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
judges that court system offers. As a consequence, each dispute that is to be ventilated in
Arbitration Proceedings will have an specific panel to deal with the complications of the
case. Hence, the constitution of the tribunal is of vital relevance.
Parties have in mind one thing: winning the case 36 . It would be naïve to think otherwise.
The repercussion of selecting a non-­‐biased arbitrator over a biased one is determinative of
the dispute, because acting in one way or another will affect the arbitrator`s credibility, and
in last instance, his or her capacity to persuade his or her colleagues.
Arbitrators that form part of Tribunals in International and Local Arbitrations, are
expected to be neutral 37 , independent and impartial. The common scenario is to have a
tripartite panel, where each side of the equation has selected one, and the two party
appointed arbitrators agree in the name of the chairperson. The parties are jointly
responsible for the costs of all three arbitrators, subject to any ultimate allocation of costs.
Furthermore, all of the three arbitrators are expected to be neutral, independent and
impartial.
For the appointing party, the selection of an arbitrator will consume a considerable amount
of time 38 , research about the capacities of potentials arbitrators will be necessary previous
the appointment. Not to forget, that the nominee has to understand the factual issues that
are going to be presented. Furthermore, it is logical that the appointing party will try to
select an arbitrator that will be sympathetic to the appointing party views, which does not
necessary means that will not be carrying all of its duties with diligence, impartiality,
independence, and neutrality.
36 Paulsson, Jan (2010) 'Moral Hazard in International Dispute Resolution' 25 ICSID Review, at 11.
37 Of course, like everything in life, there are exceptions. In the United States of America, there exists a
somewhat common practice of having non neutral arbitrators panel, to resolve the disputes. For further
information, please refer to Chernick R.; Gaitis J.M.; Davidson R.B. (2006) 'Non Neutral Arbitrators' 3
Transnational Dispute Journal.
38 Guides for the proper selction of arbitratos has been created by practitioners. One of this was created by
Bishop and Reed, supra note 10.
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