The Communication and Publication of Reasons for Decisions on Arbitrator Challenges: Increasing the Transparency of Standards and the Predictability of Decisions

Abstract

Challenges of arbitrators are among the most important events in international arbitration proceedings. Given their importance, they are a major target of the call for transparency in international arbitration.This article examines recent initiatives undertaken by a number of arbitral institutions to provide reasoned decisions to parties and arbitrators and to publish them for the benefit of the wider arbitration community. The author then focuses on the recent evolution in the rules and practice of the ICC International Court of Arbitration, which have evolved from a position where the communication of reasons underlying challenge decisions was considered contrary to the institution’s mandatory rules to a position where reasons are routinely provided on request.The author concludes that, whilst providing reasoned decisions is essential to foster their legitimacy and the trust that parties and arbitrators place in the process, only publication can achieve further goals, such as developing a jurisprudence on arbitrators’ independence and impartiality, enhancing the predictability of decisions and protecting the validity and enforceability of arbitral awards.To achieve these goals, publication should not be limited to succinct summaries, but should include a full account of the factual and legal background of the challenge.