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KluwerArbitration c.::_ers Kluwer I Kluwer Lave International

The Rising Issue of 'Repeat Arbitrators': A

Call for Clarification

Fatima-Zahra Slaoui Author

Abstract Fatima-Zahra Slaoui

Examples of repeat appointments have appeared in case law since Source

the launch of the IBA Guidelines in 2004 created some debate. To
Fatima-Zahra Slaoui,
date, this has not triggered any proposed responses. This article
The Rising Issue of
argues that 'repeated appointments' and 'repeat arbitrators' require
'Repeat Arbitrators': A
more attention and, to begin with, proper definitions. The lack of
Call for Clarification,
comprehensive definitions reveals that this area is relatively
Arbitration International,
unresearched and, as a consequence, there is little guidance for
(Kluwer Law
arbitrators or awareness by parties as regards the disclosure
International 2009
requirements in circumstances of repetition. Providing a definition,
Volume 25 Issue 1) pp.
highlighting the issues surrounding this area and providing some
103 119
suggestions, in an era of transparency in international commercial
arbitration, are thus the main purposes of this article.

The increase of challenges to arbitrators is perhaps a reflection of

the ever-growing community of international arbitration users. To
those new-corners to the 'Club' who might have yet to gain full
confidence in the arbitral process, the practice of repeat
appointments by parties or counsel may seem unusual. The
appointment of arbitrators with known views on certain issues might
also raise an uninitiated eyebrow.

The issue of 'Repeat Arbitrators' and the author's call for various
clarifications are the timely focus of this Gillis Wetter Prize
submission for which the author was awarded the Runner Up prize.
Highlighting the potential problems the practice can create through a
comparative review of case law from important arbitral jurisdictions
and soft law codes of practice, Fatima-Zahra Slaoui brings to our
attention the possible consequences of failing to address the issue
and proposes insightful reflections on the way forward.

page LISZ,
FOR INTERNATIONAL arbitrators, modern practice has raised
surprisingly few ethical problems beyond the increasingly awkward
requirement of disclosure on appointment and challenges. °'

Challenges to arbitrators are indeed increasing. This disillusioning

fact is a concern for the entire arbitration community. Echoing this
concern, an important and revolutionary step towards the limitation
of challenges has been taken in 2007 by the London Court of

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International Arbitration (LCIA). The institution's intention is to be a

pioneer in the effort of publication of the reasons for all challenges
and working towards transparency. (21

The concern of disclosure on appointment, in spite of being

recognised as 'awkward', has not received equal attention." Yet the
constitution of the arbitral tribunal is of utmost importance for the
whole arbitration. Issues of conflicts of interest are a danger
threatening the arbitration procedure as well as the award. That is
why there are fundamental safeguards for the arbitration process.
These safeguards are the twin requirements of impartiality and
independence, and their corollary is the duty to disclose. Efforts
have been undertaken to find ways to clarify what should be
disclosed. However, countless uncertainties and grey areas remain.

An emerging type of conflict of interest is repeated appointments

creating a new category of arbitrators: 'repeat arbitrators'. 'Repeat
arbitrators' will be defined in this article as arbitrators that have been
previously appointed by the same party or counsel, or concurrent
mandates in connected or related proceedings. Another issue that
has recently arisen is that of Issue-based conflicts' resulting from
arbitrators having taken a view or a position on an issue in the
arbitration. While these issues call for analysis as well, 'repeat
arbitrators' will be the focus of the present article because it has not
been acknowledged to the same extent. (4/ Arbitrators struggle with a
difficult 'disclosure dilemma' (-" upon the acceptance of their mandate
— they have a choice. On the one hand, an arbitrator may disclose
all circumstances and risk a challenge from the outset; on the other
hand, he or she may fail to disclose circumstances that the arbitrator
deems not to page "104" affect impartiality, for fear of over-
disclosure. The fear of over-disclosure is legitimate. It might result in
the information being used for obstruction by opposing the
appointment, which would impede the arbitration from going forward.
Alternatively, it is a means to challenge the arbitral award, based on
an irregular constitution of the arbitral tribunal. The disclosure
dilemma is particularly striking in the context of repeat arbitrators
because of the legal gap.

The topic is dealt with through the perspective of disclosure,

because it is in this context that 'repeated appointment' becomes
relevant as an inquiry. Because repetition is not considered a
disqualifying factor per se, (61 it is more interesting to discuss whether
the failure to disclose such circumstance warrants disqualification.
The aim is to encourage an international consensus on how
repeated appointments should be considered and dealt with, since
there seems to be a need for such a consensus among arbitrators,
parties and counsel. If light is shed on the topic and due attention is
given to it, some of the current complications of challenges to
arbitrators and their awards could be limited.

With this purpose in mind, it is useful to make a brief comment about

the existing instrument at this introductory stage. The IBA
Guidelines on Conflicts of Interest in International Arbitration were
released in July 2004 and deal with the situation of repeated
"

appointments in the orange list (Rule 3.1.3: 'the arbitrator has within
the past three years been appointed on two or more occasions by

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one of the parties or an affiliate of one of the parties'). The orange

list requires that facts and circumstances which from a reasonable
third person's point of view give rise to justifiable doubts as to the
arbitrator's impartiality and independence must be disclosed by the
arbitrator. He/she can only accept appointment if within 30 days the
parties did not object to such appointment. The Guidelines do
indicate an exception that is often forgotten. For specialised areas of
arbitration, maritime or commodities arbitration are cited as
examples. The Guidelines indicate that if it is the custom and
practice for parties frequently to appoint the same arbitrator in
different cases, no disclosure of this fact is required where all the
parties should be familiar with such a practice'. (°, Although the Rule
page "105" and the footnote cover the most basic situation of
repeated appointments, the Guidelines do not deal with some
scenarios that are becoming more frequent. It is acknowledged that
the Guidelines do not purport to be exhaustive, yet repeated
appointments should be more extensively covered in order for the
arbitrator to find guidance for the most recurrent situations or,
alternatively, the existing Rule could be adjusted to be broader. The
specialised areas mentioned could also be broadened to
encompass sports arbitration °°' and reinsurance.

