Challenge and Disqualification of Arbitrators in International Arbitration

摘要

The right to an impartial and independent tribunal is a fundamental right of any party in arbitration. To ensure that the right is adhered to during the arbitral dispute settlement process, arbitral rules generally authorize parties to challenge and disqualify an arbitrator lacking such qualities. In investment treaty arbitration, issues of arbitrator neutrality are arguably more acute than in international commercial arbitration. Instead of viewing arbitration as a method of settling individual disputes based on a contract between two private parties, investment treaty arbitration is seen as a social institution that operates, at least partially, within a public law system. And, within that system, arbitrators exercise public authority by reviewing government acts and deciding the appropriateness of how states interact with private economic actors. When investment tribunals confront issues of public interest, their decisions impact not only the two parties to the dispute, the host State and the investor, but non-parties as well. The public component of investment treaty arbitration arguably mandates higher levels of independence and impartiality and, with the rise in arbitrator challenges, warrants extensive reflection.