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Time limits encourage parties to be mindful lenge is based on past or present positions Repeat Appointments. In recent years, the types of arbitration. While this should not be

of potential independence or impartiality taken by the arbitrator as counsel, and those issue of repeat appointments of arbitrators viewed as a negative development, insofar
issues at the outset of the arbitration, before based on the arbitrator having served as arbi- by the same parties or the same counsel has as it may simply relect the commitment to
hearings have been held and before much trator on prior cases dealing with the same also come up more frequently in both invest- ensuring the independence and impartiality
has occurred in the case. If the challenged or similar issues.15
ment and commercial arbitrations. While this of the system’s decision makers, it certainly
arbitrator is removed or chooses to resign, Commentators, including the Joint Task challenge has come up numerous times, it warrants monitoring and further analysis. In
a new arbitrator can be added before much Force, have generally expressed concern is not clear how many appointments of the addition, such analysis can be enormously
of the case has moved forward.
about granting issue challenges of the irst same arbitrator by the same party or counsel aided if arbitral institutions would be more
Dilator y Challenges. While mandated kind (i.e., based on opinions expressed in are too many.
transparent about their decisions on chal-
institutional conirmation procedures and time scholarly or professional publications or The IBA Guidelines suggest that two or lenges by publishing abstracts or summaries

