy. I suggest that respecting party autonomy means that the quantitative
approach must not be adopted except where parties have explicitly agreed so.
1 INTRODUCTION
Can an arbitrator truly be independent and impartial when she was appointed by
one of the very parties she is judging? In line with the conventional wisdom that
'you don't bite the hand that feeds you', some critics have argued that 'arbitrators
favour their appointing party in a self-interest effort to increase the likelihood of
future appointments'.' This is said to lead to a malignant mix of repeat appoint-
Practice trainee in the International Arbitration and Dispute Resolution practice of Drew & Napier
LLC (Singapore). He is a graduate of the National University of Singapore, Faculty of Law. The views
expressed in this article are those of the author's alone. E-mail: wilson.koh@drewnapier.com.
Catherine Rogers, The Politics of InternationalInvestment Arbitration, 12 Santa Clara J. Int'l L. 223, 226
(2014).
Wilson Koh, Will Sheng. 'Think Quality Not Quantity: Repeat Appointments and Arbitrator Challenges'.
Journal of InternationalArbitration 34, no. 4 (2017): 711-740.
0 2017 Kluwer Law International BV, The Netherlands
712 JOURNAL OF INTERNATIONAL ARBITRATION
ments by the same party or counsel (hereafter 'repeat appointments'), 'systemic

favouritism', 2 and eventually the emergence of an 'inner mafia'.3
These indictments should be taken seriously and be refuted where possible. Left
unaddressed, they cast a pall over the legitimacy of international arbitration and allow
baseless suspicions to fester. 72% of practitioners who responded to a 2015 survey by
Queen Mary, University of London, indicated that 'repeat nominations of the same
arbitrator in multiple arbitrations by parties' should be more 'specifically regulated'.4
In a swing of the pendulum from party autonomy to regulation, one solution
advocated by some is a numerical limit on repeat appointments.
This article argues that reports of systemic favouritism have been exaggerated and
numerical limits on repeat appointments should be rejected. I will focus on the rising
practice of challenging arbitrators on the grounds of repeat appointments and argue
that repeat appointments should not and do not ipso facto constitute sufficient grounds
for disqualification. The spotlight is on the arbitrator challenge mechanism because it is
the international arbitral process's primary means ofself-regulation and thus ofprimary
importance to the 'normative and sociological legitimacy' of international arbitration.
Although this issue of whether repeat appointments provide good grounds for
disqualification has been described as 'highly controversial',6 I argue that the better
analysis is that they do not provide such grounds. Whether a legal, analytical, or
policy perspective is adopted, the notion that repeat appointments call for dis-
qualification should be discredited.
2 Jan Paulsson, Ethics, Elitism, Eligibility, 14 J. Int'l Arb. 14 (1997) ('In the case of an arbitrator who
considers that his only chance [at reappointment] lies with the party which has already named him
once, this might result in more or less dissimulated, but nevertheless systemic, favouritism.').
Pia Eberhardt & Cecilia Olivet, Corporate Europe Observatory and the Transnational Institute, Profiting
from Injustice (2012), http://corporateeurope.org/international-trade/2012/11/profiting-injustice
(accessed 6 Apr. 2016); Daphna Kapeliuk, The Repeat Appointment Factor: Exploring Decision Patterns of
Elite Investment Arbitrators, 96 Cornell L. Rev. 47, 77 (2010); Philippe Leboulanger, Bibliographie- Dealing
in Virtue, International Commercial Arbitration and the Construction of a Transnational Legal Order, Revue
de l'arbitrage 319, 1997(2) (1997); Yves Dezalay & Bryant Garth, Dealing in Virtue - International
Commercial Arbitration and the Construction of a Transnational Legal Order 18-20 (University of Chicago
Press 1996).
Queen Mary, University of London and White & Case LLP, 2015 International Arbitration Survey:
Improvements and Innovations in International Arbitration, http://www.arbitration.qmul.ac.uk/docs/
164761.pdf (accessed 6 Apr. 2016).
Chiara Giorgetti, Challenges and Recusals ofJudges and Arbitrators in International Courts and Tribunals 1
(Chiara Giorgetti ed., Brill Nijhoff 2015) ('[O]f paramount importance to the normative and socio-
logical legitimacy of international courts and tribunals.'); Steven Chong, Speech By The Attorney-
General Steven Chong S.C. (Singapore Institute of Arbitrators Annual Dinner, Singapore, 6 Nov.
2013) http://www.siarb.org.sg/pdf/201312newsltr.PDF (accessed 6 Apr. 2016) ('the legitimacy of
arbitration hinges upon how questions of impartiality and independence will be answered by the
arbitration community'.).
6 Caratube Int'l Oil Co. LLP & Devincci Salah Hourani v. Republic of Kazakhstan, ICSID Case No. ARB/
13/13, Decision on the Proposal for Disqualification of Mr Bruno Boesch (20 Mar. 2014), para. 108
('That determination is not made with a view to decide whether "repeat appointments" would in
general be good causes for the disqualification of an arbitrator, an issue that is highly controversial.').
REPEAT APPOINTMENTS AND ARBITRATOR CHALLENGES 713
Section 2 will identify the two contrasting lines of authorities regarding

challenges brought on the ground of repeat appointments: the 'quantitative
approach' and the 'qualitative approach'. Section 3 will investigate whether the
quantitative approach is supported by the major legal standards governing arbitrator
disqualification. I will examine the International Bar Association (IBA) Guidelines
on Conflicts of Interests in International Arbitration, the standards employing the
concept of 'justifiable doubts', and the standard under the Convention on the
Settlement of Investment Disputes Between States and Nationals of Other States
(hereinafter 'ICSID Convention'), and show that none provide a sound legal basis
to the quantitative approach to repeat appointments.
Section 4 will scrutinize the reasoning processes that ostensibly link repeat
appointments to an appearance of bias. I argue that the inference of an appearance
of bias from the mere fact of repeat appointments is a non-sequitur, and the typical
arguments based on the corrupting desire for reappointments and excessive famil-
iarity between arbitrator and appointing party both rely on untenable general-
izations. Section 5 will assess the quantitative approach from a policy perspective,
namely, its impact on party autonomy. I suggest that the quantitative approach
cannot be adopted unless parties explicitly agree so, and that it ultimately interferes
with the very idea of arbitration as we know it. Finally, section 6 will conclude.
2 A SPLIT IN AUTHORITIES
The notion of challenging an arbitrator on the basis of repeat appointments is not

new. However, since most arbitral institutions do not publish reasoned decisions
on challenges to arbitrators, the literature on the early developments of this
argument is relatively sparse. Nevertheless, challenges that reached national courts
show that such arguments have been used for decades. For instance, in as early as
1986 the Paris High Court in Setec Bdtiment v. Soci&t Industrielle disqualified an
arbitrator who was appointed twice by the same party for a related matter." Such
decisions by national courts remained largely in the background, until the IBA
Guidelines on Conflicts of Interest were published in 2004 and cemented repeat
See e.g. ICC Arbitration Rules (1 Jan. 2012), Art. 11(4); AAA Rules (1 Oct. 2013), r. 18(c); CIETAC
Arbitration Rules (1 Jan. 2015), Art. 32(6); Swiss Rules of International Arbitration (1 June 2012), Art.
11(3); SIAC Rules (1 Apr. 2013), Art. 13; HKIAC Challenge Rules (25 Mar. 2008), Art. 8; JCAA
Commercial Arbitration Rules (10 Dec. 2015), Art. 31(5); Gary Born, International Commercial
Arbitration 1921 (2d ed., Kluwer Law International 2014), ('Most institutional rules contain no
requirement for a reasoned decision on challenges to arbitrators.').
S.A. Setec Bdtiment v. Societe Industrielle et Commerciale des Charbonnages, T.G.I. Paris (High Court of
Paris), 13Jan. 1986, Rev. Arb. 63 (1987), cited in Fouchard Gaillard Goldman on InternationalCommercial
Arbitration 567-568 (Emmanuel Gaillard andJohn Savage eds, Kluwer Law International 1999); see also
Ben Nasser v. BNP, Cour d'appel Paris [Paris Court of Appeal], 14 Oct. 1993, 121 J.D.I. 446 (1994).
appointments as a ground for challenge in the international arbitration commu-