The whole scheme must be applauded for the debate it has awoken
and the light it has shed on crucial disclosure issues. In spite of
some scepticism as regards their true usefulness, the effort made by
the IBA Guidelines is a step in the direction of transparency and
balance in the disclosure. r " ) This first step can be followed by, on
the one hand, refinement and other measures by institutions and
parties; and, on the other hand, by more vigilant monitoring of
repeated appointments by institutions and barring bias that arises
from numerous appointments. Parties also have a powerful role that
consists in selecting wisely. As it stands, parties are not well-
informed about the impact of their influence in the selection process.
Currently, whom they seek is determined by reputation, ( '2/ but their
search could perhaps be enriched by research as regards potential
conflicts of interest and by putting their trust in aspiring arbitrators.
Discussing a topic that is acknowledged to be one of the unclear
areas regarding disclosure and where the dilemma for arbitrators is
the most striking, a didactic approach is the most appropriate.
Particular care must be devoted to definitions of terms and concepts
before the scenarios are laid out. The pivotal question is why
repeated appointments need attention from the arbitration
community? It is intended that the following four simple questions
set out in this article will revolve around this pivotal question,
concentrically, each providing a step toward the core of the subject
and the issues that arise from it:

• First, why should repeated appointments be disclosed? The

provisions of the IBA Guidelines do not answer this query and this
issue should thus be clarified.
• Secondly, who are repeat arbitrators? There is a legal lacuna in
this area, consequently 'repeat arbitrators' must be defined. They
are to be distinguished from arbitrators acting in connected
arbitrations that are also subject to the repetition factor but where
the problems are closer to Issue-based conflicts'. page "106"

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• Thirdly, when do repeated appointments require disclosure?

Through observations of French and Swedish case law it is
attempted to draw the contours of when repeated appointments
warrant disclosure.
• Fourthly, what consequences follow the failure to disclose? When
failure to disclose may raise suspicions as to the arbitrator, which
in turn constitutes disqualifying bias, putting the arbitrator at risk
of personal liability, is a complex matter to determine.

L To Disclose or not to Disclose Repetition: That is the

Question

To this Shakespearian question, an answer a balance — may be

found in a 'pro-disclosure' effort because the consequences of non-
disclosure (the disqualification of the arbitrator or the setting aside of
the award) are severe and damaging to arbitration. Either situation
creates delays and costs in the proceedings and therefore
undermines other advantages of arbitration such as finality and
expediency, and even confidentiality in the event the matter reaches
national courts. Arguably thus, the considerations that arbitrators
would be endlessly disqualified and that they would fear accepting
mandates is of lesser weight compared to the serious consequences
resulting from the failure to disclose. The argument that disclosure
would undermine confidentiality is not of enough weight either in the
balancing of interests, because disclosure of previous appointments
is an objective fact to disclose and the arbitrators remains bound by
confidentiality for the rest.

The immediate question is: why should an arbitrator disclose

repeated appointments? Conversely, should the arbitrator be able to
exercise his/her discretion and exclude disclosure of circumstances
he/she deems not to affect his/her independence and impartiality?
What arbitrators actually disclose is generally highly discretionary.
If the arbitrator were to disclose previous appointments by the
same party, the fear is that it would be easy for the opposing party,
motivated by a desire to obstruct, to have the arbitrator removed on
this basis. This is, however, more disturbing if the party learns about
it during the proceedings or after the award and uses the
undisclosed repeated appointment as a ground for challenge or
setting aside. The rising number of challenges is an indication that
parties are finding more grounds for obstruction. (14) A supplementary
reason is that the arbitration community is growing both in terms
page "107" of users and arbitrators. These 'newcomers', as well
as the more experienced players, would benefit from more
guidance.

Contrary to challenges for improper conduct during the proceedings,

challenges for conflicts of interest easily identifiable at an early stage
can be avoided. Regulating the disclosure requirements is the most
obvious means to avoid them. While this may not be the ideal
solution for all conflicts, for repeated appointments this is an
advisable course. Repetition is a factor that is easily verifiable, if the
disclosure requirements are specified.

In practice, once an arbitrator has run a routine 'conflict check', as it

is his/her duty to do before accepting a mandate, the arbitrator is

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faced with a decision on what to include in the acceptance letter or

in the forms provided by the institution. Clay criticizes these forms as
being a way for the arbitration community to preserve itself, ° 5)
because there is no consensus on what they exactly should contain.
He therefore comments on the consequences of a possible
extension of the disclosure requirement. He sees that there are two
parameters that come into play in declaration of independence
forms. The first is the nature of the connection to be disclosed. °''')
The second parameter concerns the persons to take into
consideration for these connections. The query is legitimate and
practical: if the appointor is not the same party or a company from
the same group of companies but the same counsel or counsel from
the same law firm, should that be judged on the same premises?
The IBA Guidelines only mention the same 'party' and not 'counsel'.
It is obvious that if the same counsel systematically appoints the
same arbitrator, it does not affect the parties' rights to appoint. What
is objectionable is therefore the fact that the repeated appointments
may affect the arbitrator's independence in the sense that he feels a
certain allegiance to the party whose counsel appointed him/her.
Clay submits that these ties are as important, if not more, since the
appointors are more often the counsel than the parties themselves
and arbitrators often act as counsel as well. He admits there might
be a rational explanation to a systematic appointment: 'arbitration
being founded on trust, the link between an arbitrator and a counsel
is not suspicious per se. But shouldn't the parties be informed?'."
The way arbitration has evolved today, the connection between
counsel and an arbitrator may influence the arbitrator to a higher
degree in practice than any connection with the party itself. The
basic problem is the same, since an arbitrator who is systematically
appointed by the same counsel is tempted by the same benefits and
expectations of lucrative reappointments as if it were the same
page "108" party. Clay believes that the refusal to include these
types of connections into the list of connections to disclose is also
based on the fact that an extension would widen the pool of potential
arbitrators, an evolution that arbitrators are against because they are
protectionists. Such an argument defeats the oft-cited argument of
the restriction of the pool of available arbitrators, by contradicting it
completely. Disclosure would leave leeway for new arbitrators to
enter the scene and defeat the reluctance of the established
arbitrators to let them in. The issue of repeat arbitrators essentially
concerns established arbitrators, which should be lifted to the public
eye as a concept.

