Worth Reading, Worth Considering: Selecting the Right Arbitrator
One of the most renowned full time arbitrators of our time, Mr Pierre A. Karrer, has “disclosed” the way he sees and handles certain issues in international arbitration in the form of a book interview raising 1001 questions and providing 1001 answers (Introduction to International Arbitration Practice, 1001 Questions and Answers, 2014, Kluwer Law International).

When appointing an arbitrator it is certainly of importance to ensure that the arbitrator will be independent and impartial. Apart from that, a number of procedural and other issues may already be known that will most probably arise in the course of the arbitration proceedings and will have to be handled by the arbitrator(s) (which may very well influence the final outcome of the case). It is therefore of utmost importance to be able to preduct how an arbitrator thinks and how he / she would probably handle such a relevant issue. A typical solution to this is to review the numerous works published by the given arbitrator (which in Pierre Karrer’s case commence in 1968!), however, now it is also worth to consult Mr Karrer's very practical advice provided in the book.
 
For example, his approach to the question of applicable law is rather relaxed. He says that at the outset of an arbitration it often happens that parties to an arbitration get overly excited about the question of the applicable law. So, if you have a dispute that will involve this question and you consider appointing Mr Karrer as an arbitrator, any submission to that extent might be viewed by Mr Karrer as the research product of some younger lawyer in the team that “needs to be sold to the client” and then “to show off the research in a written submission on the applicable law” (p. 107 of the book).


So, if the question of the applicable law arises in your case, the best one can hope from Mr Karrer is to get an “order to assume that the applicable law is the law of X” (p. 108 of the book). The innocent question raised thereupon is: “If they are ordered to assume, will the Parties not know that the Arbitral Tribunal has made up its mind?” Mr Karrer’s answer to that is: “The Parties can only guess, at their peril. One should keep them guessing. If they guess wrongly, so be it” (Answer 441, p. 108 of the book).
 
Guessing through a number of years of proceedings might be a costly exercise. Thus, when it comes to the appointment of an arbitrator, parties might be well advised to make the right choice for their case at hand. It is thus important to carefully select the arbitrator at a very early stage and to have a good idea as to what the arbitrator will be up to. What a pity that there are not more such publications of various arbitrators. This would clearly make the selection process and the predictability of the conduct of proceedings much easier...


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