Independence and Impartiality in International and Investment Treaty Arbitration (14/06/21)

a very warm welcome on a very warm afternoon here in london to the school of international arbitration's co-curricular seminar on independence and impartiality in international and investment treaty arbitration we are delighted to see that so many students practitioners colleagues and friends of the school of international arbitration have joined us from all over the world for today's seminar i am anna howard and i'm a postdoctoral researcher at the school of international arbitration dedicated to the research and teaching of international dispute resolution the school of international arbitration was founded back in 1985 by professor julian liu and professor roy goode since its establishment over 4 000 students from over 110 countries have graduated from the school and 50 phd students have successfully completed their doctoral studies many of our students go on to work in dispute resolution as lawyers arbitrators academics or serving in international organizations we are very pleased to see many alumni joining us today i am delighted to now introduce our exceptional and experienced panel for today's seminar first we travel virtually to madrid from where we are joined by dr gabriel bottini gabrielle is a partner in the madrid office of udia menendez and is a specialist in international arbitration and public international law gabrielle has extensive experience of investment treaty arbitration both as a lawyer and arbitrator gabrielle was the first national director of international affairs and disputes of the treasury attorney general's office of argentina representing the country in arbitrations administered by a variety of institutions gabrielle has also published extensively on arbitration and international law issues and is a regular speaker at conferences and seminars on arbitration and international law we now move from madrid to paris from where we are joined by giselle stevens tube chazelle stevens chu is a dual qualified french avalcar and english solicitor advocate with over 16 years experience in international dispute resolution giselle has recently launched steven's chew dispute resolution a paris-based dispute's boutique law firm before launching her firm chazelle practiced at freshfield's brickhouse derringer in the international arbitration group first in london where we met and later in paris council chazelle has deep expertise in both international commercial arbitration and investment arbitration and has been recognized as a future leader by who's who legal arbitration chazelle is also a board member of arbitral women and a member of the steering committee of the equal representation on arbitration pledge giselle regularly publishes and speaks on international arbitration and international law we now move from paris back to london from where we are joined by monty taylor monty taylor is a partner in the london office of arnold importer where his practice focuses on international arbitration monty has extensive experience representing clients in both commercial and investment arbitration covering a wide range of sectors and he has been recognized as a future leader by who's who legal arbitration prior to joining arnold and porter monty served as legal counsel to exit at the world bank in washington as legal counsel at exit monty acted as secretary to the tribunal on numerous exid convention arbitrations monty also regularly lectures on international arbitration including we are fortunate to say at queen mary a very warm welcome gabrielle chazelle and monty and thank you for sharing your insights and experience with us today i shall now pass over to professor stavros breckulakis the director of the school of international arbitration who will introduce the important and intricate topic which is the focus of today's discussion for most of you in the audience i suspect that professor brecholakis needs little introduction suffice it to say that he is a professor in international arbitration at queen mary university of london where he teaches courses on international commercial and investment arbitration he also serves as an arbitrator and is regularly listed in who's who legal arbitration professor breckulekis has published widely on arbitration and has been named as a thought leader in arbitration by global arbitration review over to you professor fletcher lakis and i thank you very much for this very kind introduction and a warm welcome to our panelists and our audience tonight i'm delighted to moderate with another discussion of today's seminar on the topic of of international arbitration and impartiality especially focusing on investment treaty disputes as we all know the dispute resolution system of isds and i will refer to invest investment treaty education and isds as a kind of shorthand tonight has been at the heart of continues sometimes hit its debate in particular in the last decade and is currently the subject of uh reform proposals some of which include a shift from tribunal-based to court-based adjudication of all range of investment treaty disputes now these proposals are partly in response to accusations of isds lack of impartiality accusations include that isds is structurally and systemically biased typically in favor of investors and against states these are also accusations there are also accusations that their financial incentives including incentives for future and repeat appointments that influence the manner in which arbitrators decide ies disputes a response to these a number of institutions who play a very important role in the field of international arbitration have taken initiatives to regulate the conduct of arbitrators and enhance confidence in the decision-making process in ists a notable and more recent example here is the code of conduct for adjudicators in investor states dispute settlement which was published by the secretariats jointly of the international center for settlement of investment disputes they're well known to everyone exit and uncetrol and includes a number of disclosure requirements for arbitrators which arguably go along our way further than the requirements for disclosure under the iba guidance and conflicts of interest now very interestingly as well the code places a limit on multiple roles on the individuals acting as arbitators prohibiting them for double hunting under certain circumstances at least so there's a there's an assumption that drives this new regulation that there is some truth in some of the concerns that have been mounted against arbitration against investment dispute settlement in terms of lack of impartiality on my part i always thought that accusations to the effect that financial incentives and repeat appointments are mainly driving arbitrators contact were always too simplistic to capture the complex nature of decision-making process i'm trying to speak here from experience in my work as an arbiter but also from the preliminary findings of our large scale empirical project which anna myself and other colleagues from queen mary and cardiff university are currently contacting and very let me allow me very briefly to say that we've been interviewing a large number of experienced arbitrators reaching now 100 interviews and the evidence that comes out from the interviews is that arbitrators are not really driven by financial incentives i mean they accept that they may there may be some unconscious biases as we all have we all come with baggage as many of the interviewees say including people that decide in traditions but they all confirm and genuinely in my view that they're all striving to do the right thing which is to come to decision on the basis of the facts and the applicable treaty again viewing these facts and constructing the the treaty through the lens of their personal biases so here is my opening statement which i will first put to monty taylor money do you think that his concerns and indeed accusations uh about lack of impartiality and especially because of the party appointed system in isds are fair or are exaggerated as i said i think it depends on what you mean by a lack of impartiality in this context and i think there is some muddiness when we talk about these issues and i query whether we're talking about partiality with respect to the disputing parties themselves or with respect to specific issues legal or otherwise because if the question is whether repeat appointees may be partial to their appointing party that's inherently tricky to assess because we're being asked to distinguish between on the one hand an arbitrator holding views that might be beneficial or sympathetic to an investor or a state and on the other hand an investor being partial towards their importing uh their appointing party itself in my experience and it sounds like it's shared with yours and with the research that you and the center are doing it's rare for an arbitrator to actually be partial towards an investor or towards a state and in my experience i have very rarely seen anything that could even approach that and to the extent that it does it tends to be obvious and and not benefit the appointing party in question we all remember with groans those bad questions you might hear in a in a hearing of course who knows whether that's indicative of a broader attitude but there are occasionally snippets that you hear in the context of hearings that create a concern from time to time but the more likely scenario in my