II. Repeat Arbitrators: Definition of a Concept

Interesting case law solutions have arisen in France and Sweden,

where two leading arbitration institutions have their headquarters,
namely the International Court of Arbitration of the International
Chamber of Commerce in Paris and the Arbitration Institute of the
Stockholm Chamber of Commerce in Stockholm. These solutions
bring some clarity towards the definition of a concept of repeat
arbitrators.

The expression 'reputation is repetition' is partly fallacious because

the repetition does not necessarily amount to reputation even if it

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can help to build one. (18) Apart from the classic repetition of
appointment of one and the same arbitrator, another type of
repetition can be envisaged: actual repetition of the appointment of
the same arbitrator by the same party or repetition as regards the
subject matter, e.g. the same arbitrator (or the same three-member
tribunal) is appointed for related or connected arbitrations. 'Repeat
players' is a term that has been used in the United States in
alternative dispute resolution contexts ( ' 9' and in the context of ICSID
arbitrations. (2°)

'Repeat arbitrators' is a term that has entered the international

commercial arbitration jargon, through the concept of repeat
appointments. 211 The term refers to situations in which the same
party (A) or companies belonging to the same group of companies
as the party appoint the same arbitrator (X) in several arbitrations.
A similar situation is found when the same counsel regularly
122

appoints the same arbitrator for different, but often similar, cases.

page '109"

The ICC has only addressed this issue occasionally. At first blush,
prior appointments by the same party do not seem to raise any
particular problems, to the extent that party autonomy allows them
the freedom of choice of 'their' arbitrator and exercise of their
fundamental right to appoint. Derains and Schwartz explain that the
deeper concern lies partly in an intellectual loyalty and a personal
financial interest in being re-appointed. (24) Intellectual allegiance is a
natural phenomenon, yet it is not to be excluded that a fair-minded
and experienced arbitrator can distinguish cases and not necessarily
come to the same finding in different circumstances. The ICC
Court applies the subjective test of 'in the eyes of the parties' and
'the Court has so far been reluctant to presume that the
independence of an arbitrator is necessarily eroded by such
repeated appointments'. (2G) However, the Court (as well as the
National Committees) remains cautious in this regard.

It is interesting to note that independence in its true definition

indicates an absence of connection with a party. However, through
the objective factor of reappointment, it may be considered that
there is no longer independence in the mind of the arbitrator, i.e.
absence of bias. Thus, the independence concept turns into
impartiality, which shows how interrelated these concepts are. While
repeat arbitrators do not necessarily lack independence and their
failure to disclose is an aggravating factor, arbitrators serving in
connected arbitrations run a far greater risk of being influenced by
the information they acquire. They are sometimes considered to
prejudge the case and to become biased. But when does repetition
create a risk of prejudgment?

Ill. Repeated Appointments: Contours of their Disclosure

What kind of repetition affects impartiality? Repetition per se?

Systematic appointments? Several appointments affecting the
arbitrator's income significantly? Repeated appointments constitute

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a risk for the arbitrator to be considered biased, but the fundamental

question is: at what frequency and under what circumstances does
that risk turn into disqualifying bias? Swedish and French case law
contain some solutions from which some common conclusions may
be drawn. However, drawing the contours of what constitutes
'repeated appointments' will help to identify the circumstances and
thereby to avoid failing to disclose them.

page ''110"

a. Swedish Case Law: Inconsistencies Between Institutional

and Ad Hoc Arbitration

The general rule in the Swedish Arbitration Act (section 8) is that an

arbitrator must be impartial. Repeated appointments are not
included among the four circumstances listed as presumptions of
disqualification. (2 ') However, as a result of reappointment, the
arbitrator may begin to expect to be reappointed by the same party
and consequently expect regular fees (a benefit). Two inconsistent
solutions in an arbitration under the SCC Rules (28) and an ad hoc
case (29) have been analysed in parallel by Wallin.

In both cases, the arbitrators disclosed their previous appointments

further to the express questioning of the party (B) that had not
appointed them. 2" The institutional arbitrator (X) disclosed that he
had within a time period of two years been appointed eight times by
the appointing party (A) (five out of these eight were ongoing) and
six times by companies in A's group. The ad hoc arbitrator (Y)
disclosed that in almost 10 years he had been appointed 10 times
and that half of them were ongoing. (3'; This was considered
insufficient by the ad hoc tribunal, (33 and subsequently by the court,
whereas the SCC Institute sustained the challenge and terminated
the arbitrator's mandate. Since SCC Institute decisions are
unmotivated and final, it is difficult to determine if the SCC Institute's
reasoning included an assessment as to the number of arbitrations
or the stage they had reached. (34) Cases like this show the need for
institutions to publish reasoned decisions. It is most probable that
the SCC Institute adopted a more cautious approach, given that as
an institution it would be aware of the standards of 'best practice' it
sets.

The appointing parties or their counsel in both cases presented

arguments about specialisation and expertise. In the SCC case, the
appointing party rejected having any relation to the arbitrator and
emphasised that it appointed him page "1 I I " because of his
expertise in the area. The appointing counsel's argument in the ad
hoc arbitration was based on the specialisation of the arbitrator's law
firm, which was the market leader within that area of the law, and
that the number of times he had been appointed was not such as to
call into question his impartiality. This argument convinced the court
because it noted the importance of the availability of experienced
lawyers to serve as arbitrators and that the nature of the matter was
that some arbitrators, particularly if they were specialists, were likely
to be appointed often. The court found that 10 appointments in 10
years was an insufficient ground for challenge.

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The third and most recent case reached the Svea Court of Appeals.
This case was a challenge to the award based on the
disqualification of one arbitrator of the panel. (''' ) The Swedish
claimant relied on the requirement of the arbitrator's duty to disclose
such circumstances when accepting the appointment in the 5CC
Rules. The claimant asserted that the failure called into question the
arbitrator's impartiality and that it would have objected if the
information had been disclosed. The respondent contested the
assertions and stated that the arbitrator was 'one of the most
respected and experienced arbitrators in Russia'. C17) Further, the
respondent contested that there was (neither in the SCC nor the ICC
Rules) any duty to disclose having previously received an
appointment as an arbitrator by a company in the same group as a
party. ' 3) This argument is direct proof of the need for more clarity as
to the extent of the duty of disclosure. If, in the future, arbitration
institutions as well as the IBA Guidelines acknowledge and provide
for previous appointments as a part of the duty of disclosure, this
type of imprecise case law could be avoided. Moreover, the
respondent's argument seems very weak and is based partly on
argumentation that lacks relevance as to the grounds for challenge
raised by the claimant. In the case at hand, it is noteworthy that the
award was an SCC award rendered on 30 May 2002 and that the
award challenged in the present case was issued on 19 March
2004, i.e. less than two years later. Such a circumstance should
have been disclosed under the orange list of the IBA Guidelines
section 3.1.1. In sum, if the arbitrator has consulted the IBA
Guidelines this would have been clear guidance to disclose the
circumstance at the time he forwarded his forms to the SCC
Institute.

