Appointing Arbitrators: Tenure, Public Confidence, and a Middle Road for ISDS Reform

Abstract

When parties bring claims under investor-state dispute settlement (“ISDS”) procedures, who should serve as decision-maker? Relevant parties ask the question in different settings and with different criteria in mind. A party in a dispute, contemplating ISDS proceedings, whether by it or against it, likely will focus on the qualities of particular individuals available to serve as arbitrators. Party-appointed panelists charged under the applicable instrument with choosing a neutral or chair, and institutional appointing authorities charged with that task or with choosing arbitrators in default of party choice, will also turn their minds to candidate assessment. Different individuals or institutions might look for somewhat different qualities, but all who are called upon to make the choice will think about how best to assess the candidates.