A Study On The Challenge Of Arbitrators In International Investment Arbitration

The challenge mechanism of arbitrators in international investment arbitration provides institutional guarantee for the independence and impartiality of arbitrators.The revision of the challenge of arbitrators is quite necessary as a result of the problems exposed in the current system.The standards,reasons and defects of challenging procedure of arbitrators have drawn widely discussion and have become the focus of the reform of arbitration rules.The reform of the mechanism of challenging arbitrators should focus on the independence and impartiality of arbitrators,supplemented by procedural provisions,and meanwhile make decisions of challenging arbitrators according to the specific facts of the case.Due to the comprehensive influence of the source,appointment mechanism and motivation of arbitrators in international investment arbitration,there are several situations in practice that affect the independence and impartiality of arbitrators and lead to the challenge of arbitrators,such as issue conflict,repeated appointment,role conflict.The core of the trial of challenge application lies in whether it meets the standard of proof required by the arbitration rules.According to the standard of proof,combined with the comprehensive analysis of specific cases is the fundamental way to examine independence and impartiality of arbitrators.When considering issue conflict,the academic opinions expressed by arbitrators and previous decisions on legal issues will not definitely be regarded as biased;however,in practice,it is difficult to identify the facts,which requires a comprehensive and detailed analysis;the simple number of repeated appointments will not be regarded as damaging the independence and impartiality of arbitrators,which should be analyzed in combination with other facts,such as the economic relationship,whether the appointment indicates that the arbitrators rely on the parties,whether the repeated appointment is the result of the previous existing relationship,and whether it will cause overlapping legal and factual analysis;it is impractical to avoid potential or actual role conflicts by prohibiting part-time arbitrators.In role conflict,we should make a comprehensive consideration of the comparability and similarity of legal issues to determine whether to damage the impartiality of arbitrators.Focusing on the independence and impartiality of arbitrators,the reform of the challenge of arbitrators should be placed under the framework of the independence and impartiality of arbitrators.Firstly,it is necessary to clear the definition and proof standard of independence and impartiality.The definition and standard of the current international investment arbitration rules are not clear,which can not give clear guidance to the arbitration practice.Secondly,introducing the "soft law" of the conflict of interest to provide guidance to arbitrators,which is conducive to arbitrators to make a preliminary judgement on their own behavior and to deal with the relationship with the two Parties.Also,it can promote the efficiency of the arbitration process in an indirect way.Third,we should draw up a code of conduct for arbitrators,and focus on improving the disclosure obligations of arbitrators,in which way could put forward the time node for discovering potential or actual conflicts of interest,and try to avoid the arbitrators who might affect the impartiality of the award to become a member of the tribunal,at the same time enable the two Parties discover the situation that doubts the independence and impartiality of the arbitrators as soon as possible,so as to balance the fairness and efficiency of the arbitration procedure.The problem mentioned above should be solved so as to establish a basis for the reform of the whole challenge mechanism.The reform of challenging arbitrators in investment arbitration then should focus on the procedure of challenging arbitrators.Justice should not only be embodied in substantive justice,but also procedural justice.There are some problems in the procedure operation of the current challenge procedure,such as the unclear time limiting,inappropriate challenging decision maker and low transparency of challenging decision.There is an urgent need to reform the challenge procedure to ensure the rationality of the procedure,and then to promote the role of the challenging mechanism of arbitrators.Specifically speaking,the challenge procedure determine a clear and reasonable time limit so as to prevent the tactical challenge from delaying the arbitration procedure;reconsidering who should decide the challenge of arbitrator,expand the right of the President of the World Bank or set up a special organization in the arbitration organization to determine the application,so as to prevent the suspicion of the fairness of the challenge decision that may be brought about which is made by the co-arbitrators.Improve transparency of challenge decisions to provide arbitration practice with reference.