experience is that an arbitrator may hold views that would be sympathetic to the treaty interpretation arguments of an investor or a state and that takes us back to the distinction i flagged at the outset is it partiality to a party or to a view and if we're in the context of partiality to a view that's often described as issue conflict which is also a difficult concept because pre-judgment of a factual question application of lord of facts i would agree that's problematic and enters into the world of of of pre-judgment that could be grounds for concern but the question i have is would a consistent ruling on a legal question be equally problematic or would it simply be a consistent finding which some commentators long for in isds that that very form of consistency and of course there's a difference between consistency through fealty to case law if a system of precedent is created and fealty to one's own views but i do feel a little bit of friction between those those two different types of of uh of of comments or concerns in different contexts but i'm sure my fellow panelists will have views on this i i feel that the question is the party autonomy is a broader one and i'd be fascinated to hear the views of the panel on that as well well thank you monty i mean we will come probably to the question of party autonomy later on but i just want to dwell on this distinction that you made between partiality of your views as to a certain issue and views as to a certain party and i wanted to ask zizelle in relation to something that you also said well why is it problematic if someone has a consistent view and a legal question and i want to ask yourself is not exactly what judiciaries are supposed to do is that they decide typically on the basis or on the back of consistent jurisprudence on something and if someone is selected to act as an arbitrator because of his or her consistent views of that what would be a problem about that why do we call it issue conflict inhabitation and we consider it problematic but it might be perfectly acceptable in the context of traditions well i i think you've you've really hit the nail on the head here and and sometimes i i wonder whether we apply uh under unduly stringent standards in the context of iscs and investment arbitration when compared to what actually happens every day in the in the ordinary state courts where you know judges are you know all judges are human beings they they have their own views uh you know on legal questions and and also occasionally political views uh and no one seems to question their impartiality on that basis so i think i think there has to be a bit more caution a caution caution applied here and i think monty you know drew the distinction actually between you know your capacity to maintain an open point of view on a particular question that you have to have to decide based on a particular set of facts as opposed to your your general views on uh points of law uh which uh you know essentially uh a more consistent application of the law and greater consistency in arbitral jurisprudence and would you think chazelle um that the chairperson plays a particularly important role in ensuring impartiality and if so how does the chair fulfill that role um well the the the chairperson uh obviously is the master of the ship and has de facto or even express control over the proceedings and the decision making process so the chairperson has an extremely important role to play in in guaranteeing impartiality on the tribunal and i think justifiably so some have called for enhanced standards of impartiality and indeed disclosure on the part of chairpersons for that reason and what that means in practice or on a tribunal is that the the chairperson on the one hand has a special duty to you know ensure a balanced discussion uh and to engage with both side views both parties views but also really engaged with with occur arbitrators use to build a consensus but on the other hand i would say the president also needs to maintain some degree of independence from his or her co-arbitrators in order to to maintain that impartiality and uh to to maintain control of the decision-making process there's there's actually an over to dictum from the swiss federal tribunal which i i particularly like in this context which is that the uh president the presiding arbitrator maintains the intellectual mastery over the outcome of the of the of the proceedings whereas the co-arbitrators just contribute to the decision-making and so it's really important to engage with your co-arbitrators but maintain the requisite intellectual distance and to form one's own view and i think what that means in in practice is yes there must be collegiality on the tribunal but collegiality has its limits particularly if you have co-arbitrators who are not necessarily as partial as they should be and in practice when it comes to deliberations and drafting at the arbitral award well we all know that in theory the presiding arbitrator holds the pen on the award in practice it doesn't always happen like that and busy arbitrators like to split the work uh but uh at all times even if if uh one of the arbitrators may take uh control of the draft or sort of take over uh an aspect of a case or an aspect of the drafting of the award because of you know particular availability or expertise but it is incumbent on the presiding arbitrator to maintain control of the decision-making process of that you know on that particular issue there should not be wholesale delegation of aspects of the decision making so i think i would really summarize that by saying the presiding arbitrator is not just an umpire but must form its own independent view i think you make a very valid distinction between the role of party appointed arbitrator and presiding arbitrator and i wonder whether gabriel you have a great experience like involved as arbitrator and council do you recognize this distinction in the way the tribunals deliberate the way the tribunals conduct the process and if you think that there's a special role to be attached to the presiding arbitrator i wonder whether the special role can translate to his or her duty of impartiality yes thank you very much yes of course i i do see uh that position and actually uh i've seen very prominent arbitrators in the liberations actually expressly saying that they see their view as someone that must make ensure that the uh arguments of the party that appointed them are presented and are considered um in in a fair way and personally i think that that's a very respectable and honest position which again um some prominent arbitrators are very open and and say that's the way party appointed arbitrators should uh should act i personally don't share that view i think not only because of the illegal reason i think the standards of impartiality and independence are the same for the three arbitrators and i don't think we should make a distinction there but also because i think we should strive uh that the arbitrators uh consider uh the three of them consider and address the arguments of both parties in a similar way so i think that's the idea i know that between the idea one real world is there's a difference but still i think should try to obtain that but again i think that the other position is a respectable one i think it's helpful actually to have an arbitrator uh to present and actually uh arbitrate us and and i don't i don't like to offend any council but sometimes arbitrators can be better counseled for the parties and can present the arguments in a deliberation in actually a more cogent way so that's helpful but but i i still do prefer that arbitrators act uh again are uh independent and impartial in the same way of course there is uh and i'm there i agree with giselle a special role for for the president of the tribunal and uh and actually it's very rare i think for for the uh the president to uh let go uh the pen they they usually are the ones that draft the awards and of course they have a privileged position in in many respects and i think uh that's uh of course the nature of the game but again i would say that he is subject to the same standards uh as the the rest of the the co-arbitrators gabriel i i'm i'm grateful to you for sending out the two different approaches that some arbitrators take you say that i tend to take a view where party appointed arbitrators are indirectly the same expectations to act as if not really remembering who appointed them i think if i translate what you just said correctly if i if not please correct me but then you very openly said that there's another approach which you said it's a valid approach that some are dictators without being partial they will probably take a slightly different approach in the sense that they will make sure that at least the case of the party were appointed is properly ventilated in the deliberations and i don't know whether i summarize it two different you know approaches taken by party appointees rightly that's that's correct yes and if that's the case which is in again i recognize in practice i wonder this whether the fact that the system of arbitration is quite open allowing both approaches to take place and we haven't actually come to an understanding let alone an agreement of which approach is to be preferred or indeed expected i wonder whether the party appointed gravitational system allows for so much uncertainty into the system and depends on the preferred personal views of individuals who are appointed