Interviews For Prospective Arbitrators

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INTERNATIONAL ARBITRATION PRACTICE GUIDELINEInterviews for ProspectiveArbitratorsChartered Institute of Arbitrators

Chartered Institute of Arbitrators12 Bloomsbury SquareLondon, United KingdomWC1A 2LPT: 44 (0)20 7421 7444E: info@ciarb.orgwww.ciarb.orgRegistered Charity: 803725The Chartered Institute of Arbitrators is a learned society that works in the publicinterest to promote and facilitate the use of Alternative Dispute Resolution (ADR)mechanisms. Founded in 1915 and with a Royal Charter granted in 1979, it is a UKbased membership charity that has gained international presence in more than 100countries and has more than 14,000 professionally qualified members around theworld. While the Chartered Institute of Arbitrators has used its best efforts inpreparing this publication, it makes no representations or warranties with respect tothe accuracy or completeness of its content and specifically disclaims any impliedwarranties of merchantability or fitness for a particular purpose.All rights are reserved. No part of this publication may be reproduced, stored in aretrieval system or transmitted in any form or by any means, electronic, mechanical,photocopying, recording or otherwise, without the prior permission in writing of theChartered Institute of Arbitrators. Enquiries concerning the reproduction outside thescope of these rules should be sent to the Chartered Institute of Arbitrators’Department of Research & Academic Affairs.

TABLE OF CONTENTSMembers of the drafting committeeIntroduction . 1Preamble . 1Articles and commentariesArticle 1 — General principles . 3Commentary on Article 1 .4Article 2 — Matters to discuss at an interviewprior to an appointment . 9Commentary on Article 2 .10Article 3 — Matters that should not be discussed .12Commentary on Article 3 .12Article 4 — Interviews for prospective sole or presiding arbitrators .12Commentary on Article 4 .13Conclusion . 14Endnotes . 15

MEMBERS OF THE DRAFTING COMMITTEEPractice and Standards CommitteeTim Hardy, ChairAndrew BurrBennar BalkayaCiaran FahyJo DelaneyKaren AkinciLawrence W. NewmanMohamed S. Abdel WahabMurray ArmesNicholas GouldRichard TanShawn ConwaySundra Rajoo, ex officioWolf Von Kumberg, ex officio

Interviews for ProspectiveArbitrators

Interviews for Prospective ArbitratorsIntroduction1. This Guideline sets out the current best practice in internationalcommercial arbitration in relation to interviews for prospectivearbitrators. It provides guidance on:i. how to respond to a request for an interview by a party prior to anappointment (Article 1);ii. matters that can be discussed at an interview prior to an appointment(Article 2);iii. matters that are not appropriate for discussion at an interview prior toan appointment (Article 3); andiv. specific arrangements for interviews for prospective sole or presidingarbitrators (Article 4).2. In this Guideline, references to ‘ex parte communications’ should beunderstood to encompass oral or written communications, for thepurposes of an interview (1) prior to an appointment, between any partyand a prospective arbitrator without the presence of the opposing party,and (2) after an appointment, for the purposes of discussions between anappointing party and its appointee in relation to the selection of apresiding arbitrator to the extent that the agreed or applicable procedureprovides for the selection of a presiding arbitrator by the co-arbitrators.Preamble1. Two fundamental principles of arbitration are that (1) parties are free toselect arbitrators of their own choosing to decide their dispute and (2)the arbitrators are independent and impartial. Most national laws andarbitration rules have specific provisions requiring arbitrators to declaretheir independence and impartiality at the time of their appointment andto disclose any change to that status if it should occur at any time duringthe arbitration. Additionally, to avoid creating an appearance of bias orlack of independence during the course of the arbitration, some national1