nity's consciousness. 9
The IBA Guidelines, which ambitiously set out to be 'the most comprehen-
sive work to date defining the framework by which the impartiality of arbitration
in the international arena can be most effectively assured',1o firmly reflected that
repeat appointments raise a concern in the context of independence and
impartiality. In the years following their publication, repeat appointments
became a garden-variety ground for proposing disqualification.
Against this backdrop, the authorities hearing these challenges have not
responded with one voice. Whereas some have found numbers to be an objective
indication of partiality or dependence, others have adopted a multifactorial
approach that downplays any significance to the number of repeat appointments.
2.1 QUANTITATIVE APPROACH
Numbers play a central role under the quantitative approach because they are seen
as an objective and fact-based criteria that will reduce ambiguity. 12 In its strong
form, a bright-line rule is enforced whereby an arbitrator will be disqualified if she
receives more than a specified number of appointments from the same party or law
firm over a specified duration. In its softer form, no specific numerical limit on
repeat appointments is identified, but the number of repeat appointments is still
given much weight and can in and of itself give rise to an inference of bias
sufficient for disqualification.
The quantitative approach has led to disqualification of arbitrators in numer-
ous instances and across various jurisdictions. 13 A straightforward and illustrative
9 International Bar Association, IBA Guidelines on Conflicts ofInterest in InternationalArbitration (22 May
2004) (hereinafter '2004 IBA Guidelines').
10 International Bar Association Arbitration Committee, Arbitration Projects (International Bar
Association), Tw.ibanet.org/LPD/DisputeResolutionSection/Arbitration/Projects.aspx (accessed
6 Apr. 2016).
OPIC Karimum Corp. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/14, Decision on
the Proposal to Disqualify Professor Philippe Sands, Arbitrator (5 May 2011), para. 48 ('That the issue
of multiple appointments raises a concern in the context of independence and impartiality was
reflected in the IBA Guidelines on Conflicts of Interest').
12 Catherine Rogers & Idil Tumer, Arbitrator Challenges: Too Many or Not Enough?, in Contemporary Issues
in InternationalArbitration and Mediation: The Fordham Papers 2014 131 (Arthur W. Rovine ed., Brill
Nijhoff 2015).
13 E.g. Neaman v. Kaiser Foundation Hospital, 11 Cal. Rptr. 2d 879 (California Court of Appeal) (2d Dist.
1992) (Award annulled because arbitrator had five repeat appointments that were not disclosed); A (The
Bank) v. M (Arbitrator), H (Arbitrator), B.C., Tribunal de premibre instance Bruxelles [Brussels Tribunal
of First Instance], R.G. 99/11732/A, 14 Dec. 2006; Societe Somoclest v. Societe D. V. Construction, Cass.
Civ. (1), French Court of Cassation, Case No. 09-68997, 20 Oct. 2010, 29(1) ASA Bull. 195 (2011)
(51 appointments by the same group of companies); Kalinka-Stockmann v. ZAO AKB Mosstroy econom
bank Federal Arbitrazh Court of Moscow Region, 13 Oct. 2008, No. KG-A40/9254-08 ('[T]he
case is Frernarc v. ITM Enters, where the French Court of Cassation found that a
tribunal was not properly constituted because one of the party-appointed arbitra-
tors had been appointed by the same party in three other cases and had failed to
disclose so. 14 In another illustrative decision, the Board of the Arbitration Institute
of the Stockholm Chamber of Commerce removed an arbitrator because he had
been appointed eight times in five years by the same law firm.1 5
In 2014, the IBA Arbitration Committee had a chance to depart from the
quantitative approach on repeat appointments previously set out in the 2004 IBA
Guidelines. They instead affirmed it. The 2004 IBA Guidelines, which were meant
to be 'a beginning, rather than an end'1 6 of the process of providing guidance on
standards governing challenges and disclosure, had set out explicit quantitative
guidelines regarding repeat appointments by parties and counsel. Section 3.1.3
provided that two or more appointments of the same arbitrator by the same party
would constitute an Orange List circumstance that provides possible grounds for
disqualification. 1 7 Similarly, section 3.3.7 provided that more than three appoint-
ments by the same law firm within three years would constitute an Orange List
circumstance." These sections attempted to convert qualitative standards into
-
more precise and measurable quantitative situations. 19
Effectively nothing in these sections was changed in the 2014 version of the
IBA Guidelines. 20 Apart from minor corrections to the language and grammar, as
well as shifting section 3.3.7 of the 2004 IBA Guidelines to section 3.3.8 in the
2014 IBA Guidelines, the only change of note was the addition of 'sports' to the
examples of exceptions to section 3.1.3 in footnote 5 of the 2014 IBA
Guidelines. 21 The quantitative approach was decisively retained.
persistent nature of selecting H as an arbitrator on the part of ZAO Kalinka-Stockmann serves as a

legitimate basis to doubt the impartiality of such person as it demonstrates reasonable expectations by the
party in the dispute that such arbitrator will support its legal position in the case.').
14 SA Fremarc v. Societe ITM Enterprises, Cass. Civ. (2), French Court of Cassation, 6 Dec. 2001, Rev.
Arb. 1231 (2003).
15 Decision by the SCC Board in SCC Case No. 14/2004, as cited in Patrik Schdldstrdm, The Arbitrators,
in InternationalArbitrationin Sweden: A Practitioner'sGuide 119 (Ulf Franke and Annette Magnusson eds,
Kluwer Law International 2013).
16 2004 IBA Guidelines, supra n. 9, at 5.
17 Ibid., at 21 ('The arbitrator has within the past three years been appointed as arbitrator on two or more
occasions by one of the parties or an affiliate of one of the parties.').
is Ibid., at 23 ('The arbitrator has within the past three years received more than three appointments by
the same counsel or the same law firm.').
19 Rogers & Tumer, supra n. 12, at 131.
20 International Bar Association, IBA Guidelines on Conflicts of Interest in InternationalArbitration (23 Oct.
2014) (hereinafter '2014 IBA Guidelines').
21 2004 IBA Guidelines, supra n. 9, at 25 ('It may be the practice in certain specific kinds
of arbitration,
such as maritime or commodities arbitration, to draw arbitrators from a small, specialized pool.'); cf.
2014 IBA Guidelines, supra n. 20, at 22 ('It may be the practice in certain types of arbitration, such as
maritime, sports or commodities arbitration, to draw arbitrators from a smaller or specialised pool of
individuals.').
This is significant because sections 3.1.3 and 3.3.8 of the 2014 IBA
Guidelines 2 2 have been endorsed by numerous tribunals,2 3 arbitral institutions,2 4
and national courts.25 In one ringing endorsement by a tribunal, the IBA
Guidelines were lauded as 'widely recognized in international arbitration as the
- ,26 - -
preeminent set of guidelines for assessing arbitrator conflicts'
.
The 2015 decision on the proposal to disqualify Professor Brigitte Stern in
Highbury v. Venezuela represents the high water mark of the quantitative
approach.2 7 Professor Stern was challenged by the claimants on several grounds,
including the argument that she had received six appointments by Venezuela and
at least eight direct appointments by the law firm. 28 The tribunal held that
compliance with the minimum required by the IBA Guidelines is a 'necessary
but not sufficient' condition for the challenged arbitrator to avoid disqualification.-
29 This strongly suggests that failure to meet the quantitative standards of sections
3.1.3 and 3.3.8 would be met with disqualification. On the facts, they found that
Professor Stern had received only one appointment by Venezuela and two
appointments by the law firm in the last three years. 30 This complied with the
standards set out in sections 3.1.3 and 3.3.8 of the 2014 IBA Guidelines and
Professor Stern was not disqualified.
This approach is consistent with recent recommendations by some commen-
tators that 'the issue of repeat arbitrator appointments . . might best be handled by
deeming presumptively disqualifying any appointment beyond the threshold for
22 2004 IBA Guidelines, ss 3.1.3 and 3.3.7.

23 E.g. Universal Compression InternationalHoldings, S.L.U. v. Bolivarian Republic of Venezuela, ICSID
Case
No. ARB/10/9, Decision on the Proposal to Disqualify Prof Brigitte Stern and Prof Guido Santiago
Tawil, Arbitrators (20 May 2011), para. 74; Highbury Int'lAVV, Compahia Minera de Bajo CaroniAVV
& Ramstein Trading Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/14/10, Decision on
the Challenge of Professor Brigitte Stem (9 June 2015), para. 79 (noting that the IBA Guidelines enjoy
a high level of acceptance in international arbitration); see also Born, supra n. 7, at 1893.
24 E.g. SCC Case No. 14/2004, supra n. 15.
25 E.g. Cofely Ltd. v. Anthony Bingham, English High Court, [2016] EWHC 240 (Comm), para. 109;
Case No. 16 Nc 2/07w, Handelsgericht Wien [Commercial Court of Vienna], 24 July 2007,
unpublished, as cited in IBA Conflicts of Interests Subcommittee, The IBA Guidelines on Conflicts of
Interest in InternationalArbitration: The First Five Years 2004-2009, 4 Disp. Resol. Int'l 7 (2010).
26 U7niversal Compression, supra n. 23.
27 Highbury Int'l, supra n. 23.
28 Ibid., para. 24.
29 Ibid., para. 95 (noting that compliance with the minimum standards required by the IBA Guidelines
is
necessary but not sufficient for the correct application of the ICSID standard); see also Clovis Trevino,
Investment Arbitration Reporter, Brigitte Stern's Co-Arbitrators Weigh In With Their Verdict On A Bid To
Remove Her From Venezuela Case (15 June 2015), www.iareporter.com/articles/brigitte-stems-co-
arbitrators-weigh-in-with-their-verdict-on-a-bid-to-remove-her-from-venezuela-case/ (accessed 6
Apr. 2016).
3o Highbury Int'l, supra n. 23, para. 94.
31 Ibid., para. 99.
disclosure under the IBA Guidelines'. 32 Whether out of fear of challenges or actual
agreement with such a reading of the guidelines, some arbitrators have expressed
their support of such an approach. For instance, Judge Charles Brower has publicly
stated that 'I do not accept appointments . . by the same party or on the
recommendation of the same counsel within the preceding three years.' 3 3
2.2 QUALITATIVE APPROACH
In contrast to the quantitative approach, a separate line of authorities have treated

repeat appointments as just one of many factors that go into the assessment of
impartiality and independence. The decision on the proposal to disqualify
Professor Stern in Tidewater v. Venezuela is representative of this approach.
Professor Stern had received four appointments from Venezuela in the previous
six years and three appointments by Venezuela's counsel. In dismissing the chal-
lenge, the tribunal noted that '[w]hether multiple appointments to arbitral tribunals
may impugn the independence or impartiality of an arbitrator is a matter of
substance, not of mere mathematical calculation'. 35 There is no prohibition against
repeat appointments and the decision whether to disqualify a repeat arbitrator is
assessed holistically, rather than reduced to a bean-counting exercise. Accordingly,
the significance of repeat appointments is diminished and challenges based on
repeat appointments typically fail.36
Under this approach, the fact of repeat appointments is neutral because the
arbitrator exercises 'the same independent arbitral function' in each case.: As
Professor Stern noted, she is convinced by the intrinsic value of the arguments
and not the number of times she hears them.3" Furthermore, it is noted that repeat
appointments could be a result of an arbitrator's independence and impartiality
32 Luke Sobota, Repeat Arbitrator Appointments in InternationalInvestment Disputes, in Challenges and Recusals
ofJudges and Arbitrators in International Courts and Tribunals 319 (Chiara Giorgetti ed., Brill Nijhoff
2015).
33 Charles Brower et al., Tall and Small Tales ofa Challenged Arbitrator, in Challenges and Recusals ofjudges
and Arbitrators in International Courts and Tribunals 336 (Chiara Giorgetti ed., Brill Nijhoff 2015).
3 Tidewater Inc. and others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/5, Decision on
Claimants' Proposal to Disqualify Professor Brigitte Stern, Arbitrator (23 Dec. 2010), para. 60.
3 Ibid., para. 59.
36 See e.g. OPIC Karimum, supra n. 11; Korsnas Aktiebolag v. Fortum Varme, Supreme Court of Sweden,
Case No. T 156-09, 9 June 2010 (challenge dismissed even though the arbitrator had been appointed
four times by the same firm over the past three years); Case No. A 7145-04, Stockholm District
Court, 21 June 2004 (challenge dismissed even though the arbitrator had been appointed ten times by
the same law firm over ten years, with five of the arbitrations still ongoing); S.A. Fretal v. S.A. ITM
Entreprises, Cour d'appel Paris [Paris Court of Appeal], 28 Oct. 1999, Rev. Arb. 299 (2000) (challenge
dismissed even though the arbitrator had been appointed by the same party three times).
37 Tidewater, supra n. 34, para. 60.
3 Ibid., para. 26.
rather than an indication of justifiable doubts about it. As some commentators

point out, the ideal arbitrator in the eyes of an appointing party is not just one who
is likely to decide in that party's favour, but also one of such independence and
impartiality as to be impervious to challenge. 40 Accordingly, repeat appointments
are not in and of themselves proof of partiality, 4 1 and a challenging party must raise
'other factors' that cumulatively impugn the arbitrator's independence and
impartiality."2
Instead of the mechanical application of a numerical limit on repeat
appointments, a nuanced and multifactorial approach is adopted. The deciding
authority will take into account various factors, including the significance of the
revenues from that party or law firm in terms of its proportion of the arbi-
trator's total income 43 and the customs and peculiarities of the particular field
of the dispute. 44
3 QUANTITATIVE APPROACH LACKS A LEGAL FOUNDATION
The starting point in addressing which of the two approaches is better is to

examine what the applicable legal standards are and whether the quantitative
approach draws support from any of the legal standards. This is not always
straightforward because there can be a patchwork of overlapping legal stan-
dards, including the institutional rules that parties agreed to, mandatory
39 Ibid., para. 61.

