12 - Arbitrators

Summary

The role of international arbitrators has been a topic of interest for years to an increasingly broad (and more critical) audience. In particular, investment arbitrators have faced criticism for allegedly having a financial interest in the existence of investment arbitration and a general pro-business bias. Unsurprisingly, the new rather critical public perception of arbitrators does not fully coincide with the self-conception of many arbitrators. The article describes the historical development of arbitration from the early days of the “grand old men” whose function as international arbitrators was associated with regulatory autonomy, prestige and exclusivity to the expansion in the number of arbitrators by the 1980s, and expansion that continues to this day. The newer generation is characterized by more entrepreneurial thinking and more difficulty in keeping up the “peer group control” that had been used to preserve the informal (and arguably at times antiquated) Code of Conduct of International Arbitration. Even now, in the 2000s, there is a lack of geographic diversity as well as an underrepresentation of women, but there is also hope for increasing diversity in light of institutional efforts. Some arbitrators still see themselves as guardians of international public policy. A more humble approach certainly ties in better with the legitimate expectations of the users of arbitration, who wish to see their dispute resolved in cost- and time-efficient proceedings safeguarding their procedural rights.