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This document is part of the ICC Dispute Resolution Library.
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Publisher: Image of Publisher which is The International Chamber of Commerce (ICC DRL)
Type: Books
Publication Date: 24 October 2022
Language: English
Table of content

Will the controversy over double hatting ruin arbitration?

1. Introduction

158.

The provocative and tongue-in-cheek tone of the question has prompted many to roll their eyes, either in disapproval of the inquiry or out of exasperation at made-up problems, a sign of a question worth asking. The short answer is: it may.

For the uneducated fashionistas among us, double hatting describes the fact that an arbitrator is also acting, or has also acted, as counsel or expert witness in a separate case, either concurrently or sequentially.

Though it has historically been common practice, and to some it may seem a requisite, for arbitrators to act as counsel (and vice versa), others have complained that such practice in investor-state dispute settlement (ISDS) is problematic because it may impair an arbitrator’s impartiality and bring disrepute to the system as a whole, for reasons we will further explore below.

When two thoughtful arbitrators and academics such as Professors Philip Sands KC and William ‘Rusty’ Park raise concerns about that practice, we ought to listen, take stock of the concerns and explore the means of addressing them. And this has to a large extent been done: the decisions addressing arbitrator disqualification show that the common wisdom has shifted from a dismissive determination that double hatting, as the norm, cannot be problematic, to a gradual acknowledgement that, in some cases, such a double engagement may raise actual or apparent conflicts. On that basis alone, the so-called controversy has been beneficial.

That said, as is often the case with ISDS, even when true problems have been identified, the terms of the debate have been highjacked, with the egregious cases treated as the norm, in turn giving shape to the evil arbitrator persona. As some seize on such discussions to unfairly impugn the honesty and motivations of all actors in the ISDS system, including arbitrators, counsel and some institutions, they imply that the system as it exists cannot be trusted to police conflicts

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