The Question of Systematic Appointments of Given Individuals by Investors or Respondent State Parties in Investment Arbitration
John Beechey, Niccolò Landi
The question of systematic appointments in investment arbitration remains a sensitive issue given the significance of the decisions made by tribunals seized of investment disputes. This article seeks to address the considerable body of criticism, some of it ill-informed, of the appointment process in investment arbitration and of systematic appointments in particular. First, the article places such appointments within the existing quantitative framework, noting that repeat appointments, of themselves, have been found insufficient to warrant an arbitrator's removal. The article then explores the possibility of systematic bias due to intellectual loyalty arising from repeat appointments in the context of an arbitrator's overriding obligation to remain impartial and independent in the course of decision-making. Third, the article discusses the arbitration-specific institutional factors which influence the repeat appointment process. It considers the role of compromise, exercised within the framework of party autonomy, as a factor contributing to systematic appointments. Lastly, it suggests that there might be circumstances in which systematic appointments of a particular individual are made precisely because of that individual's ability to instil confidence in the arbitral process.