as party appointations to take different approaches and whether there's any problematic situation arising out of that mondi do you do you think that there might be an issue there in relation to the fact that both approaches are open and considered potentially unproblematic in terms of impartiality standards the difficulty i have with there being concerns about it is that there is a special alchemy with every tribunal and an arbitrator can bring a certain approach to deliberations and whether or not you have a difficulty with that approach it will be policed in a way within the deliberations and whether it's through the chair or whether it's through the the culture the community of those three people sitting in that room may well respond warmly to that sort of approach where you have an arbitrator that presents the position of the the party that appointed them or they might respond poorly so it's difficult to be bright-lined about it because i don't necessarily see that approach as creating a a problem inherently within the deliberations and it is something that could quite easily offend or trouble at a lower level the tribunal that's that's hearing a particular approach so i i tend to have the same well not concerns but i'm not as in favor of that approach like gabrielle but i'm not sure if it's necessarily something that is inherently problematic because realistically it's a part of the history of arbitration and and there are some forms of arbitration where you do have more of a culture of particular arbitrators being appointed by a party and there being almost an expectation that they will act as a pseudo advocate within a court system tribunal system so i in my experience dealing with deliberations haven't seen it being a problem in the sense that it's not necessarily effective so i don't think it necessarily needs to be regulated which i realize is going slightly off piece from the question you asked me but i'm not necessarily i don't necessarily see a problem inherently with the two different approaches oh absolutely and i i understand and i agree with the point that you say that there are some inherent uh safeties and safety nets included in the system especially in the deliberations that would not allow an arbitrator a party appointed arbitrator to take a different approach to um let's say um take a step further than what is expected from them so i don't i'm not so much concerned as to whether the outcome will be tainted i'm just asking whether the fact that we have a wide open system which allows different views might be difficult to reconcile with consistency in terms of decision making to give you an example in judiciaries we all know and we all expect every single charge to exhibit the same approach to decision making taking a a an arm's length dispassionate approach whereas in arbitration we say that we understand if a party point arbitrator somehow takes a more um an approach that will make sure to ventilate the case of the parties and where these different standards are to somehow disturb the balance of decision-making and the expectations of the parties i wonder whether zizelle has any views or any comments from that um i i certainly have views uh and also sorry to interrupt you this is that maybe that's another thing that you i would be grateful if you can bring to the discussion whether with your discussions from clients you sense that they have a sense of what kind of arbitrators they would prefer depending obviously on the case but it seems to me that clients becoming are becoming very sophisticated right now and they come with views as to what kind if not what specific person individual aggregator they want to avoid whatever type of architect they want to appoint well i think it's fair to say that clients are still by and large uh very keen on party appointments and being able to select uh a member of the tribunal uh and so i think that reflects an inherent feeling or impression that that arbitrator will play some role in ensuring that their their case and their position is probably heard and understood uh that the question and and i should say i think it's it's it's it's a justifiable concern uh in an international arbitration in an environment where there are potentially uh different legal cultures at play uh you know for multi-jurisdictional you know requests to different applicable laws different technical issues uh and so on and so forth uh and and so i think that that participates to the confidence that parties may have in the process to feel the feeling that their case will be properly understood the question then becomes how active are all the party appointed arbitrator must play and uh as gabriel has has pointed out there are different approaches um and i think one one issue i see is that you know there's a real spectrum of behavior of different there's a real range of different behaviors uh along the spectrum and some of it's acceptable some of it lesser i think the position that gabriel described of the party-appointed arbitrator that ensures that their party's cases is properly heard and understood that's obviously clearly within the realm of the acceptable where things become more problematic is when the arbitrator becomes an advocate or actively is actively seen to be maneuvering the case in a particular way and and i've actually seen both types of behavior on tribunals i've seen i've seen you know just to put it very concretely an arbitrator intervene uh you know on i suppose in favor in support of the party that's appointed them to try and rebalance the discussions when they feel that you know perhaps there's been too aggressive questioning from the from the other co-arbitrator or there's a point that's not been properly understood but then i've also seen party appointed arbitrators you know practically take on the role cross-examining uh cross-examining uh the the the opposing that the party opposing uh their appointing party uh and and really formulating questions in a way that that shows that they have a have a close mind to the issue and so i think in that context if we all accept that the party appointment system induces some form of unconscious bias and therefore some some conduct you know there's a spectrum of behavior in in support of uh the appointing party then would it be helpful to perhaps label what constitutes acceptable conduct within you know within that context and what does not uh and and i just want to mention uh very briefly uh in this respect there's there's an interesting concept that has been coined by in a recent doctoral thesis by kareem el shazlee under the direction of piano which is this concept of vigilance where the party appointed arbitrator is entitled to and and should consider where appropriate ensuring that their appointing party's case has been properly heard and understood but it should not go any further the party appointed arbitrators should not be seen to be sustaining or supporting a case in which which they know to be wrong and should be completely impartial at the point of the actual decision-making process and giselle you touched upon a point which that's been raised by one of the members of the audience on unconscious bias uh a point raised by atoll neddy young vitil about um that given that there may be these subconscious biases at play however the arbitrators are expected to be equally impartial against that backdrop and also your point about the different nature of the role of the party appointed arbitrators how do you view the proposals by for example jan paulson that all arbitrators should be appointed by an institution rather than the parties well my my view on that proposal is it depends it really rather depends on the well there are two points really one is the point i've already made that the party appointment system is something that remains desired by users and certainly in the commercial arbitration space i see no reason for abandoning it because it's something that's desired by users commercial arbitrations generally concern private disputes between private actors so why why seek to interfere with the desires of users in that space i think there's a different discussion when it comes to investors state arbitration because they're dealing with states and questions of public law and questions of public interest so i i recognize that that that their the party appointment system is can be perceived to be more problematic um i i think the other question is uh you know what you know whether whether parties uh truly you know are happy to default uh to um you know complete institutional appointments i think you know we've all had varying variable experiences with appointments by institutions and some some of them have been great others have been disappointing and you know we've had clients complaining that the relevant institution really hasn't understood what type of chair we need for this case you know we've all had that experience so i think perhaps perhaps more work needs to be done on the side of the institutions when it comes to selecting uh arbitrators but at the same time it's a question of practicality i mean who best than the parties themselves to understand what types of arbitrators you need on a panel to properly uh understand every aspect of the case it's very hard for an institution coming in with limited knowledge of what the case is about and what the evidence might look like over time and you know what what particular skill set required might be uh to be able to to determine