The Ailing Arbitrator — Identification, Abuse and Prevention of a Potentially Dangerous Delaying and Obstruction Tool

Abstract

This paper deals with the appointment of an ailing arbitrator, either unintentionally or as a very subtle guerrilla tactic, and the subsequent consequences. The consequences might be a delay or even an obstruction of time- and cost-efficient arbitral proceedings or an outcome that might be subject to legal recourse under Article V of the New York Convention. The author discusses the phenomenon of the ailing arbitrator in light of case law and arbitration practice as well as in light of national arbitration laws and institutional arbitration rules that provide a regulatory framework to prevent the appointment of arbitrators who are physically or mentally unfit or for their removal from the arbitral tribunal. The article also warns about stereotypes to be avoided when dealing with elderly arbitrators and any attempt to cynically use any such stereotypes to question unfavorable arbitral awards by blaming them on the alleged unfitness of an arbitrator. The author concludes that arbitral institutions should use their powers consciously in the appointment process as well as in any removal process. The parties should assist arbitral institutions by explaining early on what the case is about and what is expected from arbitrators. Arbitrator candidates should make sure that they have a full picture of what the case is about prior to accepting serving as an arbitrator, in particular if the case has the potential to drag on and be work-intensive. Also some critical self-assessment by more senior and fragile arbitrators of what is still doable and what might endanger the reputation of a life-time of achievement would often be helpful.