limits are likely to encourage parties to ile speeches) on the ground that it would have a more appointments in the last three years by of those decisions so that practitioners and
meritorious challenges early, neither of these chilling effect on discussion of contemporary the same party or its afiliate, or more than arbitrators have a better understanding of
mechanisms can prevent parties from iling arbitration issues. This view is relected in the
three occasions by the same counsel or law the parameters applicable to these issues.
dilatory challenges, which have become more irm, are possible grounds for challenge and •
frequent. A party seeking to ile a challenge amount to an “Orange List” level of concern, ••••••••••••••••••••••••••••
only to delay the proceeding can simply assert meaning that it may give rise to doubts about 1. See, e.g., Ana Stanic, Challenging Arbitrators and the
that it only just became aware of the basis for Time limits encourage par- the arbitrator’s independence or impartial- Importance of Disclosure: Recent Cases and Relections,
the challenge. Further, such challenges can ity.19 However, disqualiications based on this 8:1 TRANSNATIONAL DISPUTE MGMT. 205, 205 (2011);
ties to be mindful of potential Simon Greenberg, Tackling Guerrilla Challenges Against
still achieve that objective even if the chal- independence or impartiality ground can be based on the total number of Arbitrators: Institutional Perspective, 7:2 TRANSNATION- AL DISPUTE MGMT. 1, 2 (2010).
lenge is ultimately rejected, as the challenge appointments itself, regardless of the time 2. Meg Kinnear and Frauke Nitschke, “Disqualiication
must be reviewed before that determination issues at the outset of the restrictions, or other factors. For example, of Arbitrators under the ICSID Convention and Rules,”
can be made. This strategy can be even more in an ICDR arbitration, an arbitrator was dis- in Challenges and Recusals of Judges and Arbitrators in
effective if the institution stays the proceeding arbitration, before hearings qualiied for having been selected to serve as International Courts and Tribunals (Chiara Giorgetti ed.)
while the challenge is evaluated, although it have been held and before an arbitrator by a law irm only three times (Brill Nijhoff, 2015), pp. 34-79, at 37.
3. See ICC Rules of Arbitration (ICC Rules), Article
does not always work out as planned. In Suez, in the last ive years, but had been asked to 13(2), http://www.iccwbo.org/Products-and-Services/Ar-
Sociedad General de Aguas de Barcelona S.A. much has occurred in the case.
serve in such capacity by the irm several bitration-and-ADR/Arbitration/Rules-of-arbitration/ICC-
and Vivendi Universal S.A v. Argentine Republic, other times and had also been an expert wit- Rules-of-Arbitration/ (last visited March 4, 2016); LCIA
Arbitration Rules (LCIA Rules); Article 7.1 http://www. lcia.org/Dispute_Resolution_Services/lcia-arbitration-
ICSID Case No. ARB/03/19 (Oct. 22, 2007), ICSID IBA Guidelines, which place prior publication ness for the irm.
rules-2014.aspx (last visited Feb. 26, 2016).
rejected Argentina’s challenge to an arbitrator of “a legal opinion concerning an issue that In investment arbitrations, disqualiica- 4. Loretta Malintoppi and Andrea Carlevaris, “Chal-
iled 53 days late and within two weeks of the also arises in the arbitration” on the “Green tions for repeat appointments have not been lenges of Arbitrators, Lessons from the ICC” in Challeng-
hearing dates, for lack of timeliness. Despite List,” which lists areas as to which arbitra- common. In Burlington Resources v. Ecuador, es and Recusals of Judges and Arbitrators in International
the suspension of the proceeding, the original tors have no duty of disclosure. Neverthe- ICSID Case No. ARB/08/5, IIC 620 (Dec. 13, Courts and Tribunals (Chiara Giorgetti ed.) (Brill Nijhoff, 2015) at 154.
hearing dates were not changed. If the Suez less, in recent years, there have been several 2013), one of the grounds on which Ecuador 5. Id.
challenge was brought solely to delay, it ulti- investment arbitration challenges involv- challenged an arbitrator was that the arbitra- 6. 2013 ICC Dispute Resolution Statistics.
mately was not successful.
ing precisely this situation. Although most tor had been appointed by Freshields Bruck- 7. Id.
Suspension is the correct approach if the were rejected, at least one was successful. haus Deringer in eight arbitrations between 8. 2014 ICC Dispute Resolution Statistics.
9. Id.
10. ICC Rules, Article 14.
challenge is likely to be accepted. Allowing In CC/Devas (Mauritus) v. Republic of India 2007 and 2013. However, this aspect of the 11. LCIA Rules, Article 10.3.
the arbitration to go forward, knowing that a (Sept. 30, 2013), an arbitrator was success- challenge was rejected as untimely and was 12. AAA Administrative Review Council, Review Stan-
new arbitrator will need to be appointed and fully challenged because he had (1) taken not addressed. In Caratube, mentioned earlier, dards, at 2, available at https://www.adr.org (under the
become integrated with the case, can waste a position on an issue (“essential security the arbitrator who was disqualiied had been “Services” menu, select “Case Management Services;” then click “Administrative Review Council,” and down-
the parties’ money and could potentially interests”) in two prior arbitrations deemed appointed by the same law irm in two cases. load “Council Review Standards”) (last visited March 4,
require parts of the case to be redone at a similar to an issue in the case before him and However, that disqualiication was also based 2016).
later date. Yet, postponing the arbitration (2) enthusiastically defended his views on on other factors, including the fact that the 13. Recent ICSID decisions have indicated that iling
while the challenge is evaluated can also that issue in an article.
case involved many of the same witnesses within 10 days of learning the basis of the challenge is
suficient but doing so more than 53 days after is too long.
encourage parties whose sole objective is As to challenges based on an arbitrator’s and legal arguments.
14. ICSID Rules of Procedure for Arbitration Proceed-
to delay the proceeding to ile a baseless past or present position as advocate in other ings (ICSID Rules), Rule 9(6).
challenge to achieve their objective.
arbitrations, those involving prior service as Conclusion
15. INT’L COUNCIL FOR COMMERCIAL ARBITRATION
counsel have generally been rejected, while AND AMERICAN SOC’Y OF INT’L LAW, Joint Task Force Report, Discussion Draft (March 10, 2015), available at
Common Substantive Challenges
those involving an arbitrator’s serving con- Although the overall number of arbitra- https://www.asil.org/sites/default/files/ASIL-ICCA%20
currently as arbitrator and counsel have had tor challenges appears not to have changed Joint%20Task%20Force%20-%20Discussion%20Draft%20
While the recent increase in challenges more success. Thus, panels have generally significantly in international commercial 10%20March%202015.pdf.
appears only to be seen in ICSID cases, cer- allowed an arbitrator to serve on a panel arbitrations, it has increased in investment 16. Id. at 37-38.
tain types of challenges have received con- involving an issue on which, in a prior case, arbitrations. Moreover, certain types of 17. See, e.g., Telekon Malaysia Berhard v. Ghana, Dist. Court, The Hague, Challenge No. 17/2004, Petition No.
HA/RK 2004, (Nov. 5, 2004); Blue Bank Int’l & Trust (Bar-
siderably more attention in recent years and he had taken a position as counsel.16 By con- challenges, such as those involving repeat bados) Ltd. v. Bolivarian Republic of Venezuela, ICSID
appear to be on the rise. These challenges trast, service as arbitrator at the same time appointments, appear to have risen in both Case No. ARB/12/20 (Nov. 12, 2013).
include those based on what some have called one is serving as counsel on another case commercial and investment arbitrations, 18. See INT’L COUNCIL FOR COMMERCIAL ARBITRA- TION AND AMERICAN SOC’Y OF INT’L LAW, supra note
“issue conlicts,” and repeat appointments. involving the same issue has been viewed while others that have risen with increas- 15, at 1.
We deal here with each of these types of as problematic, requiring withdrawal from ing frequency in the investment arbitration 19. IBA Guidelines on Conlicts of Interest in Interna-
challenges.
one or the other case.17
context have the potential of increasing in all
tional Arbitration (Oct. 23, 2014), 3.1.3, 3.3.8.
Issue Conflicts. Challenges based on The third type of issue challenge, involv-
“issue conlicts” appear to have generated ing arbitrators who have served on two
the most attention recently, leading to the cre- or more panels addressing similar legal

ation in 2013 of a joint task force to study the issues, would appear to present the great-
issue by the American Society of International est dificulty. In Caratube Int’l Oil v. Republic
Law (ASIL) and the International Council for of Kazakhstan, ICSID Case No. ARB/13/13
Commercial Arbitration (ICCA) (the Joint Task (March 20, 2014), for example, an arbitrator
Force). Although these challenges tend to was disqualiied because he had served on Research, Draft, Prepare
arise primarily in investment arbitrations as a prior arbitration involving similar alle- Smart Litigator Is Your Complete Practice Solution
these awards are more likely to be public, they gations and the same parties, and it was
can also arise in commercial arbitrations. As feared that information acquired during the Exclusive Content • Intuitive Navigation • Unmatched Value • Highly Optimized

noted by the Joint Task Force in its 2015 draft irst arbitration might create a predisposi-
report, the term “issue conlicts” can include tion on the same issue in the second. Most START YOUR FREE TRIAL
at least three types of situations: those where challenges of this type, however, have been SmartLitigator.com
the challenge is based on comments made rejected, largely because either the parties
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writings and speeches, those where the chal-
iciently different.18