the ideal candidate in every case but again i just want to hedge that you know it's not to say that all institutional appointments are bad and i am aware of the considerable efforts made by institutions to uh to to improve the range and diversity of their of their panels of arbitrators yeah gabriel we i referred to in my introduction to the recent um code of content which is a remarkable improvement by exit and uncertainty and i wonder whether there's one thing that is not touched upon there and maybe you know what's your view is whether it should have been and i'm referring here by a repeat appointment not necessarily by the same law firm or the same party by groups of litigants in isds and we know all know the discussion about certain individuals the sudden arbitrators being appointed repeatedly by either the investor side or the state side so the first question to you is do you think that this is problematic if you have one individual has been appointed you know just for the sake of it 25 30 times by a certain group of litigants and if yes you think this is somehow an issue whether this needs to be addressed maybe in the future by uh updates on the code of contact thank you stars i think that's that's a very good question and i should say that um i'm probably not impartial on that question because in investment arbitration i i i'm usually appointed by by states uh although i'm now cancer for investors in many cases and and i do also commercial arbitration so um you have to consider my opinion in that light but um i think on the one hand um there might be is a reasonable concern because i think we have to recognize that investment arbitration in in certain ways is different from commercial habituation and investment arbitration as gisela was saying tends to involve issues of public law and more generally of public interest and then tends to involve arguments that in the end relate to your more general views on political issues even ideological issues and thus uh the way or your ideology your political views in the end will inform or will have some influence on the way at least you approach these problems i should say that one should not take for granted what an arbitrator will do because you might have a certain political views but then on the facts of the case you decide so um you will be surprised more than once but uh you have that framework which is which is real but on the other hand i would be um very careful in introducing that again as a general matter as a source of challenge because i think we start to um play with the freedom of thought and freedom of expression and i think people should uh you know be allowed to have their own political views of course i mean one must be honest this also has an influence on uh you know parties and who they appoint because they will tend to appoint people that have you know certain ideas and will on things tend to be sympathetic to the views that are uh you know serve that party's interest but um in the end i think uh i i prefer that again people are are free to think uh as us as a wish uh and uh in the end um if of course as monty was saying there is a specific an opinion by that arbitrator or potential arbitrator on the facts of the case then of course that's a different question but on more general issues uh i wouldn't go down that route and and thus uh to say that just because a person is being appointed by a state it's a ground for challenge i'm rather skeptical because again that might just show the way in which that person thinks and i i don't think that's that should or should be a ground for challenge absolutely gabrielle and i and i on a personal level i would tend to agree with you if anything i think um it is we need to encourage the system to be able to allow appointments that come from diverse range of views and including views that they you know some arbitrators think that they understand better how states work it's unnecessary that they have a certain view towards sympathizing the the the acts or or omissions from a state but some people that have worked in the state and they understand that states you know can take decisions in certain ways that include sometimes bureaucracy and that's something a perspective that should be vulnerable in the deliberations and therefore a valid reason to be appointed and and conversely some people understand that or they think that um investors and investment is um drives um the um international trade and it's a very worthy cause and therefore uh that's another uh valid perspective to be uh brought into the deliberation so i think you know your view is certainly a valid but i want to ask monty in that context whether you from your perspective that scans and again with your discussions with clients do you have these kind of discussions with them with um with partners in your law firm as to whether it is a valid perspective to bring into the tribunal when you're thinking of appointing an arbitrator either when you act on behalf of states or investors it's something that comes into the play of your considerations uh do you mean the perspective that that arbitrator yes ring yes yes uh the answer to that question is yes uh i don't think any party appoints an arbitrator with the hope of getting a vote in their favor from the point of appointment and to do so is asking for trouble on lots of bases but what we look for as a as a general a general rule whether you're appointing on when you're advising a client to appoint either an arbitrator from the point of view of an investor or a state is will this arbitrator understand the arguments we're making and ideally have a view that would be congruent with it not necessarily has ruled in exactly the way that you hoped that they would rule in the past and should do in the future because to draw that line gets into a potentially difficult world but having arbitrators that have a position or they've expressed views or written rulings or whatever it may be that are consistent with the types of arguments you may wish to run whether it's about the right of a state to regulate or in respect of illegality issues that's an important consideration that we take into account when advising clients because what else can you do as in the the advantage of investment arbitration and again the reason why it also gets criticized is that we have access to these decisions and these rulings that aren't it isn't the same in the context of commercial arbitration generally and you can look through them and try to find examples or a lack thereof that might be useful to your client's position in the in the case to come and counsel like myself and many others i'm sure look through these just to find opportunities and and to find examples of individuals who may be uh appropriate to a point in any given case i mean just coming back to the point that gabriel mentioned previously that obviously you would be surprised sometimes even if you think that you have vetted someone and you believe that roughly you understand their positions it might be that the positions in the light of the specific interpretation of the treaty or in the light of the certain factual matrix comes to a different lands to different position have you had experiences in practice where you thought that you know you've gone through relatively an extensive research to make sure that an arbitrator views things in certain ways and eventually to find out that possibly the position is not something that was reflected in the final award you can always be surprised and and one thing that gazelle mentioned earlier that i thought was interesting was talking about uh questions and and comments within a hearing that exhibit or potentially illustrate a form of partiality to a view or a party and i've seen situations in which arbitrators will almost advertise that for the benefit of the appointing party but then go into deliberations and be quite nuanced and uh and balanced and be very careful in how they approach the case so and that gets into an interesting question of whether uh whether the appearance of of impartiality is is more important or less important than actual impartiality when it comes down to the decision making but you can be surprised all the time because arbitrators are not necessarily giving a lot of way and in fact over the past 10 years i feel like there has been a move to give even less away whether it's guidance to the parties as to how a tribunal might be thinking about a question or or guiding across in a way that a judge might in a in an adversarial system so there's there's definitely been a cultural shift in the sorts of tips and clues you get at least from my perspective and in in turn you may well be surprised by the rulings you get monday if i could pick up on a point you made and also point gizelle made earlier on on appearance of bias so giselle you made um the point that often parties are looking for an arbitrator who you can ensure that their party their ensure that their party's case is heard or understood we there's comments to be made that an arbitrator being an advocate however is not acceptable so it's important that the arbitrator make sure that the party's case is understood but if they tip over into being an advocate that is not acceptable it seems to be quite a muddy line to draw so how do you draw that distinction how do you tell when they step into being an advocate for the party well i mean it's it's hard to illustrate without the specifics of the case but as i say i've