page "1 12"

The court first considered that it 'would have been appropriate for
the arbitrator to disclose the circumstances'. However, it ruled on the
issue of trust: the failure was not such to prevent him from serving
as an arbitrator and the other matters put forward by the claimant
did not lead to the conclusion that he was disqualified. The court
thereby failed to give a proper rationale for its decision and does not
provide for more guidance than the 5CC Institute. French case law
provides some more guidance as it requires a further connection in
addition to the repetition as such.

b. French Case Law: Disclosure of Repeat Appointments if

there is a Further Connection

A notable peculiarity is that the challenging party in the Swedish

cases of 2004 used French cases in their arguments. It is interesting
to note that foreign legal solutions were used because of the lack of
definition in Sweden at the time.

In one relevant case, the Paris Court of Appeal has decided that the
fact that a franchisor had appointed the same arbitrator in three
arbitrations against franchisee companies was not sufficient to call
into question his independence and impartiality. °9 The court held
that despite the repetition, the arbitrator in question did not have a

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'monopoly of appointment'. Therefore having participated in similar

arbitrations was not deemed disqualifying. There is thus no business
relationship created here. This decision was reversed but on a legal
basis of contradiction of motives, so it is difficult to draw a rule from
the case aside from that. The Cour de Cessation found that the
Court of Appeal had only found a failure to disclose and not a lack of
independence and impartiality. (4u) In France, the mere failure to
disclose does not lead to automatic disqualification, regardless of
the seriousness of the undisclosed circumstance. (41)

A French case which has been frequently commented upon, the

Fremarc case, 12i sums up three main obligations within the duty of
disclosure. First, the arbitrator has a duty to disclose any
circumstance affecting his judgment and that could in the eyes (or
mind, as the French word is 'esprit') of the parties create a
reasonable doubt as to the independence and impartiality of the
arbitrator. Secondly, the duty of disclosure is meant to enable the
parties to exercise their right to challenge. Finally, the duty of
disclosure is evaluated according to the notoriety of the situation at
hand and its effect on the arbitrator's judgment.

page "113"

More clarity on these requirements can be found in the Serf case

where the circumstances were deemed to be such as to have
'affected [the arbitrator's] judgment' or there must be 'a definite risk
to rule against one party'. (43' Thus, in French case law, a real impact
and a correlation between the objective fact of the repetition and the
subjective consequences on the arbitrator's mind are required to
retain a breach of the duty to disclose. However, are there any
common teachings to be found?

c. Common Teachings?

The case law in both jurisdictions has generated more questions

than answers since the different scenarios provide for more enquires
for legal scholars and the arbitration community to define and thus
confine by setting some boundaries. The question is which
boundaries can be envisaged while still keeping the flexibility that
arbitration needs? In other words, what is the determining number of
appointments after which an arbitrator can be considered to lack
impartiality and that thus warrants disclosure?

Setting a strict limit on repetition would assist in classifying situations

where an arbitrator must be prudent as regards disclosure of
previous appointments. Is it a number that can be established as a
percentage? By a yearly evaluation? On a revenue basis? There is
no straightforward answer, particularly if the flexibility of arbitration is
to be preserved. The IBA Guidelines contain their own cap: a
number of appointments over a set period of years, more specifically
'at least twice in three years' (Rule 3.3.7). Following this rule, the
arbitrator is advised to disclose this circumstance, which is waivable
by the parties. Legal scholars have noted that it is not the number
but the proportion of the income of the arbitrator that should be the
determining factor. One agrees to that proposition to the extent
that it should be a significant portion of the arbitrator's income for

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his/her independence to be 'tainted by the wish to receive future

appointments'. °'-') page "114" However, the considerations
beyond the number of appointments are not a practical solution for
the guidance of arbitrators. Those factors should rather come into
consideration when evaluating whether the arbitrator should have
disclosed and whether that failure constitutes a lack of
independence and impartiality.

The present lack of guidance resulting from the absence of

reasoned decisions creates a situation of legal uncertainty as the
conclusions to be drawn are much too general. °GI Wallin concludes
that as a rule of thumb, the same arbitrator should not be nominated
by the same party more than once a year. According to Swedish
case law as it stands, there is thus a risk that an arbitrator that has
been appointed by the same party or the same law firm in several
cases will be declared biased and a party must consequently be
restrictive in appointing the same arbitrator in several arbitrations. (47)
Caution of this kind is wise but a further element in addition to
annual appointment is advisable. French case law has adopted this
approach.

In France, two appointments can technically be considered a

repetition, but as Henry notes a couple of appointments cannot be
considered a determining factor unless there is a further connection
justifying doubts about the impartiality. Such further connection
could arguably be the percentage or importance of the revenue that
the arbitrator receives for the repeated appointments in relation to
his/her overall activity as an arbitrator. °8) The Paris Court of Appeal
seems to have changed its standard from a subjective one (a risk of
bias test) to an objective one (the repeated character of the
449
appointments). Further to the Serf case, what must be disclosed
is limited to what may affect the arbitrator's independence and
impartiality. There is nevertheless no guidance as to what
information affecting independence and impartiality might concretely
be, so the fact that the Serf company was aware of some of the
repeated appointments should a fortiori be a reason to disclose the
remainder. A failure to disclose all repeated appointments can, thus,
be a reason for increased suspicion of a lack of independence and
impartiality.