Chartered Institute of Arbitratorslaws and arbitration rules require that arbitrators should not have anyunilateral communications, including conversations, with either of theparties.2. The issue of bias, either actual or apparent, or lack of independence, is tobe determined objectively, from the point of view of a reasonable thirdperson who, with knowledge of the circumstances of the case, wouldconclude that there is a likelihood that the arbitrator, when making adecision, would be influenced by factors other than the merits of thecase.3. In international arbitration it is common practice to have threearbitrators. Each party appoints one arbitrator and then the agreedprocedure, rules and/or law(s) usually provide for the party-appointedarbitrators to select, or to participate in the selection of, a presidingarbitrator. As the selection of arbitrators is one of the most importantstrategic decisions in arbitration, the parties may want to interview aprospective arbitrator before making an appointment instead of relyingsolely on publicly available information and personal recommendations.4. Even though such an interview would take place before any appointmentwas made, purely because it involves only one of the parties and theprospective arbitrator present, it carries with it a risk that the absentparty may later use the fact of the interview to challenge the theyareappointed.Accordingly, prospective arbitrators should take great care whenparticipating in such an interview to ensure that it does not compromisethe integrity of the arbitral process or their impartiality andindependence.5. National laws and arbitration rules rarely address the issue of interviewsfor prospective arbitrators. A few laws and rules do specify that ex partecommunications between a prospective arbitrator and an appointingparty are permissible for the purposes of discussing the candidate’s2

Interviews for Prospective Arbitratorsavailability, past experience and the general nature of the dispute butgive no guidance as to how an interview should be conducted. 16. The discrete considerations raised by the practice of participating ininterviews prior to an appointment are dealt with in this Guideline with aview to minimising the risks of challenges to arbitrators and/or theirawards arising from such interviews. The previous edition of thisGuideline provided that arbitrators should tape record the interview anddisclose the tape to the other party and to the appointing body, if any, atthe earliest opportunity available. As this is no longer the practice inmost jurisdictions, the Guideline has been re-drafted to reflect currentbest practice which is described in detail below.Article 1 — General principles1. Subject to the caveats detailed in this Guideline, arbitrators mayagree to be interviewed by a party prior to an appointment as partof the selection process. The mere fact that a prospective arbitratorhad been interviewed by one of the parties only, prior to anappointment, should not, of itself, be a ground for challenge.2. When considering a request for an interview, prospectivearbitrators should enquire whether the arbitration agreement,including any arbitration rules and/or the law of the place ofarbitration (lex arbitri) contain provisions prohibiting ex partecommunications prior to appointment.3. If minded to proceed with the interview, prospective arbitratorsshould request a copy of the arbitration agreement so that they areinformed of the names of the parties and the general nature of theprospective appointment in order to check whether they have anyconflict, any experience and qualifications required and anyknowledge of the language in which the arbitration will beconducted.3

Chartered Institute of Arbitrators4. After having cleared an initial conflicts check, prospectivearbitrators should agree with the interviewing party, and confirm inwriting, the basis upon which the interview is to be conducted.5. Prospective arbitrators should not receive any remuneration orhospitality for agreeing to participate in an interview.6. Prospective arbitrators should make contemporaneous notes of thematters discussed in the interview.Commentary on Article 1Paragraph 1Participating in an interview is not a sufficient ground for challengeThe fact that an arbitrator had been interviewed by a party should not ofitself provide grounds for challenging an appointee’s impartiality andindependence. However, since a conversation exceeding the appropriatescope could be a ground for challenge, prospective arbitrators shouldtake great care to avoid any aspect of the interview providing groundsfor challenge.Paragraph 2Discretion to accept an interviewWhen approached with a request for an interview, prospectivearbitrators should determine whether it is appropriate, in light of theapplicable rules or law(s) and any known requirements, such as, forexample, technical expertise, language skills and availability, to acceptthe request. For these purposes, they should ask the interviewing party toprovide in advance a copy of the arbitration agreement, includinginformation about the governing law, arbitration rules or constitutionalterms applicable to the proceedings and the place of arbitration, ifagreed, and any deadlines for making the final award. Prospectivearbitrators should not express any opinion as to the operation,4