i've definitely seen it and i think it's about how open the question is uh and i i i suppose i would i i would draw a parallel with you know a type of cross-examination style question you know you get you know the the advocate arbitrator will uh you know will ask questions in a certain way which which suggests that they are it's not just putting the other side's case to to to the party that they're questioning but it's it's exhibiting a particular predisposition to that um to that uh case theory and again it's really hard to illustrate uh kind of theoretically all i can say is that you definitely know it when you see it and you can definitely see the difference between you know the the arbitrator that's just trying to help you know help their party along by asking an open question but without exhibiting any predisposition of their own uh as opposed to the advocate arbitrator asking that very kind of biased we say in french question orientated question uh to the to the other side if i could comment on that because uh i think it's an interesting point uh and and we always think about you know judges being the ideal of independence and impartiality and and compare it to arbitrators but in certain legal cultures even in the us for instance you you have judges that can be very active and even aggressive in how they they question both council and sometimes witnesses or experts and that is very much or can be similar to a cross-examination and actually i think that sometimes it's it's helpful for the case that the judge or arbitrator be very active uh and you know take strong uh view on certain points in in the sense of asking questions that are it might be difficult for for the witness or or expert or other parties and that can be helpful for the case in certain cases so i of course there is a difficult line as anna was suggesting to draw because the arbitrators should not be uh you know pushing for uh for the case of any of the parties but on the other hand i don't think we want arbitrators that are too passive that are you know afraid of of uh putting uh you know good questions or difficult questions to the parties or experts because that this might appear as as pre-judging so uh it's difficult to find the the the the right balance but i i would uh encourage arbitrators to uh if they want to ask a question just make the question and because in the end that's your role as well i i think that's a valid point gabrielle and that i think links to something that monday mentioned a little bit earlier that there is this experience that arbitrators have become a little bit more uh reticent in the way that they they're more conscious not to give away too many things i think the point that you made gabriel about judges in many jurisdictions actively engaging with the parties making comments during submissions and giving away some of the thinking of the tradition or at least their personal thinking can be helpful but do you regret this um this approach very careful approach on the part of our potatoes do you think that from your viewers council you would welcome a little bit of more insight in their thinking as to what is their main concerns with your case even if sometimes the way that they express this thinking may may come across as a little bit um not aggressive but uh too intrusive during your submissions or do you think that you prefer to know you know they have an entirely neutral tribunal also in terms of how they exhibit their neutrality during your submissions i i personally i prefer more active tribunals and uh i think well um there is a tendency sometimes of seeing you know very passive tribunals and perhaps it's part due to what everybody says about the due process paranoia uh and uh because after all i mean as when you are counsel and you see a party appointed the arbitrator appointed by the other party being too active you sometimes of course won't like it and it's understandable but um but i think that in the end um council is there to help the arbitrators to arrive at the correct decision uh and thus um to uh you know get questions from tribunal just to know what they're thinking about what they need to know i think it's useful so uh but actually again i prefer arbitrators that are more active that make questions even at some point even as you say giving away certain lines of thought i've had a specific experience in which uh it's this is public but i won't mention the case but in which uh there was a clear prejudgment so in that case on the very final merits of the case well in that case of course that's going too far but otherwise i think suggesting lines of thought by the arbitrators for the parties to engage with and and to enrich the discussion i think that's a desirable thing to do any comments from giselle or monty and that from your perspective as cancer to whether you would welcome a more active engagement uh from tribunals or it's something that you would start being concerned or indeed paranoid as um gabriel said well personally i i love active tribunals because questions is what makes the hearing exciting and dynamic uh and and i think i absolutely agree with gabriel uh arbitrators should not be concerned about asking too many questions and i think you know what what you see uh sometimes i'd say particularly with english arbitrators because it's it's what they're it's what they're used to you know they just pepper you with questions throughout your submissions they might you know not necessarily interfere with your line of questionings but jump jump in you know have no compulsion about jumping in um but you know when that's done appropriately you know appropriately testing each side's case to the nth degree then then obviously that's that's entirely desirable and appropriate i think you know what's more disappointing is is if you have you know an arbitrator that is uh passive most of the time except to ask two or three questions that elicit some form of bias or predisposition to a particular thesis so i think you know when you when you're asking questions i i think it's it's important to be seen to be asking open questions of both parties and to be seen to be testing both parties cases not much to add except i agree but i don't think it will change much depending i think it depends upon the background of the arbitrators as giselle mentioned and their natural inclinations but there is such a concern about being seen to have prejudged even a small argument or giving some crumb of a concern to the parties that you it's frustrating when you can brief an issue for years and have no idea what the tribunal is thinking and then an award comes out that's based on one's tiny niche of and of the of the arguments and the rest hasn't been either what it may have been considered i'm sure it had been but didn't necessarily feature prominently in their reasoning so it's very useful but i'm not sure if we'll necessarily see that much of it and it's quite funny i find when you have different tribunal members exhibiting different styles you might have one entirely impassive arbitrator and another who gives thumbs up to the council after they finish cross-examinations and not ideal entertaining though yes i'm sure it can be entertaining and i i guess that brings up another line of questions uh to what extent this paranoia uh from arbitrators justified and to what extent this translates to the actual numbers of challenges that we've seen lately in international arbitration and there's a general view that challenges have increased especially in the context of isds because of the sensitive nature of the disputes and the fact that and there's too much at stake i wonder whether you agree with the position that challenges against arbitrators have increased lately and if yes why that would be the case gabriel well based on uh on a consideration of the decisions on challenges that are public over the last 10 years i i don't see a significant increase in the number of challenges actually i've seen an increase in the first five years so up to if you will 2015 more or less but then the numbers decrease again and we are now roughly uh you know again based on the uh public um decisions on challenges roughly where we were 10 years ago so i don't think there is a significant increase in the number of challenges uh however i i would say that uh there is um a change in the the way in which arbitrators are uh addressing certain uh potential concerns regarding partiality of independence clearly and this relates to the first point we address arbitrators are nowadays uh much more careful when they disclose uh you know whatever links they they have um and i think this is a desirable evolution when i started well almost 20 years ago or so this you know disclosures were not very detailed and often arbitrators would simply not disclose points because they thought they didn't have to which are now clearly disclosable so i i see a very clear line in arbitrators disclosing more and more particularly the last five years i would say you see you know people saying you know i uh you know we worked together in in a case with this person 20 years ago which you know uh wouldn't be uh not relevant at all but still people disclose it and i think this is again a desirable evolution because it's good for parties to know to have you know a reasonable amount of information of the relevant fact on the other hand i think this might lead in the future to more challenges because as parties have more information they they will be