Introduction

Bias challenges are part of everyday life in international commercial arbitration (ICA). ICA lawyers are now very sophisticated in their use of challenge as a means of delaying proceedings and denying the other side the arbitrator of its choice. There are various causes and effects of this phenomenon, but on balance it seems that the rate of bias challenge in ICA has increased for mostly economic reasons: from the perspective of the aspiring arbitrator, bias challenges are a valuable weapon against the cartel of ‘grand old men’ (and women) who get most of the appointments as arbitrators; and bias challenges have a retail aspect in that, from the client's perspective, they are a procedural device that can be deployed with great effect. There are therefore aspects of ‘generation conflict’ and ‘supply and demand’ to bias challenges in ICA.

Experience has shown that investor–State arbitration (ISA) is not immune to these forces. There has been a gradual increase in the rate of bias challenge in ISA proceedings in recent years. Examples of bias challenges in ISA can be found in challenge decisions under the Convention on the Settlement of Investment Disputes between States and Nationals of other States, such as Amco Asia v. Indonesia, Vivendi Universal v. Argentina, Suez v. Argentina, Generation Ukraine v. Ukraine, and Zhinvali Development v. Georgia. The challenges in these cases were all predicated upon either relationships between the arbitrator and a party or its counsel, or the arbitrator's apparent preference for one party over the other. These two broad sets of facts make up what can be called the ‘common garden variety’ of bias challenges in ICA. In the sense that most of the reported cases have been of the common garden variety, the pattern of bias challenges in ISA reflects the experiences of lawyers and arbitrators in ICA.