In both legal systems, the scholars are unanimous in holding that a

couple of appointments are not per se sufficient to disqualify the
arbitrator, as long as the arbitrator discloses them. 15°) This is mainly
because of the fact that trust is the very basis of arbitration: 'an
arbitrator should at an early stage account for page
"115" appointments that from a party's perspective can reduce
reliance on his/her independence and impartiality even if the
arbitrator considers him/herself independent and impartial. An open
statement will strengthen the trust in the arbitrator and lower the risk
for objections at a later stage or challenge of a future award.' ''' ) The
trust element was expressly brought up by the Paris Court of
Appeals in the Mytilineos case. Additionally, the disclosure and
transparency have the effect of tabula rasa. Should any issue arise
at a later stage, it would at least not be traced back to a
questionable foundation upon which the whole arbitration rests.

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Limitation standards, such as the case law has already indicated

and scholars seem to agree with, should formally be set up. For
instance, French case law seems to value the 'systematic' character
of the appointments. Henry writes that the repetition should show a
'courant d'affaires', i.e. a business relation, but it cannot be indirect.
In the Serf case, there was the systematic nature of the
appointments, their frequency and regularity over a long period of
time, and identical contracts containing the clause with the
nomination of the arbitrator. The failure to disclose itself has also
been a determining factor. One might even call it a negative
inference (which arguably should lead to a shift of the burden of
proof). 33 The question is then whether the arbitrators should
disclose these repeated appointments. The Fremarc case made the
reason for the duty of disclosure perfectly clear: it is because it
ensures that the parties can exercise their right to appoint in an
informed manner. is4) The reasoning, Gaillard notes, is in line with the
IBA Guidelines that distinguish between the subjective criteria of
evaluation of the duty of disclosure and the objective criteria of
evaluation of independence and impartiality in the context of
challenge. r'5) This distinction is crucial to understand the issue of
repeated appointments. It lies in the different tests applied at these
two stages: at the appointment stage it is subjective but it becomes
objective later on when a party becomes aware of a circumstance
that was not disclosed and the arbitrator is consequently challenged.

Swedish case law is less clear and only mentions 'further

circumstances' — a quite flexible concept. The two decisions from
2004 are a cause for concern, because of the discrepancy between
them. In the same circumstances, an arbitrator could be considered
biased in the SCC procedure and unbiased if a court rules on an ad
hoc arbitration. This may be explained by the fact that the Swedish
Arbitration Act, as the national arbitration statute, provides for a
page "116" minimum standard. The SCC Rules, as institutional
rules with a wider perspective, aspire to a higher standard for issues
of disclosure, as a guarantee to the parties that choose them. (56 The
determination of what constitutes repeated appointment should not
be systematic. The determination should rather be evaluated in the
given context, (57 Objective circumstances, perhaps those aimed at
in the Swedish decisions, should be taken into account. In any
event, as Wallin and Mild note, the assessment of arbitrator's
impartiality should be made from an objective point of view and
therefore 'irrespective of the arbitrator's professional background
and should not be lowered in cases where the reason is not known
until the award has been made'. (581 More guidance regarding
conflicts of interest was expected from a case that was pending
before the Supreme Court but commentators have concluded that
the case has merely confirmed that arbitrator impartiality is
measured objectively and according to a high standard. ("'

In all jurisdictions, a moderating factor should be the arbitrator's

specialisation (e.g., in shipping, commodity trades, specialised
classes of reinsurance, etc.). Arbitrators are commercial men in
regular business contact with users of those arbitrations. One of
the advantages of arbitration is that arbitrators are chosen because

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of their expertise in a certain area of the law or trade, possibly

combined with language skills or a certain nationality. The pool of
available arbitrators is thus by nature restricted. In the Mytilineos
case, the rare profile of the arbitrator repeatedly appointed made
the court consider that the number of appointments was not
excessive. In this case, the arbitrator was a native speaker of a
minority language (Romanian). The fact that his profile was highly
specialised was, thus, undeniable. The advantage of expertise
should not be defeated by repeated nominations because they are
inevitable. Specialised arbitrators should only be considered to show
justifiable doubts as to their independence and impartiality if it can
be shown that the repetition is systematic so as to create an
allegiance resulting from a business relationship.

What remains an open question is whether the failure to disclose

prior appointments would be an independent cause for
disqualification. The position taken in this article is that it is not a
disqualifying cause, but rather an aggravating factor in the
evaluation of a challenge one might even call it a type of adverse
inference.

page "1 1 7"

IV. Failure to Disclose Repetition: Serious Consequences

In light of the common confusion of considering disclosure

requirements in direct relation to the grounds for challenge, it is
important to stress, as the IBA Guidelines wisely do, that disclosure
will not automatically lead to a successful challenge of an arbitrator.
It is a mere measure of prevention through transparency.
Challenges can be predicted to decrease if early disclosure
becomes routine and transparency prevails in the area of repeated
appointments. In this fashion, only arbitrators that meet the approval
of both parties will safely obtain mandates. The arbitrators that have
disclosed previous appointments and to whom a party objects will be
sifted out. The counter-argument that arbitrators mention is that they
have the ability to determine themselves if their independence and
impartiality would be affected by the repeated mandates. It is an
argument of integrity and most arbitrators claim they would
voluntarily decline or nobly step down if they fear that their
independence and impartiality might be affected. Further, arbitrators
contend that courts and institutions can then play the regulatory and
sanctioning role in situations of failure to disclose, by keeping strict
standards of what is acceptable to withhold and what should be
disclosed. However, should it not remain the prerogative of the
parties to determine what they deem to be reprehensible? (6

The tests for disclosure and the test for challenges are purposely
designed not to match. (6'3) While early disclosure should be
encouraged and should be examined subjectively, in the eyes of the
parties, challenges will be examined objectively, regardless of the
point in the proceedings at which they are brought.

