Dealing in Power: Gatekeepers in Arbitrator Appointment in International Commercial Arbitration
D'Silva, M, Dealing in Power: Gatekeepers in Arbitrator Appointment in International Commercial Arbitration, Journal of International Dispute Settlement, 5, (3) pp. 605-634. ISSN 2040-3585 (2014) [Refereed Article]
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.