Professor Catherine Rogers from Bocconi University delivered the opening keynote address of the 2024 Basel Winter Arbitration School on 5 February hosted by VISCHER. The recording of the keynote is now available online.
Professor Anna Petrig and Professor Yarik Kryvoi moderated this keynote and the Q&A session, which followed.
This keynote proposes a new theory for understanding the meaning of arbitrator impartiality and examine the structural benefits of party appointment in arbitral tribunal decision-making.
As adjudicators, international arbitrators are a unique balance between party autonomy and impartiality. In international arbitration, typically each party selects, with minimal formal constraints, one “party-appointed arbitrator.” The two party-appointed arbitrators then select a chairperson, often in direct consultation with the parties who appointed them.
Parties routinely identify the ability to select arbitrators as one of the main reasons they choose international arbitration to resolve their disputes. However, arbitrators are expected to act impartially in rendering just and legal outcomes once appointed.
In recent years, critics question whether arbitrators who are intentionally selected by parties for a particular case are truly capable of impartial decision-making. Critics have directed such questions with particular seriousness at investment arbitrators.
In both contexts, questions about arbitrators’ impartiality implicate the very legitimacy of arbitrator decision-making and have led to proposed reforms. In commercial arbitration, some critics propose eliminating party-appointed arbitrators altogether. In investment arbitration, critics propose completely replacing investment arbitrators with a permanent investment court.
Catherine is a professor of law at Bocconi University in Milan Italy. She specializes in ethics and professional regulation in international arbitration. She is the founder and CEO of Arbitrator Intelligence, a legal tech startup. Among other appointments, Catherine is a Reporter for the American Law Institute’s Restatement of the U.S. Law of International Commercial and Investor-State Arbitration and was a co-chair of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration together with William W. Park.