Although failure to disclose repeated appointments raises suspicion,

such fact should not per se lead to disqualification. It should rather
be a factor of aggravation in the review of the arbitrator's

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independence and impartiality. In an era where arbitrators fear to be

held financially liable for breach of their duty to disclose conflicts of
interest, arbitrators should bear this in mind. Under Swedish law, the
arbitrator is responsible for reimbursing costs that would not have
arisen if the duty of disclosure had been fulfilled; the extra costs of
replacement of the arbitrator may also be born by the 'reckless'
arbitrator. 64) In Finland C''3) and in France, "} arbitrators have recently
been held contractually liable for the failure to disclose their
relationship of consultants to one of the parties.

page "118"

V. Conclusion

Arbitration is similar to a construction where the foundation is the

arbitral tribunal, the result of the construction is the arbitral award
and the foremen are the parties. Without a firm basis and a solid
foundation, the whole construction falls, either by the foundation
losing one of its pillars and reconstruction being needed (challenge
and replacement of the arbitrator), or through the deconstruction of
the entire construction (setting aside of the award). The importance
of the duty of disclosure becomes quite clear as it is the
'backbone' (or the French architectural term 'cle de voote) that
holds together the foundation that is the arbitral tribunal. Repeated
appointments should expressly be included in this duty in order for
the arbitration to begin from a clean slate. What may have slipped
through the floodgates of disclosure (the subjective disclosure test)
can be regulated a posteriori by an examination of the effect of
failing to disclose numerous appointments on independence and
impartiality (the objective disqualification test). This article has
suggested that disclosure could help reduce to a minimum the
residue of undisclosed repeated appointments. This, in turn, limits
challenges of arbitrators and can thus, in conjunction with the
publication of reasoned awards, contribute to upholding some of the
main advantages of arbitration: flexibility, finality, expediency and,
particularly, the choice of the tribunal. page "119"

Fatima-Zahra Slaoui, LL.M (International Commercial Arbitration,

University of Stockholm) is a member of Freshfield Bruckhaus
❑ eringer LLP's Knowledge Management Section. She can be
contacted by e-mail at fatima-zahra.slaoui@freshfields.com . This
article is published as submitted in September 2007 with some
updating amendments only.

Partner, International Arbitration, Reed Smith, London, Co-Chair of

the Young International Arbitration Group (YIAG) of the LCIA.

V.V. Veeder, Is There any Need for a Code of Ethics for

International Commercial Arbitrators?', Les Arbitres lnternationaux
Conference, Centre Francais de Droit Compare, 4 February 2005, in
(2005) Soc. Leg. Comp. 187.

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2See, for a comprehensive explanation of the considerations

behind the decision of the LCIA Court, G. Nicholas and C.
Partasides, 'LCIA Court Decisions on Challenges to Arbitrators: a
Proposal to Publish' in (2007) 23(1) Arb Int'l 1.
3 After the submission of this article to the Gillis Wetter Memorial
Prize, the topic of independence and impartiality, including the duty
to disclose, received renewed attention as demonstrated by inter
alia two special supplements: Special Supplement to the ICC
Bulletin, Independence of Arbitrators (ICC Publication No. 690,
2008), and special issue on Arbitrator Bias in (2008) 5(4)
Transnational Dispute Management (July).
One article published after the Gillis Wetter Prize announcements
succinctly brought up the issue of 'recurrent appointments' but in the
context of specialised arbitrations. The authors refer to it as 'big fish,
small pool'. See Walker and Garcia, 'Highly Specialised International
Arbitration: How Many Arbitrators are There Really at Large?' in
Transnational Dispute Management special issue, supra n. 3.
From the perspective of the arbitrator and the intellectual process
of achieving independence, see A.S. El-Kosheri and K. Youssef,
The Independence of International Arbitrators: an Arbitrator's
Perspective' in ICC Bulletin Special Supplement, supra n. 3.
6Which is the prevailing and current view; see L. Craig, W. Park
and J. Paulsson, International Chamber of Commerce Arbitration
(3rd edn, Oceana, 2000); Derains and Schwartz, A Guide to the ICC
Rules of Arbitration (Kluwer Law International, 2005); E. Gaillard and
J. Savage (eds.), Fouchard, Gaillard and Goldman on International
Commercial Arbitration (1999); A. Redfern and M. Hunter, Law and
Practice of International Commercial Arbitration (4th edn, Sweet &
Maxwell, 2004).
At the time this article was submitted, the American Bar
Association's Disclosure Subcommittee had developed a Draft
Disclosure Commentary and checklist organised into four
categories: (1) self (the arbitrators own relationships); (2) relatives
(family relationships); (3) business associates; and (4) other
(according to M. Kantor, 'a catch-all category for other
circumstances that may implicate impartiality'). As regards 'repeat
arbitrators', the checklist, as it stood, would have put pressure on
the arbitrators to think twice about disclosing prior appointments.
The draft was presented to the Section Council of the ABA Dispute
Resolution Section in April 2008 but was not approved. In light of the
many comments they received, the Arbitration Committee of the
Dispute Resolution Section is in the process of rewriting them. See
M. Kantor, 'Arbitrator Disclosure: an Active but Unsettled Year' in
Transnational Dispute Management special issue, supra n. 3.
0. de Witt Wijnen, N. Voser and N. Rao, 'Background Information
on the IBA Guidelines on the Conflicts of Interest in International
Arbitration' in (2004) 5(3) Business Law Int'l 434.
9 IBA Guidelines, Rule 3.1.3, note 6.
' a Very recently the argument of 'repeat arbitrators' and 'repeat
players' was raised by a party, the cyclist Landis in a sports
arbitration before the Court of Arbitration for Sport. The cyclist filed a
motion in the U.S. District Court of California and challenged the
arbitrators on whether they should have disclosed conflicts of
interest that could have led to bias in their decision. Floyd Landis v

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United States Antidoping Agency (Landis case).

In the United States, transparency is taken further. For a
discussion of the case law in the United States, see Kantor, supra n.
7, and for the duty to investigate conflicts in the United States see
Rovine and Chinn, 'The International Arbitrator's Duty to Investigate
Conflicts: the United States Approach' in Transnational Dispute
Management special issue, supra n. 3.
This is shown by the results of a study led by Dr L. Mistelis. See
L. Mistelis, 'International Arbitration: Corporate Attitudes and
Practices: 12 Perceptions Tested: Myths, Data and Analysis
Research Report' in (2004) 15 Am. Rev. Intl Arb. 525.
13Regarding the IBA Guidelines, T. Clay commented that 'it is
necessary to reinsert objectivity in this area where everything is a
matter of subjectivity, or even double subjectivity, because the
arbitrator discloses what he believes that the parties will believe is a
cause for challenge': T. Clay, infra n. 16 at para. 4 (translated from
French).
14 As early as in 1987, 20 years ago, Axel Baum expressed concern
about the increase of dilatory tactics such as challenges: 'this trend
is particularly disturbing because it strikes at the very essence of the
arbitration process, both in theory and in practice. An arbitrator as
opposed to a professional judge, by nature of his background is
more vulnerable to criticism and challenge, but arbitration essentially
depends on the recognized integrity'. See Editorial in (1987) 4(4) J
Intl Arb. 5.
15 Paulsson disagrees: 'The proposition is that there are a few

