Journal Article

Dealing in Power: Gatekeepers in Arbitrator Appointment in International Commercial Arbitration

Magdalene D’Silva

in Journal of International Dispute Settlement

Volume 5, issue 3, pages 605-634
Published in print November 2014 | ISSN: 2040-3585
Published online October 2014 | e-ISSN: 2040-3593 | DOI: https://dx.doi.org/10.1093/jnlids/idu013
Dealing in Power: Gatekeepers in Arbitrator Appointment in International Commercial Arbitration

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  • Arbitration
  • Private International Law and Conflict of Laws
  • Public International Law
  • Settlement of Disputes

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This article critically analyses arbitrator appointment in institutionally administered international commercial arbitration, by using Cotterrell’s ‘Law and Community’ socio-legal method to examine the power of party autonomy in the appointment of international arbitrators. The analysis considers the implications of this power being passed from international commercial arbitration user parties, to arbitral institutions (alongside proposals for centralized arbitrator information) as a solution to perceived problems of arbitrator bias and lack of diversity. Scrutiny of international arbitration scholarship, empirical research and the salient rules of four leading arbitral institutions suggests that party autonomy in arbitrator appointment entails dealing in power, over arbitrator information, in ‘affective’ transnational commercial networks of community between individuals based on interpersonal trust. A hypothesis emerges about the gatekeeping effect of such networks which, if accepted, has positive implications for the potential role to be played by arbitral institutions in reinforcing party autonomy, rather than usurping it.

Journal Article.  14655 words.  Illustrated.

Subjects: Arbitration ; Private International Law and Conflict of Laws ; Public International Law ; Settlement of Disputes

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