In the not-too-distant past, there were only a few individuals acting regularly as arbitrators in international arbitration. Similarly, law firms engaged in international arbitration could be counted on the fingers of one hand. Unsurprisingly, there were a very small number of individuals, generally well-connected, who were called upon to act as arbitrators.
This trend, however, has been reversed by the increase of international trade and the increasing use of alternative dispute resolution by international companies to resolve disputes. With the New York Convention on the Enforcement of Foreign Arbitral Awards of 1958 being ratified by 169 States, recently including the Republic of Iraq on 13 May 2021, enforcement is simplified for disputes involving international business transactions in the most far-flung corners of the world. As the number of international commercial arbitration cases is growing, inexorably, experienced practitioners and more specifically arbitrators are needed.[1]
Pursuant to the well-recognized principle of freedom of choice, parties can agree on the person who will arbitrate their dispute, meaning that most adults of a sound mind can theoretically serve as arbitrators. In practice, however, arbitrators are frequently lawyers, retired judges, or business professionals expert in a particular field. Moreover, even if the parties are free to agree on arbitrators, States and international institutes typically impose restrictions or requirements for individuals to act as arbitrators, some of which are described below.
Becoming an Arbitrator for the International Centre for Settlement of Investment Disputes
The International Centre for Settlement of Investment Disputes (the “ICSID”) proposes a Panel of Arbitrators composed of designees of the ICSID, Contracting States and the Chairman of the Administrative Council. To become a Panel member, applicants need to possess the qualifications specified under Article 14 of the ICSID Convention, which reads as follows:
(1) Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.
(2) The Chairman, in designating persons to serve on the Panels, shall in addition pay due regard to the importance of assuring representation on the Panels of the principal legal systems of the world and of the main forms of economic activity.
Further to the qualifications listed in Article 14 of the ICSID Convention, the ICSID considers that the following attributes are “highly desirable for designees”:[2]
- knowledge of and experience with international investment law;
- knowledge of and experience with public international law;
- experience and expertise in international arbitration or conciliation;
- ability to conduct an arbitration or conciliation and write an arbitral award or report in one or more of the Centre’s official languages (English, French and Spanish);
- availability to accept appointments in cases as of the date of designation;
- availability and willingness to travel for case proceedings.
It shall be noted that arbitrators appointed outside the Panel of Arbitrators must still possess the qualities of a person eligible to serve on it.
Regarding arbitrators appointed under the UNCITRAL Rules, pursuant to Article 6, paragraph 7 of the Rules, “The appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.” In other terms, arbitrators must be independent and impartial.
Becoming an Arbitrator at the International Chamber of Commerce
Regarding the International Chamber of Commerce (the “ICC”), arbitrators may be appointed by the ICC Court directly or upon the proposal of an ICC National Committee. They also may be nominated by claimants, respondents, the parties or co-arbitrators.[3]
Parties have the right to designate arbitrators of their choice. However, the ICC insists on the importance of independence and impartiality of the arbitrators chosen.[4] The Centre proposes to select the right arbitrator for the parties based on its global network. In this regard, the ICC keeps a public database of arbitrators.
The ICC has created the Advanced Arbitration Academy for individuals wishing to become an arbitrator. The Advanced Arbitration Academy is a professional training program allowing participants to acquire strong knowledge of arbitration procedures and techniques on an international level. During the Academy, participants perform tasks that arbitrators normally do. They also follow courses on Case Management, Provisional Remedies and Security for Costs, Evidence, Hearing, Award, Scrutiny, Notification of the Award, Enforcement, etc. The first ICC Advanced Arbitration Academy was created for Central and Eastern Europe in 2014. The comprehensive one-day workshops started on 28 March 2014.[5] In 2016, the ICC Advanced Arbitration Academy was also implemented in Latin America and the MENA region.[6]
Becoming an Arbitrator for the International Centre for Dispute Resolution
To join the Panel of Arbitrators and Mediators of the International Centre for Dispute Resolution (the “ICDR”), applicants must meet or exceed several criteria.[7]
First, regarding Education and Training, candidates need to fulfil the following requirements:
- Minimum of 15 years of senior-level business or professional experience;
- Educational degree(s) and/or professional license(s) appropriate to his/her field of expertise;
- Honors, awards, and citations indicating leadership in his/her field;
- Training and substantial experience in arbitration, mediation, and/or other forms of out-of-court dispute resolution;
- Membership in a professional association(s); and
- Other relevant experience or accomplishments (e.g., published articles).
Second, applicants must be neutral. More specifically, they must be free from bias and prejudice. They shall have the ability to evaluate and apply legal, business or trade principles.
Third, candidates shall present judicial capacity (the ability to manage the hearing process and perform a thorough and impartial evaluation of testimony and other evidence).
Fourth, applicants must be held in the “highest regard by peers for integrity, fairness, and good judgment” and respect “the AAA® Code of Ethics for Arbitrators and/or Standards of Conduct for Mediators”.
Fifth, they must show a willingness to (i) devote time and effort when selected to serve, and (ii) participate in continuing education programs pursuant to ICDR Guidelines.