Interviews for Prospective Arbitratorseffectiveness and/or interpretation of the arbitration agreement.Paragraph 3Subject matter experience andknowledge of the language of the arbitrationTo determine whether they have the requisite competence andqualifications prospective arbitrators should seek a brief description ofthe general nature of the dispute. Depending on the nature of the dispute,the type of arbitration and the arbitration agreement, prospectivearbitrators may be required to have specific legal and/or technicalknowledge, experience and/or qualifications. Knowledge of thelanguage(s) in which the arbitration will be conducted is very importantand arbitrators should only accept appointments if they are sufficientlyproficient in the language of the arbitration, so that they can understandthe dispute and follow what is happening during the proceedings.Paragraph 4Conflict checksa) When considering whether to accept an appointment, it is important toidentify as early as possible any matters that may cause the prospectivearbitrator concern as to their impartiality or independence. Prospectivearbitrators should disclose to the parties, any circumstances they areaware of that may give rise to justifiable concerns as to their impartialityor independence. For these purposes, prospective arbitrators shouldconsider any past or existing relationship with any of the parties,including affiliates of that party, their representatives and/or the law firmof those representatives. They should also consider any financial orpersonal interest in the outcome of the case, for example, through someshareholding or office held with a third party who has an interest in theoutcome of the case.25

Chartered Institute of Arbitratorsb) Depending on the particular circumstances of the case, prospectivearbitrators may request additional information regarding the identity ofexecutors, shareholders, investors or third party funders with any interestin the outcome of the case. This may include information as to a party’scorporate structure, including a list of the parties’ parents, affiliates andsubsidiaries. Prospective arbitrators may also consider it necessary toseek identification of any persons who the interviewing party anticipatesmay be called as witnesses and/or experts. Prospective arbitrators mayalso ask if any other arbitrator has already been appointed and, if so,who they are.Third-party funding and conflicts of interestc) Third-party funding in international arbitration is a relatively recentphenomenon. If an arbitrator has a relationship with a funder whichcould create a conflict and interviewing parties may not be aware of thatrelationship, it would be prudent, prior to the interview, to draw theparty’s attention to the fact that a relationship of this kind could begrounds for challenge, so that the party can consider whether it isappropriate to make any particular disclosure. This will enable a fundedparty to raise the issue with the funder and avoid a conflict emerginglater in the proceedings.Paragraph 4Ground rulesa) Before accepting a request for an interview, prospective arbitratorsshould agree in advance the limits of the interview with the interviewingparty. The place, the timing, the names and roles of the participants andthe scope of matters to be discussed should be set out in an agendaexchanged before the interview takes place. Prospective arbitratorsshould also ask the interviewing party to agree that any information6

Interviews for Prospective Arbitratorsprovided as to the nature of the case should be stated in a generalmanner, avoiding advocacy or misrepresentation of the other party’sposition.3b) This Guideline may, by agreement, serve as the basis upon which theinterview is to be conducted, with such additional restraints andsafeguards as agreed in advance and as may be appropriate in thespecific circumstances of the case.Nature and place of the interviewc) The interview may be conducted in person, by telephone orvideoconference. The interview should be conducted in a professionalmanner and, if in person, in the prospective arbitrator’s office or otherneutral business location rather than the offices of the interviewingparty. The interview should not take place in a restaurant, lounge, café,bar, or any similar place, and should not include a meal, drinks or anyelement which might be considered as hospitality.4The interviewing teamd) It is good practice to agree in advance the constitution of theinterviewing team, including who will lead the interview and how it willbe conducted. The interview should normally be led by a seniorrepresentative of the interviewing party’s legal team.Duration of the interviewe) The length of the interview should be determined and agreed in advance.The longer an interview lasts, the greater the risk that it will stray intomatters which should be avoided (see Article 3 below). Appropriate timewill depend on the particular circumstances of the case, but 30 minutesshould be sufficient for most interviews.7