4o Sobota, supra n. 32, at 294 ('[Parties] rationally may aim to select arbitrators who not only possess
requisite skills and experience, but also credibility and integrity'); see also William Park, Arbitrator
Integrity, in The Backlash Against Investment Arbitration 200-201 (Michael Waibel et al. eds, Kluwer Law
International 2010).
41 ParticipacionesInversiones PortuariasSARL P. Gabonese Republic, ICSID Case No. ARB/08/17, Decision
on Proposal for Disqualification of an Arbitrator (12 Nov. 2009); see also LCIA Reference No. 81160,
LCIA Court Decision on Challenge to Arbitrator (28 Aug. 2009), in Arbitration International Special
Edition on Arbitrator Challenges 451 (William Park ed., Kluwer Law International 2011).
4 E.g. ibid., para. 64; OPIC Karimum, supra n. 11, para. 55; LCIA Reference No. 81160, supra n. 41, at
452; Korsnas Aktiebolag, supra n. 36; Hitachi Ltd. v. SMS Schloemann Siemag Aktiengesellschaft, Federal
Supreme Court of Switzerland, 30 June 1994, 15(1) ASA Bull. 99 (1997).
44 LCIA Reference No. 81160, supra n. 41, at 452 ('The fair-minded and informed observer would
acknowledge the characteristics of the London insurance and reinsurance markets and of the specialised
legal profession serving these markets. He would also acknowledge that an insurance specialist might
depend upon a limited number of law firms'); Jung Science Information Technology Co. Ltd. v. ZTE
Corp., High Court of Hong Kong, 22 July 2008, [2008] H.K.C.F.I. 606, para. 55 ('And in evaluating
whether such an association had the capacity to influence, the objective onlooker could be expected to
be aware of the legal traditions and culture of the English jurisdiction'); 2014 IBA Guidelines, supra
n. 20, at 22, n. 5; Flaherty v. National Greyhound Racing Club Ltd., English Court of Appeal, [2005]
EWCA Civ 1117, para. 27 ('An allegation of apparent bias must be decided on the facts and
circumstances of the individual case, including the nature of the issue to be decided.').
provisions in the law of the arbitral seat, 4 5 and any supplementary rules that
parties agreed to.46
Fortunately, most of these standards can be read harmoniously with each other
because they have the common core of the arbitrator's duty to be independent and
impartial. Without denying that care should be taken to examine the precise legal
matrix that applies in each situation, I will examine the dominant legal standards
since a detailed analysis of all possible combinations is beyond the scope of this
article. It will be shown that none of them provide a sound legal foundation to the
quantitative approach.
3.1 IBA GUIDELINES ON CONFLICTS OF INTEREST
As earlier mentioned, the IBA Guidelines enjoy a respected status within the
international arbitration community and parties often agree that the tribunal and
parties will be guided by them. However, confusions over the legal status of the
IBA Guidelines and the significance of finding an Orange List circumstance are
common, leading to the misconception that the quantitative approach is required
by sections 3.1.3 and 3.3.8 of the 2014 IBA Guidelines.
3.1[a] IBA Guidelines Are Not Legally Binding
The first misconception, that the IBA Guidelines are binding legal standards, arises
primarily for two reasons. The first is that parties often expressly agree that the IBA
Guidelines will apply to the arbitration. Some interpret this as the party's exercise
of their autonomy to agree on additional rules that will bind the tribunal. Second,
parts of the IBA Guidelines are couched in seemingly mandatory language. For
instance, the Non-Waivable Red List identifies 'circumstances that necessarily raise
justifiable doubts as to the arbitrator's impartiality or independence'. 47 This sounds
much more like hard rules strictly prohibiting certain types of conduct rather than
mere guidelines. In this vein, some tribunals have found the IBA Guidelines to be
'instructive',48 with compliance with the IBA Guidelines being 'necessary' .4
4 E.g. UNCITRAL Model Law on International Commercial Arbitration (Dec. 2006), Art. 13(3)
(permitting national courts to reconsider a challenge to an arbitrator, even if parties have agreed to
institutional rules such as the UNCITRAL Rules.).
46 Born, supra n. 7, at 1761 ('[O]bligations of impartiality for international arbitrators arise from a variety
of sources, including applicable national law, institutional rules and arbitration agreements.').
4 Alpha Projektholding Gmbh v. Ukraine, ICSID Case No. ARB/0716, Decision on Respondent's
Proposal to Disqualify Arbitrator Dr Yoram Turbowicz, 19 Mar. 2010, para. 56.
4 Highbury Int'l, supra n. 23, para. 95; Trevino, supra n. 29.
Such an interpretation is incorrect because the IBA Guidelines are by their

very nature guidelines rather than rules. The IBA Guidelines themselves state
unequivocally that:
These Guidelines are not legal provisions and do not override any applicable national law
or arbitral rules chosen by the parties ... The Working Group trusts that the Guidelines
will be applied with robust common sense and without pedantic and unduly formalistic
50
interpretation.
Fortunately, most authorities recognize this and treat the IBA Guidelines accord-
ingly. Various tribunals have noted that the IBA Guidelines 'have indicative value
only', 1 'are not part of the legal basis on which the decision is based', 52 and 'are
not law'.5 3 In the words of the tribunal in Tidewater v. Venezuela, section 3.1.3 of
the IBA Guidelines is 'no more than a rule of thumb' 54 and the tribunal 'must
ultimately apply the legal standard laid down in the Convention itself. 5
As such, whatever guidance sections 3.1.3 and 3.3.8 of the 2014 IBA Guidelines
provide, they do not provide any legal foundation to the quantitative approach. This
point is all the more important because enthusiasm for the IBA Guidelines, though
perhaps widespread, is not universal. Some such as Johnny Veeder have commented
that the IBA Guidelines provide a platform for the malign practice of making tactical
challenges to arbitrators. 6 With respect to sections 3.1.3 and 3.3.8 in particular, others
such as Gary Born have criticized them as 'relatively extreme' and 'poorly-
considered'. It is thus important to recognize that the IBA Guidelines are not a set
of customary international arbitral law.
3.1[b] Orange List Pertains to Disclosure Not Disqualification
The second misconception pertains to the significance of falling within the Orange
List. As noted by Gary Born, '[t]he meaning and consequences of the Orange List
are complex and . . very difficult to parse'. This is unfortunate because the vast
so 2014 IBA Guidelines, supra n. 20, at 3.

51 ParticipacionesInversiones, supra n. 41.
52 Urbaser S.A. & Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. Argentine
Republic,
ICSID Case No. ARB/07/26, Decision on Claimants' Proposal to Disqualify Professor Campbell
McLachlan, Arbitrator, 12 Aug. 2010, para. 37.
5 Conoco Phillips Co. and others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30,
Decision on the Proposal to Disqualify L. Yves Fortier, Q.C., Arbitrator, 27 Feb. 2012, para. 59.
5 Ibid., para. 42.
56 Johnny Veeder, The English Arbitration Act 1996: Its 10th and Future Birthdays (Essex Court Chambers,
London), as cited in Leon Trakman, The Impartiality and Independence of Arbitrators Reconsidered, [2007]
UNSWLRS 25.
5 Born, supra n. 7, at 1881-1882 ('The IBA Guidelines' approach to repeat appointments is poorly-
considered.').
5 Ibid., at 1848.
majority of disputes involving challenges to arbitrators naturally involve the

