The Move Away from Closed-List Arbitrator Appointments: Happy Ending or a Trend to Be Reversed?

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CIETAC’s Vice Chairman and Secretary General recently announced at a conference in London that CIETAC may soon permit parties to select arbitrators from outside the CIETAC list. As the CIETAC Rules currently allow parties to appoint off-list only if they have agreed to do so, this announcement suggests that CIETAC may in the future allow off-list appointments even where the parties have not reached such an agreement. This change was cited as one of a number of ways in which CIETAC is working to accommodate the expectations of foreign parties. If implemented, virtually none of the major international arbitration institutions will require that parties appoint arbitrators from a closed list (the Court of Arbitration for Sport is the only prominent international institution that maintains a closed-list procedure; ICSID Annulment Committees are appointed from a closed list, but the appointments are made by the Chairman of the Administrative Council of ICSID on the advice of the Secretary-General, not the parties).

The move by CIETAC is in contrast to a recent proposal made by Jan Paulsson on this forum and elsewhere that party appointments be made from closed lists. Mr. Paulsson’s proposal stems from his thesis that party appointments of arbitrators must be forbidden or at least rigorously policed in order to avoid bias of the party-appointed arbitrator in favor of the appointing party. His ideal solution is that any arbitrator be chosen jointly by the parties or be selected by an institution. Recognizing, however, that the party appointed arbitrator institution is deeply ingrained in arbitration practice, Mr. Paulsson raises a number of more pragmatic alternatives, including the proposal that party appointments be made from closed lists (Mr. Paulsson’s other proposals are outside the scope of this blog). The result of this proposal, Paulsson argues, is that arbitrators are selected from a pool that has been vetted by the institution and whose members are less likely to be beholden to the appointing party.

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