Reconciling Conflicting Rights in International Arbitration : The Right to Choice of Counsel and the Right to an Independent and Impartial Tribunal

Each party in international commercial arbitration holds a number of fundamental rights, in particular the right to equal treatment and the right to an adequate opportunity to present its case, including the right to counsel of choice. A further fundamental right is that arbitral tribunals be independant and/ or impartrial throughout the arbitral process. An additional potential right is the right under most arbitral rules for each party to select one arbitrator where a three-person panel is to be utilised. While these are clearly accepted rights, what happens if and when they clash? This article seeks to analyse the nature of these rights and how they might appropriately be reconciled. It does so through a discussion of two recent ICSID cases that came to conflicting conclusions in situations where a tribunal is first constituted with sufficient independence from existing counsel, but new counsel are then brought in who have a closer relationship with one or more tribunal members and counsel's presence is challenged. The article argues that it would be an unacceptable defect in the procedural justice of international arbitration if this could only be dealt with by a challenge to an already functioning tribunal. If the relationship is serious enough, new counsel should be prevented from being involved. This approach can be justified through implied limitations on the express rights themselves, namely, a party cannot choose either counsel or a tribunal member that would create an inappropriate relationship undermining the tribunal's qualifications under whatever test of impartiality and independence the relevant lex arbitri and arbitral rules prescribe. This article first appeared in: (2010) 26 Arbitration International 597