Expert Arbitration practitioners Velimir Živković, Miljana Bigovic, Niamh Leinwather, Matej Pustay, and Michail Risvas, explored the often opaque process of arbitrator selection in international arbitration. The discussion addressed both the technical procedures and strategic considerations that shape tribunal composition, offering insights for practitioners navigating this critical aspect of dispute resolution.

The Technical Framework

The appointment process varies significantly between party-appointed arbitrators and presiding arbitrators. Bigovic outlined the straightforward approach for party appointments: “Once you decide who the person is, then usually you would shoot them an email and very, very easily explain who the parties are, what the dispute is about.” This initial contact includes conflict checks and availability confirmation whilst maintaining strict confidentiality protocols.

Institutional appointments follow more complex procedures. Leinwather, representing the Vienna International Arbitral Centre (VIAC), detailed their comprehensive process: “The board, we have 17 board members and we’ll identify two of the board members who will take a look at the case, the specific facts of the case.” These board members receive detailed case summaries and party specifications regarding nationality, language skills, or subject matter expertise requirements.

The institutional process includes creating shortlists of two to three candidates, allowing for rapid progression if the first choice faces conflicts. Leinwather emphasised the rigorous evaluation: “Sometimes there’s a joke within the VIAC board where if the amount of dispute in a particular arbitration is quite low, the individuals in the board will say it actually costs more money to decide who the arbitrator should be than the actual amount of dispute.”

Strategic Selection Considerations

The mystery of arbitrator selection lies primarily in the decision-making process rather than the procedural mechanics. Pustay stressed the importance of professional guidance: “What you should never, ever, ever, ever do is to go and appoint the arbitrator before you actually get an arbitration counsel, because that can actually screw up your case greatly.”

Several factors influence selection decisions. Practitioners consider the arbitrator’s known approaches, previous decisions in similar cases, and published views on relevant legal issues. Pustay noted the advantage in investment arbitration: “You have a lot of awards that are public. So you go and look, you know, what is the arbitrator’s view on umbrella clause?”

The dynamic between opposing arbitrators requires careful consideration. “If a claimant appointed someone who’s a heavyweight in international arbitration, you maybe don’t want to appoint a local arbitrator without an international experience,” Pustay explained, highlighting the importance of tribunal balance.

Commercial arbitration presents different challenges, with practitioners focusing more on jurisdictional expertise and language capabilities. Guest contributor Nina Jankovic emphasised: “In commercial arbitrations you’re more focused on specific knowledge of the legal system, of the jurisdiction, of the law of the seat.”

Academic Publications and Bias Concerns

The discussion addressed whether academics’ with published views result in the appearance of bias. Risvas argued that factual circumstances matter more than theoretical positions: “Perhaps the facts of the case matter more for the determination of the outcome compared to the law.” He emphasised that expressing legal views doesn’t necessarily indicate inflexibility in specific factual contexts.

From an institutional perspective, Leinwather clarified that institutions don’t examine pre-expressed views: “The institution won’t look at pre-expressed views. The institution will focus on the expertise, the technical knowledge, the timing, the nationality, the language ability.” This creates a fundamental difference between party appointments, where strategic considerations include published positions, and institutional appointments focused on qualifications and experience.

Reputation Versus Availability

A persistent challenge involves choosing between established names with limited availability and emerging practitioners who can dedicate full attention to cases. Pustay described problematic tribunal dynamics: “I’ve actually seen a case where the remaining two arbitrators were all well-known international guys who had no idea whatsoever about the applicable law. But they have known each other for over 30 years, and they basically decided on how the case will end up.”

Leinwather advocated for supporting younger arbitrators: “Anyone that we’ve appointed that’s of a younger generation but is sufficiently qualified has what we consider the requisite experience, we’ve had fantastic experience across the board because they really get into the case.” She noted practical benefits including earlier award delivery and greater responsiveness to institutional guidance.

The availability issue affects case progression significantly. As Jankovic observed: “We’ve had experience with very, very famous arbitrators who it took just ages to issue a decision. One year after the hearing on jurisdiction is just unacceptable.”

Institutional Diversity Initiatives

Leinwather highlighted VIAC’s commitment to expanding arbitrator diversity: “Last year we managed to expand the pool in Central and Eastern Europe. We appointed 35% more arbitrators from that region than we have ever done in the past.” This reflects broader institutional efforts to address both gender and regional representation in international arbitration.

The diversity push extends beyond demographics to experience levels. Institutions actively promote qualified younger practitioners whilst maintaining quality standards, recognising that fresh perspectives often enhance rather than compromise case outcomes.

Practical Implementation Strategies

Bigovic described collaborative approaches for presiding arbitrator selection: “You create a little list. So you choose three to five people. Then you ask the institution if they can put them in a single list and then you have to rank them.” This list system helps overcome deadlocks whilst ensuring both parties influence the final selection.

The ultimate decision often rests with clients, creating tension between professional advice and client preferences. Bigovic noted: “Even if you find that a person does not have really the technical expertise or perhaps the availability, ultimately it will be the client who decides.”

Conclusion

Arbitrator appointment combines technical procedures with strategic decision-making that can significantly impact case outcomes. Whilst institutional processes provide systematic evaluation frameworks, party appointments allow for tactical considerations aligned with case strategy. Success requires balancing reputation with availability, expertise with fresh perspectives, and strategic advantages with practical considerations.

The process remains partly mysterious because optimal selection depends on case-specific factors, tribunal dynamics, and often unpredictable human elements. However, understanding both the procedural framework and strategic considerations enables practitioners to navigate this critical aspect of international arbitration more effectively.

As Živković concluded: “It does depend on a lot of factors. How do you appoint and who do you appoint? But I hope that after the session today, it is at least a bit more clear to everybody listening and participating about how we get eventually to the decision.”