tempted to to challenge or object and that's where i think one needs to oh i hope that we will you know whoever has to decide on challenges will use a reasonable judgment because of course this depends on very much on the facts of each case but for example we've seen now uh challenges relating to the links between arbitrators and not not with the parties or the council but more with other actors like uh experts or so and in that case that's uh of course interesting but on the other hand it uh it risks perhaps uh you know allowing for uh unjustified challenges for instance the the system of my firm will not tell me uh you know who were the experts involved in all the cases we've had and also take into account that for example the same company for example for example providing valuation services might be if you have if you're in a big law firm this the same company might be providing valuation services for arbitration and for antitrust and for many other uh you know legal services so actually partners in your firm who you have no idea about might be also using the same company and that so again i think it's it's good for arbitrators to disclose uh you know much more than what they're used to but then i think it's for for the the person deciding the challenge or the institution deciding the challenge to be reasonable in in what are the links that are really problematic what are the what other links are just uh you know reasonable in in the professional world in which we live you raise a number of very interesting points both in relation to regulation and how extensive disclosures have been made in in the last years but also and we'll come back to that if you may but i want to ask monday in the meantime and again giving his um excellent experience as uh counselling in a big law firm how easy or i should say how difficult it is for a law firm and a client to take the decision at some point to bring a challenge against an arbitrator again i am concerned that is probably one of the most difficult decisions to to consider but i wonder whether you can give us some insight into the process and the thinking that goes behind a decision to challenge an arbitrator or indeed sometimes the three members of the tribe happy to to provide some context i have never been on a case where a client of mine has challenged an arbitrator so that probably answers part of your question and particularly in the exit context because the standard is so high and because it's baked into the convention and functionally can't change it's a very tough ask to put that in front of the tribunal and then in front of the exid itself to decide upon and it's it's almost a nuclear option and to do so creates enormous risk for your client as a general rule it may be necessary in a given case and i don't mean to suggest that it's never advisable or appropriate in certain circumstances but usually for most council i would imagine their experience has been you raise it with the tribunal member in question the tribunal in question as an issue rather than as a formal challenge and you see how one reacts and and go from there but as i said it's rare in my experience and i would be very hesitant to do so except in some quite extreme circumstances giselle maybe you have um a case where you actually as council decided uh even though reluctantly to do that and if you're not and i'm sure whether you have discussed it and again i eventually decided not to do i mean my my experience really chimes with monty's i think it is a nuclear option and it's uh something yeah it's it's a weapon that you use with a lot of caution and i personally uh haven't been involved in challenging an arbitrator um what i would say is i think and i don't want to generalize here it's sort of my my view is is perhaps somewhat anecdotal but i i see the kind of challenged weapon uh as being deployed more frequently by you know i i suppose uh council that come from more diverse backgrounds so i think you know people who are really embedded in the arbitration community yeah understand how difficult it is to to raise these challenges and and their likely outcome which is likely to get declined but you do see a lot of arbitrations being run by lawyers who are not uh specialists in the field who are less embedded in the community less concerned about perhaps their professional relationships and and perhaps less aware of the likelihood of the challenge or we just don't care they just just wanna you know their client wants this wants to do this so they go ahead and do it and and and i mean that's an impression i get from a lot of the case law that you see particularly you know going through the french courts uh you know it's because you do see some really really uh creative challenges and and most of the time and and challenges that obviously happen at the uh in the context or at the post award stage you know in the context of anonymous proceedings uh for example uh and and at that point it's it's really just being used as a tactical weapon uh as some something to you know perhaps delay the inevitable uh outcome of the award uh and and you know most most of the time uh these challenges fail uh but but they are made nonetheless and i think just to pick up on what gabriel was saying the quest of disclosure is always really fertile ground in this context because obviously you know it's always hard to to demonstrate that lack of partiality right in the context of proceedings but that if you can find a hook through you know disclosures that perhaps should or should not have been made then then then that's going to provide fertile ground for litigation and what what i would say is perhaps the number of challenges statistically hasn't necessarily proportion to the number of cases but my uh kind of anecdotal impression at least is that the challenges of becoming on on disclosure are becoming more and more creative in terms of raising issues with arbitrators having acted as counsel for a party 30 years ago or someone having supervised you know account member of the council team's doctoral thesis and that sort of thing and there are some pretty crazy crazy points uh being being raised out there i think you you raise the point that i think reflects also position taken by monty that you said well those that come from outside the system cancer come from outside the system is more likely to challenge whereas those that are very well familiar with the system know how high the threshold for a challenge is to be met and i think that's also what mundi said he said that you know especially in the exit it's very difficult to successfully challenge an arbitrary and i wonder whether monday you the comment that you made there and then the results comment actually reflects a view that the threshold should be become lower so in other words is it the fact that the threshold is too high that prevents many challenges from being broad although there should be merits in those challenges or the fact that you think that um there isn't usually merit in any challenge whatsoever well uh the the exit standard isn't ever changing uh because it's in the convention rather than the rules uh so with 100 amendment requirement of course we're stuck with manifest whether you like it or not so there's a level of i think at least in the exit context uh it is i don't think it's viable to hope for a change but to answer your question as to in other contexts or even within the exit context whether if that standard was changed there would likely be a greater number of challenges i'm still not so sure and the reason i say that is you would have to have a fairly high degree of confidence about the success rate of a challenge before you commenced it because of the potential consequences for your client's case on that tribunal if the challenge is unsuccessful and that's always the concern that that animates you or at least the the the check and balance check all bounce to the consideration as to whether a challenge is merited so it will always be dependent upon the circumstances i would never say that a challenge would never be advisable but you always have to as as a representative of a party think well what what are the risks even if you could say quite uh coherently and cogently that the circumstances in question meet the standard that's not the the entirety of the consideration if i could put up a pick up on a point which giselle made and also monty alluded to that challenging an arbitrator is very much the nuclear option are there any types of behavior or any types of connections which bring you closer to this nuclear option and perhaps if i could ask that of of gabrielle well um as uh us i i agree that is a very difficult um decision to take to challenge an arbitrator but but there are certain circumstances in which in which uh one should consider challenging an arbitrator and and actually uh it's interesting because as as monty was saying uh of course the the standard in the exit proceedings is in the convention however uh if i look back uh in the first exit cases there was a discussion whether uh the the you know the applicable standard was actual bias or appearance of bias and that was i think you know clarified by the chairman of the administrative council in in some of the decisions more recent decisions the last 10 or 15 years in the sense that the applicable standard is appearance of bias and that effectively means i i would argue a higher um a more demanding standard of independence and impartiality for for