Who Judges the Judges?

Why Arbitrator Neutrality Can Make or Break Your Case

1. Introduction

In international arbitration, parties may fight over millions—or even reputations that took decades to build. But long before a hearing or final award, one quiet factor already determines the integrity of the entire process: who sits on the tribunal.

Clients often assume that once their preferred arbitrator is appointed, the battle is halfway won. The law disagrees. Whether nominated by a party, appointed by an institution, or selected by a court, every arbitrator must meet one non-negotiable standard: independence and impartiality. Without that, nothing that follows is safe—from credibility to enforceability.

This article explores why neutrality is the backbone of arbitral justice, how conflicts are dealt with, when silence amounts to waiver, and what happens when things go wrong.

• Independence vs Impartiality: Two Pillars, One Principle

Although closely linked, the concepts target different risks:

• Impartiality deals with attitude—can the arbitrator approach the case without bias or pre-judgment?
• Independence concerns relationships—are there any ties to the parties, counsel, or subject matter that could influence the arbitrator?

Leading institutional rules, such as those of the ICC and LCIA, make both duties explicit and ongoing. The obligation applies equally to all tribunal members, including those appointed by the parties themselves.

• Disclosure: Not a Courtesy—A Legal Duty

The duty of disclosure is not a once-off box to tick. Under the UNCITRAL Model Law and most major arbitration rules, arbitrators must inform parties before and during the proceedings of any circumstances that could raise doubts.

Examples of mandated disclosure mechanisms include:

• LCIA: Written declarations of any potentially relevant circumstances.
• ICC: Disclosure of any fact that could raise “reasonable doubts” about impartiality or independence.

Full disclosure empowers parties to assess risk and act promptly.

• A Global Standard: The IBA’s Conflict “Traffic Lights”

To harmonise practice across diverse jurisdictions, the International Bar Association (IBA) Guidelines on Conflicts of Interest introduced a practical classification:

• Red List (serious conflicts; sometimes waivable)
• Orange List (requires disclosure; could be challenged)
• Green List (too trivial to affect neutrality)

While not binding law, the guidelines are now treated as the gold standard worldwide.

• How Challenges Work—and When Silence Costs You

The most common ground for challenge is lack of independence or impartiality.

• Institutional Arbitrations (e.g., ICC, LCIA). Challenges are resolved internally by the administering institution. If rejected, the complaining party must generally wait until the award to raise the issue before a national court, either to set it aside or resist enforcement.
• Ad Hoc Arbitrations: Without an internal mechanism, parties turn directly to the national courts of the arbitral seat under the relevant lex arbitri (law of the arbitration).

But here’s the trap: If a conflict is disclosed and a party does nothing, they may have waived their right to object later—especially in Orange List scenarios.

• Party-Nominated Arbitrators: Neutral by Law, Not Hired Guns

There is a common (but flawed) perception that “your arbitrator” is your advocate. While a nominating party may choose someone aligned with certain legal perspectives, the duty of impartiality is absolute.

Persistent criticism stems from dissenting opinions favouring the appointing side. Yet the legitimacy of party appointments relies on one truth: the arbitrator’s duty is to the process, not the party.

• Lessons from the Courts and ICSID

Recent jurisprudence underscores how seriously these standards are taken:

• Halliburton v Chubb (UK Supreme Court): The court highlighted the importance of transparency around multiple appointments, confirming that undisclosed overlaps can erode confidence even without proven bias.
• International Centre for Settlement of Investment Disputes (ICSID) Arbitration: High-profile disqualification attempts—such as in Abaclat, ConocoPhillips, Urbaser, and Suez—have shaped expectations around disclosure, repeat appointments, and perceptions of neutrality.
• These cases show the reputational and procedural consequences of overlooking conflicts.
• When a Challenge Fails—Is the Game Over?

Not necessarily. A rejected challenge can later support:

• An annulment application at the seat of arbitration, or
• Resisting enforcement under the New York Convention on grounds of improper tribunal composition.

In ad hoc cases, parties may go directly to national courts during the proceedings. Otherwise, they must proceed under protest to preserve their position.

Either way, a flawed tribunal is a ticking time bomb for the award.

1. The Takeaway: Neutrality Is Not Abstract—It’s Strategy

An arbitrator’s independence is not a theoretical safeguard. It determines:

• How comfortable your counterparty is,
• Whether your client respects the process,
• And whether your final award survives scrutiny across borders.

The question is not just “Who will decide the dispute?” but “Will their decision stand? And that is why choosing (and challenging) arbitrators is not just procedural—it is strategic risk management.

If you need tailored advice on appointments, disclosures, challenges, or enforcement implications, our arbitration team is ready to guide you—before neutrality becomes the Achilles’ heel of your case.