Wednesday, September 27, 2006

Are race and culture as decisive factors when appointing an arbitrator?

The success of the arbitration rests with the arbitrator, because a good arbitration needs a good arbitrator. Arbitrators are often party-appointed. When the parties are from diverse countries, and there are significant cultural and language differences between them, should an arbitrator's nationality, race or culture be a factor when choosing the arbitrators? Should that be the most important factor?

On the other hand, if there is to be one arbitrator only —from a neutral country, to be indicated by an appointing authority—, should one party necessarily challenge the appointment of an arbitrator who speaks the same language and is closer to the other party's culture and race, than to such party's own culture and race?

I don't know the exact answer. What I do know is that I have recently had an arbitral experience, where the appointed arbitrator was from a third country, a neighboring country of the opposed party of my client. The country of such opposed party is highly influential on the arbitrator's home country, both having the same heritage. What's more, the arbitrator's mother tongue was the same language spoken at opposed party's country. Yet, the arbitrator was very fair and balanced, and both parties received equal treatment.

My team and I did not assume that just because the arbitrator had cultural similarities —same heritage and culture, and same language spoken as opposed party and their advocates— the opposed party would have an advantage over us. We analyzed the arbitrator's background, his commitment to neutrality, and thought that he could do the job. And he did it (luckily for us and our client).

Any thoughts? Please write me.

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