International Law Review

International Law Review

The Effect of Repeat Appointment and Double-Hatting on Diversity and Formation of Monopoly in International Arbitrations

Document Type : academic

Authors
Maryam Farsi 1
Hamid reza Oloumi Yazdi 2
1 PHD Candidate of Private Law in Allameh Tabataba'i University, Tehran, Iran
2 Associate Professor of Private law Dept., Faculty of Law and Political Science, Allameh Tabataba'i University, Tehran, Iran
10.22066/cilamag.2024.2016479.2480
Abstract
The nature of international arbitration and the party autonomy in the appointment of arbitrators require selection of the arbitrators from a diverse range of qualified persons, regardless of their nationality, gender and age. However, studies show that the international arbitration is mainly monopolized by white men from developed countries and others have little contribution. The repeated appointments of arbitrators and double-hatting are amongst the most important mechanisms worsening the existing situation, preventing the entry of newcomers and so leading to the formation of a closed circle of international arbitrators. By analyzing the effect of repeated appointments of arbitrators and double-hatting on the diversity of the arbitration community and subsequently on the integrity of proceedings and the legitimacy of arbitration, this article suggests that following the disclosure of the arbitrators’ previous appointments and positions, some limitation should be imposed on the number of appointments and cases one can get involved, either as an arbitrator or as a counsel.
Keywords
International Arbitration
Repeated Appointments of Arbitrators
Double-hatting
Diversity
Integrity of Proceedings
Legitimacy of Arbitration
Monopoly

Subjects

  1. -Books

    1. Beatens, Freya, Identity and Diversity on the International Bench Who is the Judge?, 1st United Kingdom: Oxford University Press, 2020.
    2. Cole, Tony, The roles of psychology in international arbitration, The Netherlands: Kluwer Law International, 2017.
    3. Fach Gómez, Katia. Key Duties of International Investment Arbitrators: A Transnational Study of Legal and Ethical Dilemmas. Switzerland: Springer, 2019.
    4. Paulsson, Jan, The Idea of Arbitration, 1st United Kingdom: Oxford University Press, 2013.

     

    -Articles

    1. Behn, Daniel, Malcolm Langford, and Laura Létourneau-Tremblay, “Empirical Perspectives on Investment Arbitration: What Do We Know? Does It Matter?,” The Journal of World Investment & Trade 21, no. 2-3 (2020).
    2. Bjorklund, Andrea K., Daniel Behn, Susan D. Franck, Chiara Giorgetti, Won Kidane, Arnaud de Nanteuil, and Emilia Onyema, “The Diversity Deficit in International Investment Arbitration,” Journal of World Investment & Trade 21, (2020).
    3. Brodlija, Fahira, “Innovative solutions for an age-old issue: How transparency and data analytic tools can improve diversity in international arbitration,” Journal of Strategic Contracting and Negotiation 5, no. 1-2 (2021).
    4. Franck, Susan, “The Diversity Challenge: Exploring the ‘Invisible College’ of International Arbitration”, Columbia Journal of Transnational Law 53, (2015).
    5. Dias Simões, Fernando, “Hold on to Your Hat! Issue Conflicts in the Investment Court System,” The Law and Practice of International Courts and Tribunals 17, no. 1 (2018).
    6. Dias Simões, Fernando, “Investment Arbitration and the Chimera of an Ideal Adjudicative Community,” The Journal of World Investment and Trade 22, no. 5-6 (2021).
    7. Gaillard, Emmanuel, “Sociology of international arbitration,” Arbitration International 31, no. 1 (2015).
    8. Giorgetti, Chiara, “Who Decide Who Decides in International Investment Arbitration?,” University of Pennsylvania Journal of International Law 35, no. 2 (2013).
    9. Kapeliuk, Daphna, “The Repeat Appointment Factor: Exploring Decision Patterns of Elite Investment Arbitrators”, Cornell Law Review 96, no. 1 (2010).
    10. Langford, Malcolm, Daniel Behn, and Runar Hilleren Lie, “Revolving Door in International Investment Arbitration,” Journal of International Economic Law 20, no. 2 (2017).
    11. Langford, Malcolm, Runar Hilleren Lie, and Daniel Behn, “The Ethics and Empirics of Double Hatting,” SSRN Electronic Journal 6, 7 (2017).
    12. Lévesque, Céline, “Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?,” The Canadian Yearbook of International Law 58, (2021).
    13. Mohit Kumar Tanwar, “Addressing the Inadequacies: A New Multi-Faceted Solution to Double Hatting in ISDS”, Les Law Review 7, no. 1-7 (2021).
    14. Paulsson, Jan, “Ethics, Elitism, Eligibility,” Journal of International Arbitration 14, no. 4 )1997(.
    15. Pilawa, Douglas, “Sifting Through the Arbitrators for the Woman, the Minority, the Newcomer,” Case Western Reserve Journal of International Law 51, no. 1 (2019).
    16. Polonskaya, Ksenia, “Diversity in the Investor-State Arbitration: Intersectionality Must Be a Part of Conversation,” Melbourne Journal of International Law 19, no. 1 (2018).
    17. Poorooye, Avinash, and Ronán Feehily, “Confidentiality and Transparency in International Commercial Arbitration: Finding the Right Balance,” Harvard Negotiation Law Review 22, (2017).
    18. Rock, David, and Heidi Grant, “Why Diverse Teams Are Smarter?,” Harvard Business Review, (2016).
    19. Tacha, Deanell, "Diversity in the Judiciary: A Conversation with Deanell Tacha," Kansas Law Review 59, (2011).
    20. Walsh, Thomas W. and Ruth Teitelbaum, “The LCIA Court Decisions on Challenges to Arbitrators: An Introduction,” Arbitration International 27, no. 3 (2016).
    21. Winkler, Matteo M., and Mikaël Schinazi, “No Longer ‘Pale, Male, and Stale’? Approaching Diversity and Inclusiveness in International Arbitration,” in Liber Amicorum Guillermo Aguilar Álvarez edited by Nigel Blackaby, Michael Reisman, Cecilia Azar, Carlos Dávalos and Luis Alberto Aziz, (2021).

    -Seminar Paper

    1. Govil, Pranay, “Issue of Selection of Seat of Arbitration and Its Implications,” Gujarat Natinal Law University, Available at: https://www.academia.edu/ 31573058/ISSUE_OF_SELECTION_OF_SEAT_OF_ARBITRATION_AND_ITS_IMPLICATIONS, Last accessed on June 30, 2024.

     

    -Reports

    1. International Centre for Settlement of Investment Disputes, ICSID Annual Report, 2023.
    2. International Council for Commercial Arbitration, ICCA Report of Cross- Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings, 2022.
    3. The London Court of International Arbitration, LCIA Annual Casework Report, 2022.

  • Receive Date 25 November 2023
  • Revise Date 01 May 2024
  • Accept Date 28 June 2024