Practice and Predicament: The Nationality of the International Arbitrator (With Survey Results)

This Essay builds on the available literature to date and offers a more probing examination of the international arbitrator and nationality. The opening section reiterates how arbitrator nationality relates to the traditional requirements of arbitrator impartiality, independence, and neutrality (with which the “arbitrator” is most synonymous); how arbitral rules seek diversity of nationality between the tribunal and the parties; the underlying reasons for national neutrality being the accepted practice in international arbitration; and criticisms of the practice. With this background in place, the Essay poses challenging questions relating to the arbitrator’s nationality, with the aid of hypothetical permutations of an international arbitration matter. The hypothetical, which will offer varying descriptions of prospective arbitrators’ nationality and national affiliation, will inspire further discussion on the always difficult issues of party challenge of the arbitrator and the arbitrator’s disclosures. The hypothetical will be put to the test in a survey of international arbitration attorneys from one country asked to give their reactions to prospective arbitrators who have varying degrees of association to another country. Given the sensitivity to national identification in the international commercial arbitration arena, the matter of the nationality of the arbitrator will continue to be of interest.