Published 24 November 2016
One of the key advantages of arbitration over traditional adjudication is party autonomy: the parties can choose who will hear and resolve their dispute. This choice often, but not always, includes discretion to appoint a non-lawyer as arbitrator. This paper conducts a summary exploration of the potential effects of appointing non-lawyers as arbitrators in three-member international tribunals that are “mixed”, i.e., include one or more lawyers as arbitrators. In this context, “non-lawyer” will be treated as synonymous with “technical expert”, as the presence of a layperson on a tribunal without any specialized knowledge connecting him or her to the dispute is rare.
The discussion focuses on international, as opposed to domestic, commercial arbitration. In that context, and for reasons mentioned below, non-lawyers are appointed far more frequently as co-arbitrators than as chairpersons of three-member panels. The analysis, therefore, addresses mainly their potential effects on tribunal decision-making in that role, although it addresses briefly the implications of a non-lawyer presiding over a mixed international arbitral tribunal.
The paper proceeds in three parts. First, it summarizes the appointment of non-lawyers under arbitral rules and in certain specialized fields, such as construction. Then, it highlights legal strategy considerations that often are implicated in making arbitrator choices to assess the potential impact of one or more non-lawyer experts on tribunal deliberation dynamics. Those considerations are presented in the light of extensive psychological research into the process and pitfalls of collective decision-making. The paper concludes that the appointment of a non-lawyer in a mixed tribunal, if permitted under the applicable laws and arbitral rules, is not unequivocally the wrong choice as conventional wisdom might suggest. That said, appointing parties should remain aware that the appointment of a non-lawyer on a mixed tribunal has the potential to disrupt the tribunal’s deliberative balance to the detriment of the appointing party, especially if the other two tribunal members are lawyers.
Footnotes omitted from this introduction. This paper will be part of the TDM Special Issue on "Non-Legal Adjudicators in National and International Disputes" - more information: https://www.transnational-dispute-management.com/news.asp?key=1626