Shany: Squaring the Circle? Independence and Impartiality of Party-Appointed Adjudicators in International Legal Proceedings

Yuval Shany (Hebrew Univ. - Law) has posted Squaring the Circle? Independence and Impartiality of Party-Appointed Adjudicators in International Legal Proceedings. Here's the abstract:

Two recent cases involving challenges to party-appointed arbitrators illustrate once more the inherent problématique of applying notions of judicial independence and impartiality that were originally developed with relation to national and international judges serving on permanent courts to party-appointed adjudicators - that is, to party-appointed arbitrators and ad hoc judges in international courts. Since, party-appointed adjudicators are often expected to be sympathetic to the positions of the party designating them, the very concept of party-appointed adjudicators may be anathematic to traditional notions of judicial impartiality. In this short note, I will argue that the institution of party-appointed adjudicator should be understood as a consensual deviation from the ordinary norms governing the operation of international adjudicatory mechanisms. This deviation represents a trade-off between two competing sets of values and interests: The increased control by the parties over the course of litigation facilitated by their ability to nominate adjudicators entails the sacrificing of some degree of judicial independence and impartiality of the appointed adjudicators in exchange for improved confidence of the parties in the adjudicative process and, as a result, greater inclination on their part to resort to adjudication. It would therefore be a mistake to apply the tests of judicial independence and impartiality developed for permanent national or international judges, or even non-party-appointed arbitrators to party-appointed adjudicators.