Finally, applicants shall:
- submit letters of recommendation from at least three professionals in their field;
- submit a personal letter explaining why they should be admitted to the ICDR International Panel of Arbitrators and Mediators;
- submit a copy of their curriculum vitae; and
- complete the ICDR’s Panel Application form.[8]
Becoming an Arbitrator at the Singapore International Arbitration Centre
As is the case for the ICDR and the ICSID, there is a Panel of Arbitrators overseen by the Singapore International Arbitration Centre (the “SIAC”). To be admitted to the Panel, applicants “must demonstrate an appropriate level of expertise and experience in international arbitration and be of good standing and character.”[9]
Applicants must, at a minimum, fulfil the following criteria:[10]
- tertiary education;
- at least 10 years post-qualification experience;
- a fellowship from the Chartered Institute of Arbitrators, Singapore Institute of Arbitrators or any comparable professional arbitration institute;
- experience as an arbitrator in five or more cases;
- completed at least two commercial arbitral awards; and
- be aged between 30 and 75 years.
The admission of individuals to the SIAC Panel of Arbitrators is subject to the “absolute discretion” of the SIAC.[11] To admit or refuse a candidate, the Centre will take into account his/her experience and the actual number of arbitrators on the Panel from the country the candidate is resident.
Paragraph 7 of the Standards for Admission to the SIAC Panel/SIAC IP Panel specifies the necessary steps to submit an application:
If you wish to make an application, please send the completed application form and your curriculum vitae in the attached template highlighting your arbitration experience, together with a non-refundable processing fee of S$535.00 (being S$500 plus 7% Goods and Services Tax (“GST”) which is applicable to both local as well as overseas applicants) to the Registrar, Singapore International Arbitration Centre, 28 Maxwell Road #03-01, Maxwell Chambers Suites, Singapore 069120 or email the application form to panel@siac.org.sg, with payment to follow by post, bank transfer or credit card. Your application may also be accompanied with a covering letter and references (if any).
The application and CV template may be found on the SIAC’s website.[12]
Becoming an Arbitrator for the London Court of International Arbitration
The London Court of International Arbitration (the “LCIA”) possesses a database of arbitrators. Contrary to the ICC, the LCIA’s database is confidential and cannot be accessed by parties. Parties can, however, request a list of potential arbitrators suited to the subject matter of their disputes.
If the parties have not agreed on the arbitrators, as they may do, the LCIA will choose the arbitrator to decide the dispute. If the parties have chosen an arbitrator each, then parties may also agree to decide on a third arbitrator to act as chair or request the Centre to nominate the third arbitrator.
The LCIA does not specify the conditions under which an individual will appear in its database of arbitrators. However, even if the parties can agree to choose arbitrators themselves, the LCIA refuses to appoint an arbitrator who is:[13]
- not impartial or independent from the parties;
- does not have the necessary experience; or
- does not have enough time to devote to the arbitration.
Becoming an Arbitrator at the Beijing International Arbitration Centre
The Beijing International Arbitration Centre (the “BIAC”) also has conditions determining whether a person can apply to become an arbitrator. Applicants must meet the conditions defined under Article 13 of the Arbitration Law of China, which are the followings:[14]
- To have been engaged in arbitration work for at least eight years;
- To have been as a lawyer for at least eight years;
- To have served as a judge for at least eight years;
- To have been engaged in legal research or legal education, possessing a senior professional title; or
- To have acquired the knowledge of law, engaged in the professional work in the field of economy and trade, etc. possessing a senior professional title or have an equivalent professional level.
Applicants must also comply with the Codes of Enhancing Arbitration Efficiency for Arbitrators.[15]
Finally, applicants need to fill out the Application Form for the BAC/BIAC’s Panel of Arbitrators with their CV and send it to the Centre by email or post.
Conclusion
Parties are free to choose their arbitrators. However, all international institutions impose minimum requirements that an arbitrator be independent and impartial.
To become an arbitrator for international institutions, individuals must present the necessary professional expertise and reputation for work in the field of arbitration. To develop their skills, applicants gain experience through education and work experience, which can take many years.
[1] For instance, in 2020, the ICC Court registered a total of 946 new cases.
[2] See https://icsid.worldbank.org/about/arbitrators-conciliators/qualifications
[3] ICC Rules of Arbitration entered into force on 1 January 2021, Articles 11 to 13.
[4] ICC Rules of Arbitration entered into force on 1 January 2021, Article 11.
[5] See https://iccwbo.org/media-wall/news-speeches/continued-success-for-icc-advanced-arbitration-academy/
[6] See https://iccwbo.org/media-wall/news-speeches/develop-your-legal-career-become-an-international-arbitrator/
[7] See https://icdr.org/sites/default/files/document_repository/icdr_panel_application_information_and_form.pdf
[8] ICDR International Arbitrator/Mediator Panel Application Form, pp. 4-5.
[9] Standards for Admission to SIAC Panel/SIAC IP Panel, para 2.
[10] Standards for Admission to SIAC Panel/SIAC IP Panel, para 3.
[11] Standards for Admission to SIAC Panel/SIAC IP Panel, para 4.
[12] SIAC’s application form and CV template.
[13] LCIA Rules, Article 11 – Nomination and Replacement.
[14] Arbitration Law of the People’s Republic of China dated 31 October 1994, Article 13.
[15] Codes of Enhancing Arbitration Efficiency for Arbitrators, Revised and adopted at the 5th Meeting of the Third Session of the Beijing Arbitration Commission on September 16, 2003. Effective as from March 1, 2004.
