Under Rule 5.4(d) of the CPR Rules for Administered Arbitration of International Disputes – the parties have agreed to a three-member tribunal and two of those arbitrators will be appointed by the parties without any information which party designated each of them.

Paul Slovic, a founder and President of Decision Research and Professor of Psychology touched on a psychological trait, which is that human collect and organize the data quickly and without much reflection, are vulnerably simplify complex judgments into painless trade-offs.

There is an affect heuristic (or the tendency to “go with your gut”) – this phenomenon is relevant to the debate over whether party-appointed arbitrators in international arbitrations are prone to partial or unethical decisions due to sub-conscious or conscious biases and whether the screening of arbitrator appointments would be effective to implement.

In a survey co-conducted by Queen Mary and White & Case LLP, 76% of respondents favored party appointments. Choosing an Arbitration lawyer also remains one of the top three most valuable attributes of the system. Only sixty-six percent (66%) of arbitrators favored unilateral appointments, however, whereas eighty-three percent (83%) of practitioners supported it.

Nevertheless, neither side really considered screening arbitrator appointments as a potential compromise solution. The CPR has potentially originated a way to make sure impartiality and procedural legitimacy while preserving the traditional party appointment process.

No reported arbitrations exist to date where arbitrators were appointed in this manner because of the novelty of the CPR Rules. There will surely be approaching obstacles, most particularly concerning arbitrator interviews, discovery of the constitution of the tribunal and the challenges of arbitrators.

With future advancements in cognitive research, users and attorneys in the field of international arbitration may one day better understand the effects of affiliation and judgment. Until then, however, the CPR’s screening of arbitrator appointments may be a useful compromise to be emulated.

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