TDM Special Issue on Arbitrator Bias
Article from: TDM 4 (2008), in Editorial
Bias: The Other Four-Letter Word?
"IMPARTIAL, adj. Unable to perceive any promise of
personal advantage from espousing either side of a
controversy or adopting either of two conflicting
Ambrose Bierce, The Devil's Dictionary
A lawyer is trained to cast a dispassionate eye on most aspects of human behaviour. Yet the question of bias in arbitrators is a topic which elicits passionate views, even amongst the professionally dispassionate. In this issue, we have tried to approach bias with an open mind, so to speak, and cover several angles, in an attempt to understand the nature of the beast.
Is bias the most inevitably human of conditions? Does it become part of one's very core and identity, not only as arbitrators or lawyers, but as individuals, as a consequence of factors largely beyond our control: the place where we were born, the culture in which we grew up, the education we received?
Legal systems have devised a series of tests to allow decision-makers to take a step back, recognise and sanction bias. The IBA Guidelines on Conflicts of Interest in International Arbitration and the ABA Draft Arbitrator Disclosure Report reflect practical attempts at negotiating the labyrinth. Contributors to this issue have prepared helpful comparisons of how these questions are approached in various jurisdictions. There are also practical reviews on what arbitrators can do to comply with disclosure requirements. Other contributions tackle the offshoot, developing notions of bias, notably 'issue conflict', which arises both in investment treaty arbitration and international commercial arbitration. Bias is an issue that is multi-faceted and forever unsettled, and where judicial and arbitral decisions at the most authoritative levels can sometimes appear steeped in emotion.
Are the legal tests sufficient? Can decision-makers ever escape from bias? We have brought in the perspective of a professional observer of the human psyche. Prof. Dr Dieter Flader of the Free University of Berlin examines the tests devised in English law and US law and wonders whether they properly recognise the human mind's experience and understanding of bias.
Everyone, whilst struggling with their own bias, has great difficulty coping with others'. We have looked at bias from both sides of the bench: how counsel deal with bias in an arbitrator; how an arbitrator deals with biased perceptions from counsel or parties - because he or she might not fit the predominant mold, be it gender-, age-, or nationality-wise, or because of perceived conflicts of interests.
Je tiens à souligner de façon toute spéciale la contribution de mes confrères civilistes et francophones à ce numéro. Ils ont été nombreux à relever le défi, plusieurs ont choisi de s'exprimer en anglais, et leur apport enrichit la perspective globale du sujet et s'inscrit dans l'esprit international de TDM.
I greatly enjoyed guest editing this Special Issue. My thanks go to Thomas Wälde and the TDM publishers for their support and assistance. Thank you also to Mike McIlwrath for the Editorial podcast. Finally, hats off to all contributors, who hail from several European countries, as well as Canada, the U.S., Russia, and Asia. They responded to the call for papers and ideas with great enthusiasm and professionalism and have created a thought-provoking issue. Your reactions and comments are gratefully received.
Enjoy this Special Issue.
Michael McIlwrath conducted an interview with Sophie Nappert, guest editor of this special issue on Arbitrator Bias. (Note that the interview was conducted over Skype, so the sound quality may not be of the highest standard).
Bias is "a little bit of a four-letter word" when it comes to arbitration, London practitioner Sophie Nappert tells host Mike McIlwrath in this edition of the IDN podcast. But bias also includes the basics about the process that parties and their representatives need to know: where the arbitrator is coming from, and the frame from which the arbitrator will view the issues. Sophie and Mike analyze parties' different cultural perceptions of arbitrator bias in international arbitration, leading to advice on how to deploy the "strategic use of bias" in their ADR practices.
The podcast cast be downloaded directly at the CPR website (www.cpradr.org) or via the iTunes Music Store by searching for "arbitration podcast".
We would like to thank the host of the IDN Podcast series Michael McIlwrath for suggesting and conducting the interview.