Orange List rather than the Red or Green Lists.5 9
One approach has been to interpret Orange List situations as indicative of
justifiable doubts as to an arbitrator's independence and impartiality, albeit to a
lesser degree than the Red List. Under this approach, it is argued that even 'a single
situation included on the Orange List may necessitate an arbitrator's
disqualification'.6 0 The more Orange List situations there are, the greater the
justifiable doubts as to the arbitrator's impartiality and independence.6 1 This
approach views the Orange List as an orange light: a sign that a red light is
impending. Unfortunately, it is also misleading and best avoided.
The Orange List primarily concerns disclosure rather than disqualification.
When the IBA Guidelines were being drafted, a taskforce asked to define the
Orange List concluded that 'the Orange List should be viewed as a "disclosure"
62
list'. This was eventually reflected in the IBA Guidelines themselves, which state
that '[t]he Orange List . . reflects situations that would fall under General Standard
3(a), with the consequence that the arbitrator has a duty to disclose such
situations'.6 3 General Standard 3 relates to 'Disclosure by the Arbitrator' and not
disqualification. It bears noting that the IBA Guidelines also clearly provide that
'Nondisclosure cannot by itself make an arbitrator partial or lacking
64
independence.'
This has been recognized by tribunals such as in Tidewater v. Venezuela, which
highlighted that Orange List situations 'are situations which the Working Group
considered ought to be disclosed', and 'not situations in which, depending upon
the facts of a given case, an objective conflict of interest exists'. 5
5 Simon Greenberg & Jose Feris, References to the IBA Guidelines on Conflicts of Interest in International
Arbitration When Deciding on Arbitrator Independence in ICC Cases, 20(2) ICC Ct. Bull. 33 (2009) ('The
vast majority of references [in ICC Court practice involving challenges to arbitrators] related to the
IBA's so-called "Orange List".'); see Born, supra n. 7, at 1848 ('[M]ost disputes regarding arbitrator
disclosure and impartiality or independence involve matters on the Orange List.').
60 Universal Compression, supra n. 23, para. 22 ('Claimant asserts that "a single situation included on the
Orange List may necessitate an arbitrator's disqualification".').
61 ICS Inspection and Control Services Ltd. (United Kingdom) v. Republic of Argentina, UNCITRAL ad hoc
tribunal, Decision on Challenge to Arbitrator, 17 Dec. 2009, para. 2 ('Given that the facts underlying
Mr Alexandrov's disclosure are reflected in both of these scenarios, I am of the opinion that the conflict
in question is sufficiently serious to give rise to objectively justifiable doubts as to Mr Alexandrov's
impartiality and independence.' (Emphasis added).
62 Otto De Witt Wijnen et al., Background Information on the IBA Guidelines on Conflicts of Interest in
InternationalArbitration, 5(3) Bus. L. Int'l 433, 454 (2004).
64 Ibid.
65 Tidewater, supra n. 34, para. 43 ('By contrast with the Red List, these
are not situations in which,
depending upon the facts of a given case, an objective conflict of interest exists. Rather, they are
situations which the Working Group considered ought to be disclosed, because they may give rise to
an objective doubt as to the arbitrator's independence or impartiality.').
Part of the confusion arises because the IBA Guidelines also describe the
Orange List as 'situations that, depending on the facts of a given case, may, in
the eyes of the parties, give rise to doubts as to the arbitrator's impartiality or
independence'. 6 6 At first glance, this resembles the 'justifiable doubts' standard for
disqualification present in many institutional rules. 6 7 Accordingly, one might be
tempted to equate a finding of an Orange List situation with a finding ofjustifiable
doubts within the meaning of those institutional rules.
However, a situation that 'may, in the eyes of the parties give rise to doubts' is
not the same as one 'that give[s] rise to justifiable doubts'. As I will elaborate on in
greater detail subsequently, the 'justifiable doubts' standard is objectively assessed
rather than made 'in the eyes of the parties'. The 'eyes of the parties' standard
relates to disclosure rather than disqualification. 68
It is also pertinent to note that the 2004 IBA Guidelines originally described the
Orange List as 'situations which (depending on the facts of a given case) in the eyes of
the parties may give rise to justfiable doubts as to the arbitrator's impartiality or
independence'. 6 9 That the IBA Arbitration Committee decided to remove the word
'justifiable' for the 2014 version strongly indicates that they did not wish to equate the
Orange List with the 'justifiable doubts' standard for disqualification. Furthermore, the
plain meaning of stating that an Orange List circumstance may give rise to doubt is to
say also that such situations may just as likely not give rise to doubt.
In the earlier drafts of the IBA Guidelines, the lists were not termed Red,
Orange and Green but 'Black, Grey and White', respectively. 70 This would have
been a more accurate description of the Orange List because the Orange List
simply identifies grey areas where no presumption can be made either for or against
disqualification. The use of the colour orange instead, which in the context of
traffic lights of most countries are always followed shortly by red, gives the wrong
impression that caution and doubt are necessary.
3.2 'JUSTIFIABLE DOUBTS' STANDARD
The concept of 'justifiable doubts' appears in the standards for bringing a challenge
in most institutional rules and national arbitration laws.7 1 Its most representative

67 E.g. UNCITRAL Arbitration Rules (15 Aug. 2010) ('2010 UNCITRAL Rules'), Art. 12(1) ('Any
arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the
arbitrator's impartiality or independence.').
68 Born, supra n. 7, at 1850.
69 2004 IBA Guidelines, supra n. 9, at 18 (emphasis added).
7o Wijnen, supra n. 62, at 453 ('This practical guidance took the form of three lists, originally called:
Black, Grey and White. After discussion with various individuals and institutions, the Working Group
eventually decided to designate the lists as Red, Orange and Green, in accordance with the well-
recognised colours of the traffic light.').
71 See infra Appendices A and B.
form can be found in Article 12(1) of the 2010 UNCITRAL Rules, 7 2 which
provides that '[a]ny arbitrator may be challenged if circumstances exist that give
rise to justifiable doubts as to the arbitrator's impartiality or independence'. 7 3
Although some differences exist between the exact formulations of the 'justifiable
doubts' standards as adopted across the various institutions and national laws, a
detailed examination of the significance of this will be beyond the scope of this
article. Instead, the focus is on whether the quantitative approach can be derived
from the standards that use the concept of 'justifiable doubts'.
Most national laws and institutional rules that adopt the 'justifiable doubts'
standard do not further define what 'justifiable doubts' means. 74 Some find this
problematic because the wording of most 'justifiable doubts' standards by them-
selves are 'unhelpfully abstract'.75 They argue that reasonable minds can differ on
what is justifiable, leading to the spectre of legal indeterminacy. Against this
backdrop, practical applications of the 'justifiable doubts' standard have been
advanced, amongst which the quantitative approach is one of many. Without
explicitly departing from the 'justifiable doubts' standard, these commentators
argue that repeat appointments should presumptively give rise to justifiable doubts
as to the arbitrator's independence and impartiality.
This practical approach, while understandable, is not a part of the 'justifiable
doubts' standard itself. In fact, such categorical presumptions of justifiable doubts
are incompatible with the broad and flexible nature of the concept of 'justifiable
doubts'.
3.2[a] Content of the Justifiable Doubts' Standard
The concept of 'justifiable doubts' can be traced back to Article 10(1) of the 1976
UNCITRAL Rules, which is identical to Article 12(1) of the 2010 UNCITRAL
Rules.7 6 This was in turn modelled on the American Arbitration Association rules
and the then Inter-American Arbitration Commission Rules.7 7 It is worth noting
that the travaux prdparatoiresrecord that a proposal made by Mexico to delete the
word 'justifiable' was rejected, with Belgium emphasizing that challenges should
72 Born, supra n. 7, at 1764 ('the UNCITRAL Model Law is representative of the treatment of
arbitrator's obligations of independence and impartiality in contemporary arbitration legislation'.)
7 2010 UNCITRAL Rules, supra n. 67.
7 2014 IBA Guidelines, supra n. 20, at 6 (noting that 'laws and rules that rely on the standard of
justifiable doubts often do not define that standard'.).
7s Born, supra n. 7, at 1763.
76 UNCITRAL Arbitration Rules (15 Dec. 1976) ('1976 UNCITRAL Rules').
n UNCITRAL (9th Session) Summary Record of the 15th Meeting, A/CN.9/9/C.2/SR.15 (23 Apr.
1976), para. 62 ('Mr. Sanders [Special Consultant to the UNCITRAL Secretariat] pointed out that the
English text of paragraph 3 was modelled on the provisions of the American Arbitration Association
rules and the Inter-American Arbitration Commission rules.').
only be made in exceptional circumstances with legitimate causes for challenging

being limited in number.7 8
In the time that has passed since, a rich jurisprudence has developed providing
further guidance on the contours of the phrase. In Gallo v. Canada, the tribunal
found that 'under the UNCITRAL Rules doubts are justifiable . . if they give rise
to an apprehension of bias that is, to the objective observer, reasonable'. 79 This is
consistent with General Standard 2(c) of the IBA Guidelines, which suggests that:
Doubts are justifiable if a reasonable third person, having knowledge of the relevant facts
and circumstances, would reach the conclusion that there is a likelihood that the arbitrator
may be influenced by factors other than the merits of the case.so
Such interpretations closely follow the test for disqualification of judges under
national law.8 1 For example, under English law the test for bias is 'whether the fair-
minded and informed observer, having considered the facts, would conclude that
there was a real possibility that the tribunal was biased'. 8 2 In general, it can thus be
said that the test under the 'justifiable doubts' standard is whether a reasonable and
informed observer, having knowledge of the relevant facts, would conclude that
there is a likelihood that the arbitrator was biased.
3.2[b] Incompatibility Between Quantitative Approach and Justifiable Doubts' Standard
Although linguistic expressions of uncertainty such as 'justifiable doubts' can be

said to be inherently 'fuzzy', they do appear in other areas of law such as the
standard of proof in criminal law.8 3 Similarly, although one could argue that a
'reasonable and informed observer' test is subject to varied interpretations, the 'fair
and reasonable person' has been described as the 'most venerable' of hypothetical
figures in law. 84 These legal standards should not be interpreted as bad law in need
78 UNCITRAL (9th Session) Summary Record of the 3rd Meeting, A/CN.9/9/C.2/SR.3 (15 Apr.
1976), paras 8 and 11 ('Mr. Mantilla-Molina (Mexico) said . . [i]n paragraph 3 the word "justifiable"
should be deleted.') ('Mr. Jenard (Belgium) emphasized that challenges should only be made in
exceptional circumstances and that legitimate causes for challenging should be limited in number.').
7 Vito Gallo v. Government of Canada, PCA Case No. 55798, Decision on the Challenge to Mr
J. Christopher Thomas, QC, 14 Oct. 2009, para. 19.
so 2014 IBA Guidelines, supra n. 20, at 5.
81 E.g. PT CentralInvestindo v. Franciscus Wongso and others, Singapore High Court, [2014]
S.G.H.C. 190,
para. 15; 9 Sch (H) 22/03, Oberlandesgericht Kd1n [Higher Regional Court Cologne], CLOUT Case
No. 1062, 2 Apr. 2004; Jung Science, supra n. 44, para. 49.
82 Porter v. Magill, House of Lords, [2002] A.C. 357, para. 103 (as cited in Cofely v. Bingham, supra
n. 25,
para. 72).
83 Katrin Mueller-Johnson et al., Instructions on Reasonable Doubt: Defining the Standard of Proof and the
juror's Task, 21(2) Psychol. Pub. Pol'y L. 169, 170 (2015).
84 Healthcare at Home Ltd. v. Common Services Agency, UK Supreme Court, [2014] UKSC 49, para. 1.
of supplementary rules such as the quantitative approach, but rather ex post rule-
making instead of ex ante rule-making.
The 'justifiable doubts' standard and attendant 'reasonable and informed
observer' standard are examples of ex-post rule-making where substantial discretion
is conferred upon the adjudicator to determine, after the relevant event has
occurred, whether the said event violated the contours of permissible conduct
85
(e.g. disqualification where 'justifiable doubts' exist). The quantitative approach
is a form of ex ante rule-making where precise rules are enacted before the relevant
event (e.g. disqualification where there have been two or more appointments by
the same party), and the adjudicator has the straightforward task of applying the
rules to the facts.8 6 Although ex ante rule-making can admittedly be said to provide
clearer guidance on the precise limits of acceptable conduct, ex post rule-making is
more appropriate for the standard governing arbitrator disqualification. As noted
by William Park, 'most arbitration frameworks follow the [ex post rule-making]
approach, mandating only "reasonable" and "appropriate" procedures'. 8 7
In the context of standards governing arbitrator disqualification, ex post rule-
making is necessary to reflect how the precise degree of independence and
impartiality required will vary based on the circumstances in each case. Defining
in advance what counts as justifiable doubts is overly ambitious and not
recommended."" For instance, it is commonly held that the requirement for
independence and impartiality is higher at the beginning of proceedings than at
the end because of the greater consequences that will result from disqualification at
a late stage." 9 Similarly, the surrounding 'legal traditions and culture' affect the
85 William Park, The 2002 Freshfelds Lecture - Arbitration'sProtean Nature: The Value ofRules and the
Risks
of Discretion, 19(3) Arb. Int'l 279, 294 (2003).
86 Ibid.
87 Ibid.
88 Chan Leng Sun, Arbitrators' Conflicts of Interest: Bias by Any Other Name, 19 SAcLJ 245, para. 64 (2007)
('There is danger in arbitral institutes trying to formulate more detailed or quantitative guidelines on
what may or may not amount to justifiable doubts. Writing an essay on conflicts of interest is one
thing. Prescribing in advance what may or may not amount to a conflict of interest is an entirely bold
venture.').
89 Born, supra n. 7, at 1821 ('a higher requirement for the impartiality/independence of arbitrators is
appropriate at the outset of proceedings, when non-confirmation or removal of an arbitrator results in
little delay and no wasted effort, than late in the course of or at the end of proceedings, where
disqualification of an arbitrator requires repeating the entire arbitral process and, in some cases,
annulling an award'.); 2014 IBA Guidelines, supra n. 20, at 9 ('As a practical matter, arbitration
institutions may make a distinction depending on the stage of the arbitration. Courts may likewise
apply different standards.'); Laurence Craig et al., International Chamber of Commerce Arbitration para.
13.01 (3d ed., Oceana Publications 2000) ('where an objection is made at the very earliest stage of the
proceedings, the [ICC] Court should be more willing to give weight to a party's objection to an
arbitrator than it would after the proceedings were well under way'); Alan Rau, On Integrity in Private
judging, 14 Arb. Int'l 115, 117 (1998) ('After the hearings have begun - and particularly after an award
has been made - it will seem natural to strike the balance somewhat differently.').
degree of independence and impartiality required.9 0 Without incorporating the

