IV Edición Revista Derecho en Sociedad - Ulacit

DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013
Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica
This last subject, dealing with the main issues around this paper, since it brought up
the questions whether the arbitrators that are unilateral appointed by a party(and usually,
unilaterally paid by the nominated party),have the incentives to be ‘loyal’ to their nominees
and ruled in their favor, in order to receive future appointments by the same material
party(the company) or by the same formal party(the law firm representing the company).
Problematic Situation in Multi Arbitrators Tribunals
The question around the (perverse?) incentives that unilateral appointed arbitrators have
has been set up. In the following section, the problems that multi arbitrator tribunals
composed under a scheme of having a panel of three arbitrators, composed by a unilateral
appointment made by each party of the dispute, and the third arbitrator nominated
between the two party appointed arbitrators.
Problematic situations that under the previous scheme detailed arbitrators might face
during Arbitral Proceedings are exposed under this section. It is not an exhaustive list,
since it would be impossible to record all the potential behaviors without leaving some
aside. Some of these situations are supported in the work of experienced practitioners 35 ,
while some are logic deductions, or anecdotic experiences. In any case, the section gives a
significant list, in order to make a-­‐valid-­‐pause, and analyze if some of the problems can be
eliminated, or, reduced by changing the appointment method.
General Remarks
One of the advantages of arbitration over litigation is the possibility of selecting the panel
of persons who will hear and decide a dispute, in contrast with the already selected staff of
35 van den Berg, at supra note 8; also Arroyo at supra note 8; and Kirby, Jennifer (2009) 'With Arbitrators,
Less Can Be More: Why the Conventional Wisdom on the Benefits of having Three Arbitrators may be
Overrated’ 26 Journal of International Arbitration.
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