“Would you, dear arbitrator candidate, be prepared to meet with my client? They really want to know beforehand the person who will ultimately decide about the future of their company.” If a party’s counsel asks the potential arbitrator such a question at the end of a first telephone call, many will intuitively decline the request with a quick “No, that is impossible!“. Too overwhelming is the strict ban of ex-parte communications in international arbitration. But on second sight a more moderate reaction seems justified. After all, a party has a legitimate interest to know “its” party-appointed arbitrator in person instead of relying only on the advice of its counsel. And if the requested interview is conducted within certain boundaries, such interview does not call into doubt the impartiality of the arbitrator as it is recognized by numerous institutions and published guidelines. However, certain rules must be followed to safeguard the arbitration process. In some more detail:
A party’s ability and right to participate in the constitution process of the arbitral tribunal is a key asset of arbitration compared to state court proceedings where a pre-selected (and thus possibly unsuited) judge will decide the dispute. Accordingly, a party must be put in a position to make an educated choice with regard to the right person to nominate. Relying on a counsel’s advice is one viable option since the counsel is often an “insider” of the arbitration world and knows suitable candidates. However, it is understandable that a party wants to acquire a personal impression of an arbitrator before tasking him with deciding a dispute which might well fall in the “bet-the-company” category. It can only help the arbitration process if a party gains such personal trust in a future decision-maker; a trust which at the same time provides confidence in the entire process as such. For those reasons, an initial interview between the party and a potential arbitrator can make sense and it certainly does not qualify as a classic ex parte communication because the core arbitration is not yet carried out when the interview is conducted prior to the constitution of the arbitral tribunal.
On this background, it is not surprising that pre-appointment interviews are not per se forbidden or considered unethical. The most widely used and influential guidelines in this context are the “IBA Guidelines on Conflicts of Interest in International Arbitration”. Its so-called “Green List” determines in Rule 4.4.1 that no conflict of interest exists and the (potential) arbitrator has no duty to disclose a situation when “the arbitrator has had an initial contact with a party, or an affiliate of a party (or their counsel) prior to appointment, if this contact is limited to the arbitrator’s availability and qualifications to serve, or to the names of possible candidates for a chairperson, and did not address the merits or procedural aspects of the dispute, other than to provide the arbitrator with a basic understanding of the case.“
Similar and further guidance on communications between parties and (potential) arbitrators prior to the commencement of an arbitration is provided by other soft law, such as the ABA´s “Code of Ethics for Arbitrators in Commercial Disputes”, “CIArb Guidelines for the Interviewing of Prospective Arbitrators” or the “IBA Guidelines on Party Representation in International Arbitration”. The latter provide in Guideline 8: “It is not improper for a Party Representative to have Ex Parte Communications in the following circumstances: (a) A Party Representative may communicate with a prospective Party-Nominated Arbitrator to determine his or her expertise, experience, ability, availability, willingness and the existence of potential conflicts of interest. … (d) While communications with a prospective Party-Nominated Arbitrator or Presiding Arbitrator may include a general description of the dispute, a Party Representative should not seek the views of the prospective Party-Nominated Arbitrator or Presiding Arbitrator on the substance of the dispute.”
However, the above rules spell out a nice theory which still has to survive a harsh practice test if the pre-arbitration interview later becomes known to the other party, e.g. when such party is confronted with an unfavorable award which it seeks to challenge. It is obvious that the personal interviewing of a (potential) arbitrator carries risks and is open to manipulation. Deep-rooted (and sometimes justified) is the fear that the “interview” is indeed (ab)used to find out how the arbitrator-candidate will actually rule in the case or to provide the arbitrator with some extra-information about the case. While it stands to reason that the arbitrator candidate must not discuss the facts or the merits of the case with the party, the issue is how to deal with a respective suspicion that exactly this has been done in the interview. It is probably due to this suspicion which is so hard to rebut why pre-arbitration interviews are still rather the exception than the rule. Neither the party nor the (potential) arbitrator have an interest in putting the entire arbitration at risk because the other party later alleges improper discussions during a pre-arbitration interview. However, if the following five rules are observed such danger can be kept to a minimum:
(1) The candidate should make it clear in advance and in writing on which basis he/she accepts the interview. In particular, the topics of the interview should be defined both conclusively and in conformity with the IBA Guidelines. Such basis should be confirmed in writing by the interviewing party. In short: A paper trail is created to show the integrity with which the interview was conducted.
(2) The candidate must not be paid for attending the interview.
(3) The candidate should have an assistant attending and witnessing the entire interview. The assistant may take notes of the interview. Such notes will be regarded as disclosable to interested parties if appropriate. Again: A paper trail and respective evidence is created if the interview is later (ab)used to challenge the impartiality of the arbitrator.
(4) The content of the interview, as witnessed by the assistant, is limited to the following issues: Names of the parties in dispute and any third parties involved to allow a conflict check, general nature of the case to allow assessment whether candidate feels competent to hear the case, candidate’s background, qualifications for the case in hand and experience in the relevant field, published articles and speeches, availability and existence of conflicts of interest, prior service as arbitrator, language governing law, seat of the proceedings, rules applicable.
(5) The length of the interview should be determined in advance and be in proportion to the nature of the dispute. To this end, interviews should rarely be scheduled for more than one hour.
If those precautions are strictly observed, pre-arbitration interviews between a party and a potential arbitrator remain a possibility. If one takes the right of the party serious to participate in the constitution of the arbitral tribunal, one cannot rule out this option and request the party to delegate the selection of the party-appointed arbitrator to a seasoned counsel.