concepts of 'justifiable doubts' and 'reasonable and informed observer' into the
very standard of independence and impartiality itself, we would have to articulate
different standards of impartiality and independence for each situation depending
on the context.
Bright-line rules such as the quantitative approach and its prohibition on
repeat appointments are thus unworkable as a generally applicable standard of
independence and impartiality because they will not be able to adapt themselves
to the situation at hand. This is apparent from the need for footnote 5 to section
3.1.3 of the IBA Guidelines, which notes that the section will not apply to types of
arbitration where 'it is the custom and practice for parties to frequently appoint the
same arbitrator' 91
What this means is that the 'justifiable doubts' standard adopts a different
philosophy from the quantitative approach and does not provide any legal
foundation for a prohibition against repeat appointments. Under the justifiable
doubts standard, repeat appointments are of no special significance and the only
question is whether a reasonable and informed observer, having knowledge of
the relevant facts, would conclude that there is a likelihood that the arbitrator
was biased. This question is answered on a case-by-case basis, 92 and is accord-
ingly incompatible with hard and fast rules such as a prohibition on repeat
appointments.
3.3 ICSID STANDARD
The ICSID Convention provides for disqualification under Article 57 read with
Article 14(1)." Article 57 provides that a party may propose disqualification on the
basis of 'a manifest lack of the qualities required' by Article 14(1). Article 14(1)
requires that arbitrators be 'persons of high moral character and recognized com-
petence in the fields of law, commerce, industry or finance, who may be relied
upon to exercise professional judgment'. Nothing is mentioned about repeat
appointments.
9o Jung Science, supra n. 44, para. 55.

91 2014 IBA Guidelines, supra n. 20, at 22-23 ('Ifin such fields it is the custom and practice for parties to
frequently appoint the same arbitrator in different cases, no disclosure of this fact is required, where all
parties in the arbitration should be familiar with such custom and practice.').
92 Christopher Kee, Judicial Approaches to Arbitrator Independence and Impartiality in International Commercial
Arbitration in Investment and Commercial Arbitration -Similarities and Divergences (Christina Knahr et al.
eds, Eleven International Publishing 2010) ('allegations of independence and impartiality against
arbitrators should be dealt with on a case by case basis'.).
93 Convention on the Settlement of Investment Disputes between States and Nationals of Other States,
Arts 14(1) and 57 (18 Mar. 1965) (entered into force 14 Oct. 1966), 575 U.N.T.S. 159.
The term 'manifest' has traditionally been interpreted as imposing a 'rela-

tively heavy burden of proof on the party making the proposal' ,9 such that this
standard has been described as 'nearly impossible to satisfy 9 5 and 'an extremely
high bar for challenging an arbitrator'. 9 6 More recently, some commentators
suggest that a shift in the interpretation of 'manifest' towards the 'appearance of
bias standard' is taking place.9 7 Even if that is the case, it would represent a
convergence with the 'justifiable doubts' standards and still fail to provide any
legal basis for the quantitative approach or any prohibition on repeat
appointments.
It should be noted that no ICSID arbitrator has been known to be
removed on the grounds of repeat appointments as of 2016. Challenges on
the ground of repeat appointments were raised in Electrabel v. Hungary,9 8
Tidewater v. Venezuela,99 Universal Compression v. Venezuela, 100 Caratube v.
10 1
Kazakhstan, Igkale v. Turkmenistan,102 and Highbury v. Venezuela1 0 3 ; and
were rejected in all of them except Caratube v. Kazakhstan, where the tribunal
saw no need to decide on the repeat appointments argument because the
arbitrator could be disqualified on another ground. 104 The position thus
largely remains that holding repeat appointments 'does not, without more,
indicate a manifest lack of independence and impartiality', 1 05 and proof of
other additional factors besides the repeat appointments themselves is
needed. 106
9 Christoph Schreuer, The ICSID Convention: A Commentary 933 (1st ed., CUP 2001); Universal
Compression, supra n. 23, at 71.
9s Peter Ashford, Arbitrators' Repeat Appointments and Conflicts ofInterests, Cripps Harries Hall LLP Publ'ns
(Feb. 2011).
96 Lucy Reed et al., Guide to ICSID Arbitration 80 (1st ed., Kluwer Law International 2004).
9 Chiara Giorgetti, Kluwer Arbitration Blog, Towards a Revised Threshold for Arbitrator Challenges Under
ICSID? (3 July 2014), http://kluwerarbitrationblog.com/2014/07/03/towards-a-revised-threshold-
for-arbitrators-challenges-under-icsid/ (accessed 6 Apr. 2016); Meg Kinnear, Challenge of Arbitrators
at ICSID - An Ovewiew, 108 Proceedings of the Annual Meeting (ASIL) 412 (2014).
98 Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19, Decision on the Claimant's
Proposal to Disqualify a Member of the Tribunal, 25 Feb. 2008.
9 Tidewater, supra n. 34.
100 Universal Compression, supra n. 23.
101 Caratube Int'l, supra n. 6.
102 I;kale Inyaat Ltd. Sirketi v. Turkmenistan, ICSID Case No. ARB/10/24, Decision on Claimant's
Proposal to Disqualify Professor Philippe Sands, 11 July 2014.
103 Highbury Int'l, supra n. 23.
104 Caratube Int'l, supra n. 6, para. 108 ('That determination is not made with a view to decide whether
"repeat appointments" would in general be good causes for the disqualification of an arbitrator, an
issue that is highly controversial.').
106 Sobota, supra n. 32, at 299.
4 QUANTITATIVE APPROACH RELIES ON QUESTIONABLE

