Repeat Appointments And Perceived Bias In Sector-Specific Arbitration : A Conflict Screening Framework

Introduction

The legitimacy of arbitration is drawn from the confidence of the parties in the neutrality of the tribunal. However, when the sectors depend on a small pool of technical specialists what happens is that the same arbitrator is often appointed repeatedly for the same party or even by different companies within one corporate group. But just because a repeat appointment has taken place does not amount to partiality, it may reflect expertise, efficiency and legitimate preference for consistent decision-making. What it surely creates is a structural concern. When an arbitrator receives a fair share of work or income from one specific appointing group, it may often be perceived as having an incentive to favour it, while the counterparty who appears once has neither comparable information nor comparable influence.  The law then considers the consequence of the appearance of bias as a legal matter and not a matter of proof of actual bias.