arbitrators so in that light uh of course there are situations in which you have um you know undisclosed um relationships between the arbitrators and the parties or council which are it depends of course on how intense they are whether they are a current or not but that might be cases in which in which uh of course a challenge might be justified again i'm more skeptical about issue conflicts and about uh when you know when the arbitrator has uh opined or decided in a certain way in other cases that i think except for very extreme cases i would tend to think that those do not justify a challenge from from our discussion now more than an hour i get the sense that and a the system is is well regulated b the people that practice in the system are very well aware of what is expected of that and largely they behave reasonably uh well and certainly um in more often than not uh in partial so i wonder just to go back to the initial observations that i made what is it then that justifies these wide and loud voices against isds is it justifiable is it something that we tend to react including with a new code of conduct to something that doesn't necessarily reflect what actually takes it takes place in in in practice money i can say that you're smiling maybe it's either you you you don't want to answer the question or you you want to answer the question i don't know i'm eager to throw in my thoughts but i'd like to hear please do it okay now gabriel i i think that uh my view if i compare the present reality of investment iteration to what it was again 15 years ago or so i think uh there had been improvements in the sense at least that we have a more transparent system in certain ways again we spoke about uh you know um more demanding disclosure requirements uh for example uh exit itself at the beginning or you know when i started when exit would decide a challenge it wouldn't provide reasons uh nowadays when exit uh decides some challenges they always provide reasons i see that as a clear improvement so so so i think uh there were some valid concerns and there have been improvements um but uh of course some concerns and some criticisms are not justified but somewhere and i am happy to see some improvements and i i'm still i still think there are there's room for improvement still and we should work on that i myself think going to the body autonomy think that um some kind of appeal mechanism in in the context of investment is um a way in which some of these problems could be resolved again i'm not in favor of a full-blown permanent uh tribunal but some kind of appeal mechanism uh coupled with you know party appointment at the first level could be a way forward but uh but again some of the concerns were valid and i think some improvements happened there's an elegant mirror here between the idea of actual and perception both in terms of of of bias and partiality but also in what is considered legitimate because we come at this question as international arbitration practitioners academics arbitrators and we see the idea i would assume i don't want to speak for all of you but i tend to see the three uh three member tribunal with one party appointing each in the chair being chosen through agreement of some sort to be quite an elegant way of of ensuring that there is balance and that each side gets a choice and it also ensures i think legitimacy of the outcome where the parties have had a role in in choosing the the body that then decides the case and that of course goes back to our understanding of what arbitration is being a consensual agreement based uh dispute resolution mechanism but people outside of the world of arbitration might come to this and say an investor gets to choose their own judge and you think of someone going down to the commercial courts and saying i'd like that one that feels offensive and problematic potentially depending upon your background so whilst we may sitting here think that as a matter of fact there may not be actual concerns on our part as to impartiality issues within the investment arbitration system it doesn't does it really matter in the sense that it's about the perception of it and if a court is considered to have greater legitimacy in the eyes of those who matter and that's the states and and those who appoint governments and and of course other uh decision makers and and players in this space as well then perhaps that's preferable i mean if i look at a court i think well if you've got one of the participants appointing or potential prospective participants in an arbitration appointing all of the decision makers that is a less balanced system arguably than having both sides appointing but the commercial court system works well in many many countries and the state is appointing them and depending upon the background so i i enjoy that that play between perception and actual because i think it's relevant to how we look at this issue if i could pick up monday on your point about perception that lee that links in nicely with the question we've had from the audience from atl ned in yonvital who essentially has asked that um we i assume that if an arbitrator has made any disclosure which may cause a reasonable apprehension of bias among the parties the arbitrator would recuse himself from hearing the matter so this concern about if there's any disclosure which causes a reasonable apprentice advice and the arbitrator should step down giselle maybe if i could bring you in there well i mean i think in practice that's what happens quite often because the arbitrator feels that he no longer has the confidence of both parties and and cannot continue and the risk of future challenges is too great so so i think i think that does actually happen um but uh but again you're you're relying on perhaps the the conscience and the and the concerns of the individual arbitrator is that is that enough but then you obviously have the formal challenge mechanism if you need to but recusals do happen very often when child when concerns are raised can i follow up on uh the very thoughtful comments that monty made and the distinction there between what's actually happening and the perception of the public including people that are not very well familiar with the system and i absolutely agree this is this is a valid distinction and i see how the public may view a field um that is they're not very well familiar with but this brings the question as to how one should respond to that if you think that there's nothing that justifies this perception but nevertheless you acknowledge this perception as being valid seems to me that they have two different courses of action one is to inform better those that are not very well familiar and bring them in line with what actually happens including bringing some evidence based assessments or you say i cannot win this fight and i'll just try and move all together from what's actually happening although i don't think that is necessarily what shouldn't happen because in the first place the system is not as biased as people perceive it to be and it seems to me that in many ways we have chosen to do the latter rather than the formula is that a valid assessment giselle and gabriel of what actually had had gone into international reputation as a matter of responding to the largely critical public discourse in the last 10 15 years it's interesting you raised this point i've actually heard a lot of the arguments from the uninitiated in fact there was a whole evening program sort of the french equivalent of panorama dedicated a couple of years ago to these awful secret tribunals that uh you know end up in awards of billions of dollars against states based on spurious grounds and i mean i just sat through it all fuming at the inaccurate portrayal of the whole process um we've seen that we've seen this award and i just saw the disclosure they had to come to take some interviews and comments from one of the uh events that we've made many years ago in washington uh in the ita uh on third party funding and as you know the party fund it was another big uh red herring there and they interviewed us and just by selectively portraying some of the comments so yeah you're right i mean what do you do about that but it is it's permeating through to the decision makers i mean we've heard you know government ministers espouse espouse these views obviously the european commission says isds is dead um and and i think unfortunately the whole discussion about impartiality of you know investment tribunals is sort of wrapped up with the substance of the issue which is our rights and obligations under investment treaties sufficiently balanced says between states and investors uh and and and so i think it's hard to separate the the two debates and everything gets the process if you like even if we think that the process is is largely well regulated and and self-corrects itself when where needed that doesn't you know result in any you know untransparent uh unlawful unbiased result unfair results but the problem is that the discussion about the process gets wrapped in with the substance which is are these investment treaties sufficiently balanced and of course there's a huge amount of work being done by states to to rebalance their investment treaties but it's it's really hard to separate the the two issues i think so in a sense it feels as if now just tinkering around with the process is not going to address the public concerns that are raised something more radical needs to happen and i