dozen well-known arbitrators who see to it that outsiders are kept

out. However, arbitral institutions, on the one hand, and the parties
and their lawyers, on the other, have a far greater say in who gets
appointed than do arbitrators.' J. Paulsson, 'Ethics, Elitism,
Eligibility' in (1997) 14(4) J Intl Arb. 13.
16 Clay 'observes a very striking disagreement in practice of where

to set the boundaries between what should be disclosed and what

may stay secret': T. Clay, 'Qui sont les Arbitres Internationaux?', Les
Arbitres Internationaux Conference, Centre Francais de Droit
Compare, 4 February 2005, in (2005) Soc. Leg. Comp. 12, para. 23.
17 Ibid.
16Paulsson remarks: '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
systematic, favouritism': J. Paulsson, supra n. 15 at 14.
19 See e.g., C. Menkel-Meadow, 'Do the "Haves" Come Out Ahead

in Alternative Judicial Systems?: Repeat Players in ADR' in (1999)

15 Ohio St J on Disp. Resat 19.
2°A. Boralessa, 'The Limitations of Party Autonomy in ICSID
Arbitration' in (2004) 15 Am. Rev. Intl Arb. 253. The terms 'repeat
player' and 'repeat business' are used.
21 The main treatises do not have a definition and tend to use
wording in full to describe an arbitrator who is repeatedly, frequently
or regularly appointed by the same party or the same counsel or law
firm.
A definition in French has been found regarding the Fremarc

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ease: 'le meme arbitre est nomme de maniere repetee par la merne
partie dans des contentieux qui l'opposent sur des sujets
semblables a des partenaires differends'. E. Gaillard, 'Commentary
of Case Law' in (2003) 4 Rev. Arb. 1240.
Y. Detains and E. Schwartz, supra n. 6 at 128 and note 43 citing
22

M. Hunter.
2'1 Ibid. pp. 128-129.
25D. Hascher, 'ICC Practice in Relation to the Appointment,
Confirmation, Challenge and Replacement of Arbitrators' in (1995) 6
(2) /CC Bull. With regard to the intellectual allegiance resulting from
the arbitrator having determined issues in connected arbitrations,
there is, however, a risk that the arbitrator may come to the same
conclusion and this would affect his independence.
26Y. Detains and E. Schwartz, supra n. 6 at p.128 (emphasis
added).
The closest circumstance may be found in art. 8(1) of the
Swedish Arbitration Act: 'a person closely associated to him is a
party or otherwise may expect a benefit or detriment worth attention,
as a result of the outcome of the dispute'.
SCC Case V (014/2004).
Case A 7145-04, Stockholm's lower court (Tingsratt), s. 6,
29

Decision, 21 June 2004.

3' 8 M. Wallin, 'Skiljemannajav grundat pA flera uppdrag Iran samma
part eller advokatbyra' in (2004/05) JT 449.
21SCC Case V (014/2004). B deemed that X was objectively biased
and filed a challenge under the SCC Rules and requested that the
fact that X had not disclosed should be considered an aggravating
circumstance. B invoked the IBA Guidelines, as well as two French
Appeal Court decisions. X commented that he had no interest in A
or A's group of companies and that he only learned about the group
in answering B's question.
32 Arbitrator X was first asked about his appointments by A from
2002 to 2004 and replied that there was a total of eight out of which
five were ongoing. He was then asked to clarify how many times he
had been appointed in the years 1995 to 2004. He disclosed that it
was 10 times by companies in A's group and five were ongoing.
33The arbitral tribunal decided that the number of appointments was
not per se determining and that the context in the case at hand was
not one that pointed to impartiality.
31M. Wallin is in line with G. Nicholas and C. Partasides' recent
comment regarding the LCIA, that it is regrettable that the SCC does
not publish the reasoning behind its decisions. The lack of guidance
creates a situation of legal uncertainty as the consequences to be
drawn are much too general. M. Wallin, supra n. 30 at p. 458.
Case T 5044, Judgment of the Svea Court of Appeal,
Commentary by M. Wallin and K. Mild, (2007) 1 STAR at p. 131.
The court rejected setting aside proceedings against an award
rendered by an SCC tribunal composed of a Norwegian chairman
and co-arbitrators from Sweden and Russia. The Swedish claimant
(Rapla Invest AB) challenged the award, inter alia, because of the
disqualification of the Russian arbitrator, due to previous connection
with the other party. The respondent was a Cypriot company (TDK
Trade). After the award had been rendered, the claimant learned

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that the arbitrator had previously rendered an award in a case where

TDK Ukraine, another subsidiary of the TDK group, was an indirect
party. In the alternative, the claimant pleaded that the arbitrator had
acted as arbitrator in a dispute in respect of which an affiliate to TNK
was in an insolvency proceeding before a national court.
Unofficial translation of the judgment. The relevance of this
argument is questioned since it is difficult to make reputation a
guarantee of independence.
35For further reading on challenges and the SCC's practice, see H.
Jung, 'SCC Practice: SCC Challenges to Arbitrators: SCC Board
Decisions 2005-2007' in (2008) 1 STAR at p. 1.
Fretal v. ITM Entreprises, CA Paris, 28 October 1999, (2000)
Rev. Arb. 299, commentary by Ph. Grandjean.
Fremarc v. ITM Entreprises, Cass. 6 December 2001, (2003)
Rev. Arb. 1231 (commented, inter alia, by Emmanuel Gaillard); see
also Marc Henry, 'Pluralite de designation et devoir d'independance
et d'impartialite de l'arbitre', commentary on Paris, 1 re Ch. C, 29
January 2004, 10 and 17 February 2005; Trib. corn. Paris, (ref.), 6
July 2004, (2005) 3 Rev. Arb. 709.
41 See e.g., Qatar v. Creighton, Cass. 16 March 1999, (1999) 2 Rev.

