Young ICCA-Wolters Kluwer Webinar:  Arbitrator Research Tips

This webinar on arbitrator research will focus on the arbitrator selection process. It will cover setting your criteria for the ideal arbitrator, resources for researching arbitrators, conducting due diligence on arbitrator candidates and promoting arbitrator diversity. It will also showcase the Wolters Kluwer profile navigator and relationship indicator tools. 

Elizabeth Kantor:  Liz is a professional support lawyer in the global arbitration practice at Herbert Smith Freehills LLP. Before taking up this role, Liz was a Senior Associate in the London and Singapore arbitration teams. Liz provides technical advice to clients and colleagues on complex issues relating to international arbitration. She also helps to lead and drive the firm's thought leadership and client and external engagement on key developments in arbitration. She is also involved in deriving client insights from the firm's arbitration data.

Yael Hollander De Groot:  Yael had over 10 years of experience as a corporate lawyer before pivoting into product development, with a mission to empower fellow lawyers to work smarter and more efficiently. Currently, Yael acts as the Senior Product Manager for Kluwer Arbitration, the world's leading digital solution for international arbitration research, where she is responsible for driving its strategic vision. 

Paul Kleist (Moderator):  Paul is Co-Director for Events at Young ICCA and a senior associate at Cleary Gottlieb Steen & Hamilton LLP in London, where he focuses on international arbitration. Paul has represented sovereign States and multinational corporations in complex international arbitrations conducted under the rules of the leading institutional and ad hoc arbitration regimes, including ICSID, the ICC, the LCIA, SIAC, and the SCC.  He also has significant experience in relation to the application of U.S. discovery rules in cross-border litigation, including the discovery statute 28 U.S.C. § 1782.

Download the slide deck from the webinar

Post Event Report

By Steven Daly (Trainee Solicitor, Cleary Gottlieb Steen & Hamilton)

On 26 February 2024, Young ICCA co-hosted a webinar with Wolters Kluwer on “Arbitrator Research Tips.” 

Paul Kleist, Co-Director for Events at Young ICCA and associate at Cleary Gottlieb Steen & Hamilton (London) welcomed the attendees and introduced the webinar, focussing on the arbitration selection process. He noted that the webinar would cover how to set criteria for the ideal arbitrator, utilise resources for researching arbitrators, conduct due diligence on arbitrator candidates and promote arbitrator diversity. 

Paul introduced the main speaker, Elizabeth (Liz) Kantor, professional support lawyer and former senior associate in Herbert Smith Freehills’ global arbitration practice. 

Introduction 

Liz began the session by emphasising the growing importance of arbitrator research. While historically arbitrators may have been selected on the basis of network and connections, today the process of arbitrator selection is approached differently and through more objective criteria, which can help promote a more fair and inclusive process. 

The session covered four topics:

1. Overview of the arbitrator selection process
2. How to undertake arbitrator research, with reference to a case study
3. Dealing with conflicts and due diligence 
4. Promotion of diversity 

An overview of the arbitrator selection process

One of the fundamental advantages of arbitration, and a key distinguishing factor from civil litigation, is the ability to select the decision-maker, which goes to the central tenet of party autonomy and arbitration being a consensual process. Parties may wish to have their disputes resolved by specialists in a certain sector or even non-lawyers altogether. This is key for clients, who ultimately want a favourable outcome, but it can also be important from a procedural perspective, especially as regards enforceability of an award. 

There is no one-size-fits all process, but firms are increasingly formalising how to research and select arbitrators and adopting objective criteria, in part to encourage diversity. As Liz explained, there are five broad stages: 

1. Set your criteria. The first step is to review the arbitration agreement to verify whether it predetermines any criteria. Next, discuss with your team and decide on the ideal profile of your candidate 
2. Research and create a longlist of candidates. Research involves using a mix of internal external resources to develop a longlist of prospective candidates, on the basis of the criteria you have set. 
3. Due diligence. It is important to seek feedback internally and then check for conflicts. You may also want to conduct interviews of arbitrator candidates. 
4. Create and sense-check your shortlist. This is usually about five names. At this stage, you may want to review your shortlist from a diversity perspective, especially if your firm has signed up to the Equal Representation Pledge. 
5. Present your shortlist to the client. It is also important to record the list in an internal database. 

With regards to stage 1, there are a number of criteria that you may want to adopt. The most common are legal expertise and qualifications, experience, reputation, cost, nationality and languages. You may also need to consider the prospective arbitrator’s availability, which can impact how long it takes for the arbitration to be completed, and weigh this against other factors such as cost and reputation. Finally, the most important factor for the client is often whether the arbitrator is likely to decide the case in your client’s favour. 

How to undertake arbitrator research, with reference to a case study

To underscore the points about arbitrator criteria, and show how research is carried out in practice, Liz introduced a case study based around an LCIA arbitration concerning a construction dispute relating to a project in the Middle East. It is seated in the DIFC, English law governed and the other side has appointed a “big name” arbitrator.  Liz explained how a firm might approach setting its criteria when faced with this case study and emphasised the need to utilise internal and external resources to expand the pool of potential arbitrators. Liz then previewed how the Wolters Kluwer profile navigator can be used to filter candidates on the basis of set criteria.

The profiles of each prospective candidate will provide details of their previous arbitral experience, which you should consider researching further to determine suitability.  You can also take advantage of other research tools such as JusConnect (JusMundi’s arbitrator search function), GAR’s Arbitrator Research Tool, the ICCA Membership Directory and the ICC’s database of previous appointments (and if looking for female candidates specifically, the ERA Pledge Female Arbitrator Tool, ArbitralWomen’s website and the GAR Compendium of Unicorns). 

Dealing with conflicts and due diligence

When it comes to the arbitration selection process, conflicts of interest can include both actual and apparent bias. It is important to undertake a rigorous conflict of interest check to limit the risk that the arbitrator you have selected is challenged by the other side. In this regard, you should generally review the IBA Guidelines, which have a traffic-light system of red, orange and green lists, and verify if the situations detailed there apply to your facts. 

In terms of organisations and individuals, consider possible connections between arbitrators and your client, law firm and other connected third parties such as funders. In terms of issue conflicts, you should also consider if an arbitrator has rendered an award relating to a similar dispute  (this is perhaps easier to determine in an investment treaty context where the awards are more likely to be public, but it can apply to commercial disputes too). Liz concluded this section by previewing the Wolters Kluwer relationship indicator tool. 

Promotion of diversity

Liz noted the recent publication of “The Usual Suspects: Decision-Making in Arbitrator Selection”, a report which found that arbitrator selection processes tend to be informal and reliant on personal recommendations, which means that only established arbitrators tend to be appointed. This can hold back the representation of diverse candidates on arbitral tribunals. It is important therefore to adopt a systematic process and objective criteria to broaden the pool of candidates. Additional potential measures include anonymising your shortlist of clients. 

The session concluded with participants asking questions on subjects including the setting of objective criteria, the process by which arbitrators disclose conflicts and whether the goals for arbitrator diversity are being achieved.