REASONING
Besides lacking in legal substance, the quantitative approach also suffers from unsatis-
factory reasoning used to connect the fact of repeat appointments with the conclusion
of an appearance of bias. As earlier discussed, a successful challenge under most
institutional rules would at minimum require that a reasonable and informed observer
with knowledge of the facts would conclude that there was a real possibility that the
tribunal was biased. This step calls for the articulation of coherent reasons why and
how the appearance of bias arises from the circumstances. As one United Nations
Commission on International Trade Law (UNCITRAL) challenge decision put it, the
challenging party 'has to furnish adequate and solid grounds for its doubts. Those
grounds must respond to reasonable criteria'. 107
The fact that the analysis is directed at the appearance of bias rather than actual
bias does not mean that the appearance need not be reasonable. Naturally, bare
allegations of an appearance of bias without supporting reasoning should not
succeed. In the context of a challenge based on repeat appointments, this need
for reasoning cannot be short circuited by arguing that the appearance of bias is
self-evident. That there are two opposing lines of authorities and commentaries on
challenges based on repeat appointments shows how the appearance of bias, if any,
is not self-evident. As such, parties bringing a challenge on the grounds of repeat
appointments have the burden of showing a connection between the fact of repeat
appointments and the conclusion of an appearance of bias.
To this end, challenging parties typically argue that an appearance of bias arises
because an arbitrator who receives repeated appointments from the same appoint-
ing party will: (1) be more likely to favour that appointing party so as to secure
even more appointments from that appointing party in future; and (2) naturally
favour that appointing party since she is more familiar with them. Neither of these
arguments hold up to scrutiny.
4.1 DOES THE DESIRE FOR REPEAT APPOINTMENTS CORRUPT?
4.1 [a] Tension Between Duty and Desire
Proponents of the quantitative approach argue that repeat appointments give rise to
an appearance of bias because the arbitrator has a self-interest in obtaining repeat
appointments from the appointing party and may accordingly favour that
107 Country X v. Company Q, UNCITRAL Challenge Decision (11 Jan. 1995), in Yearbook Commercial
Arbitration 1997 - Volume XXII 227 (Albert van den Berg ed., Kluwer Law International 1997).
appointing party. 108 The alleged possibility of bias arises because an arbitrator,
being both an impartial adjudicator and also a service provider appointed and paid
for by the parties, might be tempted to decide cases according to their impact on
her future appointments rather than the merits of the case at hand. 109 When repeat
appointments have been made, this possibility becomes a probability and an
appearance of bias hence arises. 1 10 This sentiment has been observed by numerous
commentators,11 1 and was the subject of much discussion at the 2014 ICCA
Congress in Miami.112
Their starting point is that arbitrators compete for appointments in the arbitral
marketplace and have a self-interest in obtaining more appointments. 113 Arbitrators
are humans and it is human nature to be somewhat self-interested.1 14 This self-
interest in obtaining more appointments can be both pecuniary and non-pecuniary,
and is further compounded by the network effect of arbitral appointments. 115
Pecuniary rewards are essentially remuneration,1 1 6 and non-pecuniary interests
include matters such as prestige.1 1 7 In a survey of over 500 arbitration practitioners
conducted in 2014 at the International Council for Commercial Arbitration (ICCA)
Congress in Miami, more than 90% of respondents identified both international
'os Rogers, supra n. 1, at 226. ('Critics hypothesize that investment arbitrators favor their appointing party
in a self-interest effort to increase the likelihood of future appointments.').
' Richard Posner, What Do Arbitrators Maximize? in Law and Economics ofInternationalArbitration, Series in
Law and Economics, Fifth International Conference on Law and Economics at the University of St. Gallen 130
(Peter Nobel et al. eds, Schulthess Verlag 2014).
110 Chong, supra n. 5, ('The concern is that an arbitrator who has been continually appointed is likely to
be more receptive to the interests of the party who appointed him, and that this receptiveness is
concretised in an arbitral award that favours the party who has made the appointment.').
... Paulsson, supra n. 2, at 14 ('Whatever their motivation, arbitrators tend to want to be reappointed. In
the case of an arbitrator who considers that his only chance lies with the party which has already
named him once, this might result in more or less dissimulated, but nevertheless systemic, favourit-
ism.'); Park, supra n. 40, at 209 ('there may be some truth to the oft-repeated assertion that arbitrators
want to see cases decided in favour of the parties which appointed them'.); Yuval Shany, Squaring the
Circle? Independence and Impartiality of Party-Appointed Adjudicators in International Legal Proceedings, 30
Loy. L.A. Int'l & Comp. L. Rev 473, 483 (2008) ('[P]arty appointed adjudicators are pre-disposed to
vote in favor of their appointing party.').
112 Susan Franck et al., International Arbitration: Demographics, Precision and justice in Legitimacy: Myths,
Realities, Challenges, ICCA Congress Series, Volume 18 (Albert van den Berg ed., Kluwer Law
International 2015).
113 Robert Cooter, The Objectives of Private and PublicJudges, 41 Pub. Choice 107 (1983); Paulsson, supra
n. 2.
114 Posner, supra n. 109, at 123 ('I think there are no fundamental differences between judges, arbitrators,
workers and politicians. They (or better we) all are self-interested, and I mean that not in any bad
sense. It's human nature to think about one's life and an adequate income, to do a good job and to
pursue, to a certain extent, also personal interests.').
115 Sergio Puig, Social Capital in the Arbitration Marketplace, 25 Eur. J. Int'l L. 387, 408-412 (2014)
(identifying a network effect in ICSID appointments).
116 Franck, supra n. 112, at 79 ('[T]here is undoubtedly a fiscal incentive to serve as an arbitrator and
receive remuneration.').
117 Thomas Schultz & Robert Kovacs, The Rise of a Third Generation of Arbitrators: Fifteen Years after
Dezalay and Garth, 28 Arb. Int'l 161, 162 (2012) (noting that 'symbolic wealth' includes 'prestige').
commercial arbitration and international treaty arbitration to be at least 'moderately

-- , 118
prestigious
.
With regard to how the self-interest translates to an appearance of bias when

repeat appointments are present, two related explanations are possible. The arbi-
trator either becomes dependent on the party or law firm for income and appoint-
ments, or becomes likely to be partial to the party or law firm out of greed.
The argument based on dependence has been noted by commentators such as
Jan Paulsson, who consider that repeat appointments raise questions of dependence
because the arbitrator might consider the party to be her 'only chance' at receiving
more appointments. 119 Similarly, Karel Daele suggests that repeat appointments
might result in an arbitrator depending on a single party or law firm for the
majority of her appointments or income. 120 This line of reasoning has been raised
in some challenges, such as OPIC Karilmun v. Venezuela, where the challenging
party argued that the arbitrator 'cannot be relied upon to exercise independent
judgment because he is beholden to the Respondent and the Respondent's law
firm for a significant number of his arbitration appointments (and therefore pre-
sumably his compensation)'. 1 21 Similarly, in Cofey v. Bingham, the challenging
party argued that since 25% of the arbitrator's total income came from the
appointing party, a fair minded observer would conclude that the arbitrator has
'an appearance of a significant financial dependence' on that appointing party and
therefore may be influenced to favour them. 122 This line of reasoning appears to
have been accepted in Cofey v. Bingham, as well as Tidewater v. Venezuela, where
the tribunal considered that the prospect of repeat appointments might lead to a
relationship of dependence. 123
The argument based on partiality is broadly similar, except that the motivation
for reappointments is born of greed rather than dependence. It is argued that
arbitrators who receive repeat appointments are more likely to behave like parti-
sans in disregard of their duty of independence and impartiality, so as to attract
more appointments. 124 The reasoning goes that deciding in favour of the
118 Franck, supra n. 112, at 81 (488/515 respondents indicated 'moderately prestigious' or higher in the
context of ICA; 502/512 of the respondents indicated moderately prestigious or higher for ITA.).
"9 Paulsson, supra n. 2.
120 Karel Daele, Challenge and Disqualification ofArbitrators in International Arbitration 344 (Kluwer Law
International 2012) ('[T]here is a justified concern that an arbitrator who becomes reliant upon a single
party or a single law firm for the majority of his/her appointments may find his/her independence
compromised and may favour the appointing party or law firm's arguments so that he/she may secure
the flow of future appointments'.).
121 OPIC Karimum, supra n. 11, para. 21.
122 Cofely v. Bingham, supra n. 25, para. 92.
124 Franck, supra n. 112, at 85; Rogers, supra n. 1, at 226.
appointing party would enhance the likelihood of reappointment by that party and
further create a reputation for treating appointing parties favourably. 125
These lines of reasoning rely on the potentially corrupting desire for repeat
appointments and are plausible enough, but fail to accurately depict the whole
picture. In particular, two counterpoints can be raised. First, it is an oversimplifica-
tion to argue that self-interest in obtaining repeat appointments will necessarily
come at the expense of independence and impartiality. Second, the inquiry into
dependence should consider percentages rather than absolute numbers of
appointments.
4.1[b] Desire and Duty in Harmony
In the contest between an arbitrator's desire for appointments and duty of inde-
pendence and impartiality, there is no reason to believe that independence and
impartiality will always be sacrificed. Whilst arbitrators might indeed be somewhat
propelled by self-interest, the notion of the arbitrator as a single dimensional
automaton driven solely by the hunger for appointments is overly simplistic.
Indeed, in a 2014 survey conducted at the ICCA Congress in Miami involving
256 lawyers with experience as an arbitrator, more than 75% reported that con-
siderations about future appointments do not feature in their decision-making for
the case. 126 While this result is potentially affected by self-serving bias, 127 it does
support the notion that other motivations are at play and the desire for more
appointments is but one of many.
Beyond the perhaps idealistic notion that arbitrators are driven also by virtues
such as the pursuit of good policy and justice, 12 8 practical considerations also deter
arbitrators from breaching their duty of independence and impartiality. For one,
the reputational costs to being called out as a biased or 'hired' arbitrator is
immense. As William Park noted, arbitrators care deeply about the esteem of
their colleagues and have strong incentives to protect their reputation for
integrity. 129
125 Kapeliuk, supra n. 3, at 294-295.

126 Franck, supra n. 112, at 117 ('neither ICA nor ITA arbitrators believed they were motivated by
concerns related to reappointment or establishing themselves as collegial players during contempora-
neous decisionmaking. For both ICA and ITA, more than 75% of arbitrators indicated that they either
disagreed (or simply did not care) about future reappointments. Those findings cut against the theory
that arbitrators are self-motivated partisans in adjudication or otherwise actively game adjudication to
obtain future appointments'.).
127 Ibid., at 91 ('[Gliven the nature of the questions, it is possible that responses exhibited a self-serving
bias.').
128 Ibid., at 79.
129 Park, supra n. 40, at 209 ('Individuals who serve as arbitrators care deeply about the respect of
their
colleagues, for reasons both personal and professional.').
Furthermore, the pitting of the desire for reappointments against the duty of
independence and impartiality is a false dilemma. Alternative paradigms are possible
where the arbitrator's interest in maximizing reappointments co-exists in harmony
with their duty of independence and impartiality. For instance, the desire for
reappointments might incentivize an arbitrator to develop a reputation for being
impartial and independent. 130 Parties look for many attributes in an arbitrator, and
the ideal arbitrator would not just decide in their favour but also be impervious to
challenges.
In Tidewater v. Venezuela, the tribunal indeed noted that Professor Stern was
appointed 'because of her independence, rather than the reverse'. 132 In this same
vein, some commentators have theorized that arbitrators are incentivized to act as
'trustees' of the international arbitration system who are neutral on procedural
matters but firm on substantive ones. Such strategies that do not compromise on
independence and impartiality are probably more effective at maximizing reap-
pointments and hence more commonly adopted than developing a reputation as a
hired gun. Parties are likely to avoid arbitrators who are known to be hired guns
because such arbitrators will likely have diminished clout within the tribunal that is
eventually formed.
As such, the narrative that connects repeat appointments with an appearance
of bias by relying on the presumption that arbitrators will sell their integrity for
repeat appointments is overly simplistic and should be rejected.
4.1[c] Dependence Cannot be Inferredfrom Absolute Numbers
Even supposing that an appearance of dependence can plausibly be observed when

an arbitrator accepts the majority of her appointments from a single law firm or
party, it should not be presumed that there exists a magic number of appointments
beyond which dependence can be presumed. Setting a numerical cut-off such as
'two or more' or 'more than three' is both arbitrary and lazy, for it simply allows
the deciding body to avoid conducting a full and proper assessment of the entirety
of the circumstances.134
13o Charles Brower & Stephan Schill, Is Arbitration a Threat or a Boon to the Legitimacy of International
Investment Law?, 9 Chi. J. Int'l L. 471, 492 (2009).
131 Sobota, supra n. 32, at 294 ('[Parties] rationally may aim to select arbitrators who not only possess
requisite skills and experience, but also credibility and integrity.'); Park, supra n. 40, at 200-201.
133 Karen Alter, Agents or Trustees? International Courts in their Political Context, 14 Eur. J. Int'l Rel. 33
(2008); see also Anne van Aaken, Control Mechanisms in InternationalInvestment Law in The Foundations of
International Investment Law: Bringing Theory into Practice (ZachariasDouglas et al. eds, OUP 2014).
13' Born, supra n. 7, at 1882.
If dependence can be inferred from a number, that number should be a