Arb. 308, commented by Marc Henry, 'Les obligations

d'independence et d'impartialite des arbitres a la lumiere de la
jurisprudence recente in (1999) 2 Rev. Arb. 193. See also a Swiss
case where the reasoning is similar: Swiss Federal Tribunal, 15
October 2001, unpublished, Case no. 4P.188/2001 at www.bger.ch .
In both countries, the question is whether the undisclosed
circumstances could be the basis for a claim of lack of
independence and impartiality to the extent that the tribunal would
be held to be irregularly composed under the terms of the
procedural codes of the respective countries.
42 Frernarc v. ITM Entreprises, CA Paris, 2 April 2003.
43 CA Paris, 29 January 2004. The arbitration arose from an alleged
breach of a contract by the subcontractor (Serf). The arbitration
clause providing for a sole arbitrator was included in the contract by
the construction company (Bouygues). A first award was rendered
against Serf. In a similar arbitration, based on a similar arbitration
clause against a company in the same group, Serf challenged the
arbitrator. The arbitrator disclosed that since 1994 he had acted as
arbitrator in 51 cases involving parties from the same group of
companies (Le. on average 6 cases per year). Based on this
information Serf sought to set aside the first award but the opposing
party argued that at the time of the appointment of the arbitrator,
Serf was aware that he had been appointed eight times in contracts
with companies of the Bouygues group. Therefore Serf could be
considered to have waived the right to use this information. The
court considered that Serf had only obtained the information
fortuitously and that there was a business relationship between the
arbitrator and one party. The award was set aside.
44 S. Wilske and M. Stock, 'Rule 3.3.7 of the IBA Guidelines on
Conflicts of Interest in International Arbitration: the Enlargement of
the Usual Shortlist?' in (2005) 23(1) ASA Bull. 45 at p. 48. The
authors note that if the arbitrator's primary income stream is corning
from appointments from the same firm it is disqualifying, whereas
the same about of appointments (12 in their example) made by four
different firms over three years would not be. Clay suggests that this

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time limit is too short and should be longer for transparency reasons.
T. Clay, 'Commentaire Presentation des directives de l'International
Bar Association sur les conflicts d'interots dans l'arbitrage
international' in (2004) 4 Rev. Arb. 991 at para. 10.
J.D.M. Lew, L. Mistelis and S. Kroll, Comparative International
Commercial Arbitration (Kluwer Law International, 2003), p. 264.
46 M. Wallin, supra n. 30 at p. 458.
47 Conversely, he advises arbitrators to be equally restrictive in
accepting arbitration mandates and avoid having several ongoing
arbitrations where he/she was appointed by the same party or law
firm. Accepting appointments in this case would also lead to issues
of prejudgment if the cases are connected. Additional caution in
accepting the mandate is therefore advisable. M. Wallin, supra n. 30
at p. 459.
46In the Prodim case, the arbitrator was appointed by the same
party in one-third of the cases and the challenge was thus accepted.
49 CA Paris, 29 January 2004.
M. Henry, 'Pluralite de designation et devoir d'independance at
d'impartialite de l'arbitre', commentary on Paris, 1re Ch. C, 29
January 2004, 10 and 17 February 2005; Trib. Corn. Paris, (ref.), 6
July 2004, (2005) 3 Rev. Arb. 709 at para. 18.
51 M. Wallin, supra n. 30 at p. 459.
Mytilineos Holdings SA v. APPASP, CA Paris, 17 February 2005:
'the duty of disclosure aims at establishing a link of trust between
the arbitrator and the parties'.
SA Emballage 48 etal. v. Carlyle, CA Paris, ord. ref., 28 January
2005, cited in (2004) Rev. Arb. 215 (sommaires de jurisprudence).
In this case the failure to disclose was held to create a 'reasonable
doubt' as to the independence and impartiality of the arbitrator. Had
the circumstance been disclosed, it could not on its own have
created a reasonable doubt as a ground for disqualification.
Fremarc v. !TM Entreprises, CA Paris, 2 April 2003, Commentary
in French: E. Gaillard in (2003) 4 Rev. Arb. 1240; Loquin in (2002)
RTD Com. 657; Clay in (2003) Dalloz somm. 2473.
55 E. Gaillard, supra n. 54 at p. 1243.
A. Magnusson and P. Shaughnessy, The 2007 Arbitration Rules
513

of the Arbitration Institute of the Stockholm Chamber of Commerce'

in (2006) 3 Stockholm Arb. Rep. 33 at p. 41 et seq.
57 M. Henry, Commentary, supra at para. 19.
See supra n. 31.
Y3 In this controversial case, the Lind case, a former Supreme Court
Justice acting as arbitrator failed to disclose that he was 'of counsel'
of a law firm whose client was a party in the arbitration. The Svea
Court of Appeal found that he was not biased. Anders Jaen v.
Ericsson AB, Case T 6875-04, Svea Court of Appeal, 26 May 2005;
the Supreme Court ruled against the Swedish Appeals Court and
Ericsson AB was ordered to pay SwK800,000 for Ericsson AB's and
Justice Johan Lind's inexcusable and inappropriate actions in an
arbitration proceeding. See Case No. T 2448-06, Judgment of the
Swedish Supreme Court rendered in November 2007. Case
summary with observations by J. Fellas and P. ScholdstrOm in
(2007) S/AR 3 at p. 167. Also see Article on Sweden, in Global Arb.

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Rev. Special Report, European and Middle Eastern Review 2009, p.

81
J. Paulsson (ed.), 'International Handbook on Commercial
Arbitration', Suppl. 23 (March 1997), p. 26.
61 See supra n. 47.
62Gaillard argues it is not sound to let the arbitrators determine
themselves what to disclose or withhold within the category that is
not expressly a cause for challenge. 'Repeated appointments' is
such a category. E. Gaillard, supra n. 54 at p. 1242.
This has rightfully been pointed out to be one of the advantages
(-.3

of the IBA Guidelines: T. Clay, supra at n. 44 at point 7.

64
Stefan Lindskog, 'Skiljeforfarande: En Kommentar' in (2005)
Norstedts Juridik 472 at para. 5.2.
cbGustav M011er, The Finnish Supreme Court and the Liability of
Arbitrators' in (2006) 23(1) J Intl Arb. 95.
Raoul Duval v. V, TGI Paris, 12 May 1993, (1996) Rev. Arb. 411,
2d decision. Van Luijk, CA Paris, 12 October 1995. The Cour de
Cessation rejected the action brought by the arbitrator. Van Luijk v.
Raoul Duval, Cass. 16 December 1997, (1998) Dalloz
(unpublished).

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