The Death of the Two-Headed Nightingale: Why the Paulsson--van den Berg Presumption that Party-Appointed Arbitrators are Untrustworthy is Wrongheaded

Abstract

Two of the most well-regarded and distinguished members of our profession – Professors Jan Paulsson and Albert Jan van den Berg – recently authored articles that seemed to presume that party-appointed arbitrators are untrustworthy and will violate their mandate to be and to remain independent and impartial. Their articles attacking party appointments and dissenting opinions, respectively, assume a lack of good faith on the part of party-appointed arbitrators. This article critiques certain shortcomings in their theses and further clarifies the importance of party-appointed arbitrators and dissenting opinions in international arbitration. As the well-established right of the parties to choose the arbitrators and the ability of a member of a tribunal to express disagreeing views in a dissenting opinion are significant elements of perceived legitimacy, this article explains that restricting them, as proposed by Paulsson and van den Berg, positively would impede the further development of the field.