percentage rather than an absolute number. Bare numbers removed from context
do not convey much if any information. In the context of dependence based on
repeat appointments, what matters is not the number of repeat appointments had
but the significance of those appointments in terms of either the proportion it
represents based on the total number of appointments received by the arbitrator; or
even better, the proportion it represents in terms of the income those appoint-
ments provided against the arbitrator's total income. It bears noting that many
arbitrators also serve as counsel, which may be more financially rewarding than
arbitral appointments. 135
This approach has been applied by various tribunals and courts. For instance,
in OPIC Karimum v. Venezuela, the tribunal dismissed the argument that the
arbitrator was dependent on the appointing party law firm because the evidence
showed that the income received from arbitral appointments was just 5.89% of the
arbitrator's total income.1 3 6 Similarly, in Cofey v. Bingham, the court assessed the
alleged dependence between the arbitrator and the appointing party by examining
the percentages that the appointments and income from that party signified, rather
than their absolute number. 137
By presuming dependence based on absolute numbers removed from context,
the quantitative approach displaces the proper approach of assessing the significance
(if any) of the repeat appointments against the wider factual backdrop. Any
practical advantages of such a quantitative approach in terms of certainty are
illusory because most would agree that uncertain justice is still better than certain
injustice.
4.2 DOES FAMILIARITY BREED PARTIALITY?
4.2[a] Familiarity, Loyalty and Inequality
The second line of reasoning that proponents of the quantitative approach fre-
quently invoke is that repeat appointments effectively create an improper relation-
ship of familiarity or loyalty between the arbitrator and the appointing party, where
the arbitrator at least subconsciously favours the appointing party. 1 3 " The argument
that familiarity with something will generate goodwill towards it sounds intuitively
appealing, and some studies in social psychology indeed suggest that a 'mere
135 Franck, supra n. 112, at 79.

136 OPIC Karimum, supra n. 11, paras 40 and 55.
137 Cofely v. Bingham, supra n. 25, para. 104.
138 Sobota, supra n. 32, at 295 ('[T]here are also nagging doubts that a relationship of familiarity or
even
loyalty may have developed between the arbitrator and the appointing party.').
exposure effect' exists whereby repeated exposure to a stimulus will engender an

increase in positive affect towards that stimulus. 1 3 9 Beyond such feelings of good-
will, an arbitrator who receives repeat appointments might also feel a sense of
indebtedness to the appointing party and feel obliged to return the favour. This
implicit bias can work insidiously in the background, resistant to the wilful control
of the arbitrator.
A clear example of such reasoning was argued in Murphy Exploration v.
Ecuador.140 The challenging party alleged that repeat appointments, in conjunction
with other facts, evinced 'a deep relationship of cooperation and reciprocal trust'
that was 'aimed at mutual professional collaboration and advancement'. 14 1 Further
variations of such arguments were used in Tidewater v. Venezuela and OPIC
Karimum v. Venezuela. In both cases, the challenging party argued that repeat
appointments created a potential for or appearance of undue influence, and further
provided the appointing party with an unfair advantage. 142 This undue influence
presumably arises from the arbitrator's desire for more appointments from that
appointing party in future, as well as the inordinate familiarity between the
arbitrator and the appointing party. With regard to unfair advantage, the challen-
ging party in Tidewater argued that a repeat appointing party will have multiple
opportunities to make their arguments to that arbitrator, whereas the opposing
party will have only one opportunity to do so. 143 This is said to put the appointing
party on an unequal footing with the opposing party because of the 'greater
familiarity with the arbitrator's decision-making process and predilections'. 14 4
The plausibility of such reasoning seems to have been acknowledged by the
tribunal in OPIC Karimum, which noted that 'a relationship of familiarity and
confidence [is] inimical to the requirement of independence', and that repeat
appointments might be perceived by some as either a product or cause of such
relationships of familiarity. 14 5 However, a closer look is necessary.
4.2[b] Familiarity Without Friendship Is Fine
There are two problems with the above line of reasoning. The first is simply that
familiarity should not be presumed to lead to partiality. The second is that some
degree of familiarity is expected and acceptable.
139 Robert Zajonc, Attitudinal Effects of Mere Exposure, 9(2) J. Pers. Soc. Psy. Mono. Supp. 1 (1968).
140 Murphy Exploration & Production Co. Int'l v. Republic of Ecuador, UNCITRAL, PCA Case No. AA434.
141 Letter by Respondent in Murphy Exploration v. Ecuador (21 Dec. 2011), www.italaw.com/cases/1198
(accessed 6 Apr. 2016).

142 See OPIC Karimum, supra n. 11, para. 21; Tidewater, supra n. 34, para. 13.
144 Sobota, supra n. 32, at 295.
145 OPIC Karimum, supra n. 11, para. 47.
The notion of a 'mere exposure effect' whereby an arbitrator develops

partiality towards a party that repeatedly appears before her is at best speculative.
Even if such a 'mere exposure effect' exists in general, studies suggest that they do
not apply in the context of social relations. Contrary to the notion that familiarity
leads to liking, researchers have found evidence that familiarity in fact breeds
contempt, and there is a negative relationship between knowledge and liking. 14 6
This controverts the presumption challenging parties make that familiarity would
lead to liking and hence give rise to an appearance of bias.
A more problematic issue with the inference of an appearance of bias from
familiarity due to repeat appointments is that some degree of familiarity between
arbitrator and appointing party is perfectly acceptable. Appointing parties cannot
reasonably be expected to appoint arbitrators they are unfamiliar with or do not
trust. Accordingly, even if repeat appointments give rise to the semblance of a
relationship between the appointing party and the arbitrator, it still has to be shown
that the relationship is of such intimacy as to give rise to an appearance of bias.
Numerous decisions indicate that only especially sensitive relationships
would give rise to an appearance of bias. 147 Amongst others, professional
interactions, 148 business relationships, 149 Facebook friendship, 15 0 and even a
close personal relationship 15 1 have all been found to be insufficient for dis-
qualification. Against this backdrop, the usage of the number of repeat appoint-
ments received as a proxy for a relationship capable of giving rise to an
appearance of bias is not reasonable.
5 QUANTITATIVE APPROACH INTERFERES WITH PARTY

AUTONOMY
Questions of policy in international arbitration can typically be balanced by the

parties themselves. For instance, a party that prioritizes certainty over flexibility
Dan Ariely et al., Less Is More: The Lure of Ambiguity, or Why FamiliarityBreeds Contempt, 92
16
J. Pers.
Soc. Psychol. 97 (2007).
147 E.g. 34 SchH 05/06, Oberlandesgericht Miinchen [Higher Regional Court Munich], 5 July 2006.
148 Jung Science, supra n. 44; F.D.I.C. v. IIG Capital LLC, US Court of Appeals, 7 Aug. 2013, 525
F. App'x. 904 (11th Cir. 2013).
149 17 SchH 13/01, Oberlandesgericht Hamm, 22 July 2002 [Higher Regional Court Hamm].
o FU.R.L. Tesco v. S.A.S. Neoelectra Group, Cour d'appel Paris [Paris Court of Appeal], No. 09/28537,
10 Mar. 2011, J. Int'l Arb. 787 (2011).
15' Decision by the SCC Board in SCC Case No. 115/2010, as cited in Felipe Tellez, Arbitrator's
Independence and Impartiality: A Review of SCC Board Decisions on Challenges to Arbitrators (2010-
2012), Electronic Library of the Arbitration Institute of the Stockholm Chamber of Commerce
(2013) http://www.sccinstitute.com/media/30001/felipe-mutis-tellez article-on-scc-challenges-on-
arbitrators.pdf (accessed 6 Apr. 2016).
might well find the quantitative approach to be good policy, and accordingly adopt
a prohibition against repeat appointments in their arbitration agreements. In
evaluating the merits of the quantitative approach from a conceptual standpoint,
the focus will thus simply be on whether it interferes with party autonomy.
Party autonomy enjoys a celebrated status in international arbitration and
has been described as the 'foundation stone' 152 and 'factual, legal, and ideolo-
gical core'1 5 3 of arbitration. Two aspects of party autonomy are relevant to the
assessment of the quantitative approach. First, does it unduly interfere with a
party's autonomy to choose the rules or standards of their liking? Second, does
it unduly interfere with a party's autonomy to choose an arbitrator of their
liking?
5.1 AUTONOMY TO AGREE ON STANDARDS
On one extreme, it could be argued that parties should have complete autonomy
over the standards of independence and impartiality required of an arbitrator. For
instance, they should be able to waive it. This is not entirely outrageous, and the
American Arbitration Association Arbitration Rules provide that parties may agree
that the party appointed arbitrators 'need not be impartial or independent and shall
not be subject to disqualification for partiality or lack of independence'. 154
At the other end of the spectrum, it is argued that strict mandatory standards
should be required of arbitrators because the legitimacy of arbitration depends on
the independence and impartiality of the arbitrators. 15 5 From this perspective, the
quantitative approach would seem perfectly legitimate.
The ideal balance lies nicely in between. A minimum and non-waivable core
of independence and impartiality should rightly be required in the interests of
legitimacy, but enhanced standards such as a prohibition on repeat appointments
should apply strictly by agreement only. Accordingly, the quantitative approach is
unobjectionable insofar as parties expressly agree to be bound by this higher
standard. Unfortunately, as in many of the cases mentioned above, arbitrators
have been challenged or disqualified on the grounds of repeat appointments even
where there was no such agreement to place especial significance to the number of
repeat appointments. This practice of applying a quantitative approach despite the
152 Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration 135 (4th ed.,
Sweet & Maxwell 2004).
153 Joshua Karton, The Culture ofInternationalArbitration and The Evolution of ContractLaw 79 (OUP 2013).
151 Commercial Arbitration Rules of the American Arbitration Association ('AAA Arbitration Rules')
(1 Oct. 2013), r .18(b).