Chartered Institute of ArbitratorsParagraph 5Reimbursement for participating in an interviewProspective arbitrators should not charge or accept any remuneration orgift for their participation in an interview. If the interview takes place ina business location other than the prospective arbitrator’s office and theyhave to travel to the meeting, they may be reimbursed for theirreasonable travel expenses or, if it takes place by telephone and/orvideoconference, they may be reimbursed for any reasonablecommunication expenses. Any such reimbursement should be agreed inadvance and in writing.Paragraph 6Disclosure of the fact of the interviewa) There is no general duty to disclose the fact that an interview has takenplace. Interviews are routine in some jurisdictions and less common inothers.5 As a result, parties may have different attitudes to theacceptability of interviews with prospective arbitrators and differentexpectations as to the need to disclose or be informed that an interviewhas taken place. Prospective arbitrators, prior to agreeing to beinterviewed, should consider whether it would be appropriate to disclosethe fact that an interview took place, if appointed. If they decide infavour of disclosure, the prospective arbitrators should inform theinterviewing party what they will disclose, if appointed.Taking notes or recording interviewsb) There is no general duty to keep a record of the content of an interview,however, it is good practice for prospective arbitrators to make acontemporaneous note of the matters discussed in an interview in orderto address any later suggestions that inappropriate matters werediscussed. A prospective arbitrator who considers it would be8

Interviews for Prospective Arbitratorsappropriate to make a recording of an interview should first obtain theagreement of the interviewing party before doing so. Alternatively, aprospective arbitrator may consider it appropriate to bring a secretary orother assistant to take notes in the interview, in which case they shouldfirst obtain agreement of the interviewing party.Disclosure of the content of the interviewc) There is no general duty to disclose the content of an interview. Anynote or recording of the interview taken by the candidate is primarily fortheir own recollection. An arbitrator who considers it is appropriate todisclose the note or the recording of the interview should do so promptlyafter their appointment and to all parties, any co-arbitrators and anyarbitral institution in order to show the integrity with which theinterview was conducted and thereby reduce the risk of challenges.Article 2 — Matters to discussat an interview prior to an appointmentMatters to be discussed at an interview should be clearly definedand agreed with an agenda exchanged in advance. In any event, thecontent of an interview should be limited to the following:i. past experience in international arbitration and attitudes to thegeneral conduct of arbitral proceedings;ii. expertise in the subject matter of the dispute;iii. availability, including the expected timetable of the proceedingsand estimated timings and length of a hearing; and/oriv. in ad hoc arbitrations, the prospective arbitrator’s reasonablefees and other terms of appointment, to the extent permissibleunder the applicable rules and/or law(s).9

Chartered Institute of ArbitratorsCommentary on Article 2a) Prospective arbitrators should explain to a party requesting an interviewthat, if appointed, the fact or content of an interview may give rise tochallenges to the arbitrator or any award. For these reasons, it is goodpractice to establish an agreed procedure and an agenda in the event thatan interview is to take place. The purpose of an interview should be toenable a prospective arbitrator and a party to discuss the candidate’ssuitability and availability for the appointment. Therefore, it should belimited to these specific matters in order to reduce the risk of a challengeto the candidate, if appointed, and/or to any award.b) The topics to be discussed should be agreed in writing in advance. Thisallows the prospective arbitrator and the interviewing party to preparefor the interview. It should also enable any concerns to be raised inadvance and thereby reduce the risk of straying into areas that should notbe discussed such as the candidates’ views on issues likely to arise in thecourse of the arbitration. Also, when discussing the agreed topics theprospective arbitrator should not give any advice and the interviewingparty should not ask the candidate to give advice. Any questions askedat the interview should be neutral and general in nature.Past experience as an arbit

prospective arbitrator before making an appointment instead of relying solely on publicly available information and personal recommendations. . Before accepting a request for an interview, prospective arbitrators should agree in advance the limits of the interview with the interviewing party. The place, the timing, the names and roles of the participants and the scope of matters to be .

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