Use of pre-appointment interviews in the appointment of arbitrators

International Commercial Arbitration is generally preferred for resolving disputes between the international commercial organisations because of the advantages such as cost, confidentiality, neutrality, procedural flexibility in the selection of the arbitrators and so on[1]. The selection of the arbitrators is subject to various rules and regulations, especially when they concern multinational and international arbitration. Some arbitrators are appointed by appointing agencies while others are allowed to be appointed by the contending parties. It is in the later issue that the need for pre-appointment interview arises. These pre-appointment interviews of the prospective arbitrators have become a contentious issue and much debated in the Corporate Law circles although some[2] consider them squarely within the fundamental rights of the contending parties, while others denigrate these interviews as “beauty pageants”[3] because the party does not content itself with interviewing one candidate but conducts a long line of them in order to be able to select the one who would be most sympathetic to their cause[4]. This paper evaluates the pros and cons of such pre-appointment interviews.

One of the most important decisions regarding the international commercial arbitrations is the selection of the arbitrators[5]^,[6] unlike in the case of litigations in which they have to accept the judge assigned to hear their case[7]. It is also advantageous to the parties as they are given the freedom to select the arbitrator of their choice, thus giving them more confidence of a fairer decision[8]. When that is the case the parties have to ensure that the arbitrators are selected carefully to find out if they possess the necessary skills and qualities that would lead to the success of the arbitration[9]. Moreover, it is essential to the party to ensure that the arbitrator would consider the case as well as the legal cultures of the contending parties during the hearings and make a fair and impartial award after going into the merits of the case. It has to be remembered in this context that the award could mean the changing hands of substantial amount of money as compensation[10]. To ensure these factors, the parties may feel the need for a pre-appointment interview with the proposed arbitrator. Moreover, the arbitrator may not be known to them and interviewing them would be one way of getting to ‘know’ the person who is to conduct the case on their behalf.

Two of the main qualities that the arbitrators should fundamentally possess are impartiality and independence[11]. In other words, the arbitrators should not be biased towards the appointing party and also be given enough freedom to act according to their views regarding the case in hand. These two qualities or standards are recommended by the most important international arbitration rules bodies such as the UNCITRAL[12] (United Nations Commission on International Trade Law), LCIA[13] (London Court of International Arbitration as well as the International Rules of the AAA[14] (American Arbitration Association). However, the ICC[15] (International Chamber of Commerce) Arbitration Rules specify only independence and assumes that all appointed arbitrators to be unbiased and neutral. This is because, independence can be verified but it is more difficult to assess before the case begins[16].

In order to ensure these two qualities, the parties are allowed in some jurisdictions to interview the prospective arbitrator before their appointment, and not base the criteria for the selection merely on their curriculum vitae, or website and word-of-mouth recommendations[17].

However, there are some reservations regarding the type of information that can be given and asked for at these interviews: for instance, some authorities suggest that the case should not be discussed with the potential arbitrator except in very general terms to avoid creating a biased situation[18]. In fact, it is deemed advisable that the arbitrator should also confine himself to only the general reports so as to maintain his independence and impartiality in the case[19] and should avoid discussing the merits of the case[20]^,[21]. Such information would help in ensuring both the parties that the arbitrator would be acting impartially and independently while conducting and awarding the case. Also, the availability of the arbitrator for the whole duration of the hearing is essential for the smooth conduct of the case. It is view of this issue that almost all authorities agree that the availability of the arbitrator for the duration of the case is to be enquired during the pre-appointment interview[22]^,[23].

The interview held between the appointing party and the arbitrator should not be in any way seen to be secretive or contentious. In order to avoid any such anticipated issues, most authorities agree that in order to maintain the impartiality, the potential arbitrator should be allowed to take notes of the pre-appointment discussions with the party, either by himself or with the help of a student or scribe and make them known to the other party[24]. This would be deemed advisable in order to maintain an unbiased and neutral position in the dispute and avoid future challenges of disqualification. Moreover, this would also serve to keep the conversation within the admissible boundaries and subjects and thus keep a check on those to seek to diverge from the allowed items of discussions. Authorities such as the LCIA deem it suitable that all communication expressed during the interview should be written out and communicated to the other party through the Registrar[25]. In this context, it may be pertinent to mention that in the case of domestic arbitration in the United States, Canon X arbitrators or party appointed arbitrators are allowed to communicate with the appointing party representatives as long as these communications are revealed to the other party, presumably including the merits, so long as the fact that such communications took place is disclosed to the other party. They are also not expected to maintain complete neutrality, in the sense that they are allowed to allow touch upon the merits of the case during the interview as long as they follow “all of the ethical obligations prescribed by the Code except those from which they are specifically excused”[26].

What could then be the items that can be safely discussed at the pre-appointment interviews? Most authorities agree that the main subjects that are considered suitable and useful to both the party as well as the arbitrator would be regarding the qualifications, experience and the availability of the arbitrator[27]. The willingness of the arbitrator to be interviewed by the appointing party is also a contentious question. For instance, some arbitrators may refuse to be interviewed to avoid any future challenges, while others may agree to be interviewed in certain special circumstances such as when dealing with parties from unfamiliar cultures or countries[28].

Of course, the arbitrator also has to be made aware of the essential details regarding the identities of the contending parties, and others involved in the process such as the counsel and witnesses; the time allotment as well as the duration of the hearings; and the general nature of the case. The arbitrator in turn must offer testimonials regarding his qualifications and experience and any information that could lead to jeopardising the hearing with regard to independence and/or impartiality of the arbitrator[29]. Sticking to these matters in the pre-appointment communication could help to decide the competence and suitability of the arbitrator to the case in question and also ensure the transparency in the appointment of the arbitrator so as to be acceptable to the other party/parties.

Experienced arbitrators would always select an official location for the conduct of the interview, and avoid spending a lot of time in company with the appointing party. These could both be challenged and form the basis for disqualification of the arbitrator[30]. For instance, Moreover, the appointing parties would also be satisfied that there would be at least one ‘known’ voice on the panel, however impartial and independent he may be [31] and could prove to be somewhat sympathetic and careful in listening to the points in the case[32].