155 Chong, supra n. 5 ('[T]he legitimacy of arbitration hinges upon how questions of impartiality
and
independence will be answered by the arbitration community.').
absence of prior agreement of the parties to do so is contrary to the principle of

party autonomy and thus undesirable.
5.2 AUTONOMY TO APPOINT ARBITRATORS
The ability of a party to appoint an arbitrator has been described as a 'key

characteristic' of arbitration that gives it its identity and distinguishes it from
litigation.1s However, it has also been described as a 'moral hazard'.1s7
Depending on one's opinion on the system of unilateral party-appointed arbitra-
tors, the quantitative approach can be seen either as an intrusion on the parties'
fundamental right to select arbitrators 158 or a small step towards safeguarding the
legitimacy of arbitration.
Some recent developments seem to suggest that a movement away from a
system of party-appointed arbitrators might be happening. The proposed text
of the Transatlantic Trade and Investment Partnership agreement referenced
an Investment Court System rather than arbitration.15 9 The impending
Comprehensive Economic and Trade Agreement requires joint agreement
on arbitrators, 16 0 as does the 2014 LCIA Arbitration Rules.16 1 The
Singapore International Commercial Court has been set up, joining the
ranks of other international commercial courts. On one reading these devel-
opments indicate a growing dissatisfaction with the unilateral party-appointed
arbitrator system, which the quantitative approach would be well-placed to
mitigate.
Even if it is true that concerns over the legitimacy of arbitration have
increased, to address them by restricting a party's right to appoint arbitrators
would be akin to curing the disease by killing the patient.
As a starting point, it is important that unrealistic expectations are not held.
Arbitrators should not be expected to be 'gowned robots', 1 62 perfectly
156 Sebastian Perry, Global Arbitration Review, When GAR Met Gary (26 Nov. 2014), http://globalarbi
trationreview.com/news/article/33167/ (accessed 6 Apr. 2016).
157 Jan Paulsson, Moral Hazard in International Dispute Resolution, 25(2) ICSID Rev. FILJ 339 (2010).
158 Born, supra n. 7, at 1779.
159 Catharine Titi, Kluwer Arbitration Blog, Transatlantic Trade and Investment Partnership (TTIP) and a
Paradigm Shift from Arbitration to Investment Law Trial? (19 Jan. 2016), http://kluwerarbitrationblog.
com/2016/01/19/transatlantic-trade-and-investment-partnership-ttip-and-a-paradigm-shift-from-arbi
tration-to-investment-law-trial/ (accessed 6 Apr. 2016).
160 Comprehensive Economic and Trade Agreement, Ch. 29, Art. 29.7 (30 Oct. 2016), http://trade.ec.
europa.eu/doclib/docs/2016/Feb./tradoc_154329.pdf (accessed 25 Apr. 2017).
16' LCIA Arbitration Rules (1 Oct. 2014), Art. 5.7 ('No party or third person may appoint any arbitrator
under the Arbitration Agreement: the LCIA Court alone is empowered to appoint arbitrators (albeit
taking into account any written agreement or joint nomination by the parties)').
162 Sam Luttrell, Bias Challenges in InternationalCommercial Arbitration: The Needfor a 'Real Danger' Test 264
(Kluwer Law International 2009).
indifferent to the parties and their concerns.1 6 3 It is simply a reality that parties
want to win and will make arbitrator appointments with this objective in
mind. 164 While this does suggest that the independence of a party-appointed
arbitrator will not be identical to that of a judge, 16 5 this should be seen as a fact
of arbitration rather than a defect to be cured. It has long been the practice of
some parties to look for arbitrators with 'maximum predisposition . . but with
the minimum appearance of bias'.1 6 6
The emergence of alternatives to the unilateral party-appointed
arbitrator system should not be seen as a loss of confidence in the system
but simply the arrival of competitors. In fact, with these alternatives now
readily available, it becomes all the more important to preserve an unfettered
unilateral party appointment system for those who still choose arbitration.
The quantitative approach attempts to strike out a compromise, but by
inhibiting a party's right to appoint an arbitrator goes beyond reform to
transform.
6 CONCLUSION
The quantitative approach to deciding challenges based on repeat

appointments has received noticeable support from several deciding bodies
and also the IBA Arbitration Committee. Its absence of legal foundation and
weakness in reasoning are frequently glossed over on the basis that
disqualification merely requires an appearance of bias. I have shown that the
quantitative approach should not be supported from a legal, analytical or
policy perspective, and hope this will quell the unjustified preoccupation
with numbers. There is a saying (commonly attributed to Yogi Berra) that
'anyone who is popular is bound to be disliked'. It is more likely than not
that elite arbitrators become recognized as elite by actually being outstanding,
and we should not let the suspicions of a few jeopardize the very nature of
arbitration.
163 Ibrahim Fadlallah, L'odre public dans les sentences arbitrales 249 Collected Courses 369, 378-379 (Brill
Nijhoff 1994).
161 Jan Paulsson, The Idea of Arbitration 279 (OUP 2013).
16' Bellet Bedjaoui, Des arbitres neuters et non neuters, in Etudes de droit internationalet l'honneur de Pierre Lalive
407 (Helbing & Lichtenhahn 1993).
166 Martin Hunter, Ethics of the InternationalArbitrator, 53 Arb. 219, 223 (1987) ('When I am representing a
client in arbitration, what I am really looking for in a party nominated arbitrator is someone with the
maximum predisposition towards my client, but with the minimum appearance of bias.').
APPENDIX A: STANDARDS GOVERNING DISQUALIFICATION

UNDER NATIONAL LAWS
National Arbitration Laws Provision
Austrian Zivilprozessordnung, 'An arbitrator may be challenged only if

s. 588(2) circumstances exist that give rise to justifi-
able doubts as to his impartiality or
independence.'
Belgian Judicial Code, Article 1686(2) 'An arbitrator may be challenged only if
circumstances exist that give rise to justifi-
able doubts as to his independence or
impartiality.'
English Arbitration Act 1996, 'A party to arbitral proceedings may (upon
section 24(1)(a) notice to the other parties, to the arbitrator
concerned and to any other arbitrator) apply
to the court to remove an arbitra-
tor ... [when] circumstances exist that give
rise to justifiable doubts as to his
impartiality.'
German Zivilprozessordnung, 'An arbitrator may be challenged only if
s. 1036(JJ)(1) circumstances exist that give rise to justifi-
independence.'
Netherlands Code of Civil Procedure, 'An arbitrator may be challenged if circum-
Article 1033(1) stances exist that give rise to justifiable
doubts as to his impartiality or
independence.'
Singapore International Arbitration Act, 'An arbitrator may be challenged only if
section 3(1) (adopting the UNCITRAL circumstances exist that give rise to justifi-
Model Law) able doubts as to his impartiality or
independence.'
Swiss Law on Private International Law, 'An arbitrator may be challenged ... if cir-
Article 180(1)(c) cumstances exist that give rise to justifiable
doubts as to his independence.'
UNCITRAL Model Law, Article 12(2) 'An arbitrator may be challenged only if
independence.'
APPENDIX B: STANDARDS GOVERNING DISQUALIFICATION

UNDER INSTITUTIONAL RULES
Institutional Rules Provision
2013 HKIAC Rules, Article 11.6 'Any arbitrator may be challenged if cir-
cumstances exist that give rise to justifiable
doubts as to the arbitrator's impartiality or
independence.'
2014 LCIA Rules, Article 10.1 'The LCIA Court may revoke any arbitra-
tor's appointment ... if ... circumstances
exist that give rise to justifiable doubts as to
that arbitrator's impartiality or
independence.'
2010 SCC Rules, Article 15(1) 'A party may challenge any arbitrator if cir-
cumstances exist which give rise to justifi-
able doubts as to the arbitrator's impartiality
or independence.'
2013 SIAC Rules, r. 11.1 'Any arbitrator may be challenged if cir-
independence.'
2012 Swiss Rules, Article 10(1) 'Any arbitrator may be challenged if cir-
independence.'
2010 UNCITRAL Rules, Article 12(1) 'Any arbitrator may be challenged if cir-
independence.'
2013 VIAC Rules, Article 20(1) 'An arbitrator may be challenged only if
independence.'

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ments by the same party or counsel (hereafter 'repeat appointments'), 'systemic

Section 2 will identify the two contrasting lines of authorities regarding

The notion of challenging an arbitrator on the basis of repeat appointments is not

appointments as a ground for challenge in the international arbitration commu-

2.1 QUANTITATIVE APPROACH

persistent nature of selecting H as an arbitrator on the part of ZAO Kalinka-Stockmann serves as a

22 2004 IBA Guidelines, ss 3.1.3 and 3.3.7.

2.2 QUALITATIVE APPROACH

In contrast to the quantitative approach, a separate line of authorities have treated

rather than an indication of justifiable doubts about it. As some commentators

3 QUANTITATIVE APPROACH LACKS A LEGAL FOUNDATION

The starting point in addressing which of the two approaches is better is to

39 Ibid., para. 61.

3.1 IBA GUIDELINES ON CONFLICTS OF INTEREST

3.1[a] IBA Guidelines Are Not Legally Binding

Such an interpretation is incorrect because the IBA Guidelines are by their

3.1[b] Orange List Pertains to Disclosure Not Disqualification

so 2014 IBA Guidelines, supra n. 20, at 3.

majority of disputes involving challenges to arbitrators naturally involve the

66 2014 IBA Guidelines, supra n. 20, at 18.

3.2[a] Content of the Justifiable Doubts' Standard

only be made in exceptional circumstances with legitimate causes for challenging

3.2[b] Incompatibility Between Quantitative Approach and Justifiable Doubts' Standard

Although linguistic expressions of uncertainty such as 'justifiable doubts' can be

degree of independence and impartiality required.9 0 Without incorporating the

3.3 ICSID STANDARD

9o Jung Science, supra n. 44, para. 55.

The term 'manifest' has traditionally been interpreted as imposing a 'rela-

4 QUANTITATIVE APPROACH RELIES ON QUESTIONABLE

4.1 DOES THE DESIRE FOR REPEAT APPOINTMENTS CORRUPT?

4.1 [a] Tension Between Duty and Desire

commercial arbitration and international treaty arbitration to be at least 'moderately

With regard to how the self-interest translates to an appearance of bias when

4.1[b] Desire and Duty in Harmony

125 Kapeliuk, supra n. 3, at 294-295.

4.1[c] Dependence Cannot be Inferredfrom Absolute Numbers

Even supposing that an appearance of dependence can plausibly be observed when

If dependence can be inferred from a number, that number should be a

4.2 DOES FAMILIARITY BREED PARTIALITY?

4.2[a] Familiarity, Loyalty and Inequality

135 Franck, supra n. 112, at 79.

exposure effect' exists whereby repeated exposure to a stimulus will engender an

4.2[b] Familiarity Without Friendship Is Fine

(accessed 6 Apr. 2016).

The notion of a 'mere exposure effect' whereby an arbitrator develops

5 QUANTITATIVE APPROACH INTERFERES WITH PARTY

Questions of policy in international arbitration can typically be balanced by the

5.1 AUTONOMY TO AGREE ON STANDARDS

(1 Oct. 2013), r .18(b).

absence of prior agreement of the parties to do so is contrary to the principle of

5.2 AUTONOMY TO APPOINT ARBITRATORS

The ability of a party to appoint an arbitrator has been described as a 'key