would also add i think there needs to be more communication between our communities and the general public uh i think that the general public is is quite misinformed but we also as a community are a bit too insular we'd like to have our discussions among ourselves but we're not very good at going out there and explaining educating the general public it's very interesting giselle thank you gabriel what do you think i mean you mentioned coming back to the point as yourself made um that you need something radical so the question is how how radical you need to be to address this and you mentioned the point about an appellate mechanism although you said that a tribunal in the first instance can still operate very well do you think that this would address concerns surrounding lack of impartiality of isds system i think that uh it's a good good point that giselle made at the end about as being insular in the sense that i i found it some of the practitioners would um would say that everything is perfect there's no problem we should we have to make no changes and i think that attitude was problematic because uh then of course i think some of the criticisms were valid and that puts the system at risk if you don't want to make any changes on the other hand i'm not sure if we need radical changes although one might say that creating an appellate mechanism is a radical change so that depends on how you define that but i do think that if hopefully we're able to to devise an appeal mechanism that is again reasonable and keep some of the good things of of the current system even party appointment at the first instance i think it could it could address some some of the concerns including uh regarding independence and impartiality and sorry just to clarify when i was talking about radical changes i i wasn't really talking about tinkering around with the process and i i tend to agree with gabriel that an appellate mechanism is is you know would would be probably a positive development given what's at stake here uh i was talking more about how you rebalance uh investment treaties on the you know on the substantive rights and obligations to give to general public confidence that uh these are not just uh vulture funds and investors uh coming in to strip states of their assets and uh destroying the environment in paradise sorry i'm this is not what i believe i'm just uh paraphrasing what the general public says about investment treaties i think monty has a comment oh we welcome that it was just on the the point that stavros originally made or the question he posed about whether it is incumbent upon the industry to communicate and to attempt to educate and one thing i always go back to is and there may be people who've worked at ixed or people who live in washington who've seen this but there's this giant inflatable fat cat a corporate fat cat that they pop outside the world bank every time there's a controversial isds hearing that's on and it's often hired by ngos and you would have seen it in gar articles and it's got this cat and a suit and he's crushing workers of the world in one hand he's got a big cigar on the other hand with a fistful of dollars somewhere tucked away i think he doesn't have even has a fob watch coming out of his top pocket but it's such a visceral and powerful symbol of the position that the anti-isds movement have it's the simplest form of an idea and it's very difficult to to educate against that i feel in the sense of let's go back to the underpinnings of ixed and the desire to promote and protect international foreign direct investment and when you're faced with something visceral and something symbolic it can be very difficult to do so as much as i sometimes wonder whether the reform movement is potentially going too far and i don't have a strong view on that uh it makes sense to me that there is an effort to give credence and and to try and implement incorporate these concerns because it's very difficult to destabilize a view once once held given it is such a visceral and powerful message that's being uh being put forward well thank you thank you monty i think the system has been beaten comprehensively by a fat card um but we we may we may be thinking of ways to um to educate as well as uh taking the necessary steps to address some of the valid concerns because obviously you know i was oversimplifying when i said that there's um all has to do with perception i don't think the point that you were making monty was that everything has to do with perception i think obviously reality is more humans you tend to look very hard and honestly into what hasn't been working including in the conduct of arbitrators some perpetrators at least uh and trying to address that as again as i say exit and the answer i have have done recently with the introduction of the new code of conduct but at the same time i think when you feel strongly that the system hasn't been as bad as you as people perceive it to be you probably try and find ways to um to defend the position and make sure that reality catches up with perception rather than the other way around any any final comment i'm conscious that we are just uh have uh come to the end although i can see there are a couple of questions i don't know maybe anna has been following these questions more closely than i had yes we have a couple of questions that have recently come in and one takes us back to the early discussion about that muddy distinction between an arbitrator making sure that the case is heard and understood compared to becoming an arbitrator advocate and the question comes from dennis parcher jeff who asked how does one fight an arbitrator who does not shy away from asking loaded questions we hear that challenging an arbitrator is a nuclear option what's the best course of action i think monty you touched upon this earlier by saying there are other ways of addressing this rather than addressing potential uh suggestions of bias rather than bringing a an actual challenge so what are the best courses of action to address an arbitrator advocate it's the situation i was thinking about was more in the context of a relationship or formal work or some uh some connection that might give rise to a perception of bias or lack of independence that would ordinarily prompt a letter to the tribunal or to the institution to the arbitrator drawing their attention to the issue and suggesting very gently that it may not be appropriate to continue in the context of a hearing when you're actually getting loaded questions i don't think there's really any other strategy except to answer the questions and to do so as politely and and as effectively as you can and then there's a question as to whether you need to push back and protect a position and and make a suggestion within a hearing but again that's that's a difficult difficult one to answer in the abstract because it will be entirely fact and situation dependent let us very briefly add to what monday says and i think that's very sensible at the same time however i should say that if you if council is faced with this situation that they had to decide whether to actually move ahead with a nuclear option or politely suggesting that this is not appropriate i think that's also a failure on the part of the presiding arbitrator because it seems to me that it's a campaign upon the presiding arbitrator to make sure that neither of the two party appointed arbitrators in the way that they pose questions so they conduct themselves bring cancer in a position that they will feel uncomfortable and and therefore you know the question is what do you do with the presiding arbiter but i think it's important to have a precision aggregator that is conscious of the balances and the sensitivities uh surrounding the uh party appointed applicators behavior and contact during the hearing and if they believe that this had been they have crossed the line that somehow the presiding arbitrator make sure that they are brought back into the right position there's one last question um i'll just touch upon it's quite a long question so i just touched upon the last part of it from ikari saito and at the end of her question she asks are parties keen on appointing someone who supports them in the arbitration proceeding even if they are biased and do arbitrators feel pressured to do so so this is an interesting point here does the arbitrators feel pressured to to support to lean towards the party that appointed them gabrielle maybe if i could bring you in yes uh well i guess that depends on its arbitrator but i don't think this as a general matter arbitrators uh feel that they are obliged to to to act in that way but again there are arbitrators that do think that their duty is also to make sure that they present their that the party that appointed them um the the arguments in in a complete way and i have seen that done in deliberations uh so uh and and to be fair i think it's preferable if arbitrators are open as to the way in which they see their roles rather than having people pushing for certain hitting agendas so i i always prefer that to be honest and transparent unless there is any other comment anything further to be made about zolo monti a last parting shot well then then it's a nice to thank you again sincerely for taking the time um virtually appearing um at queen mary and the school of international arbitration for sharing your experience your insights into the minds of arbitrators tribe generals and cancer and i always feel grateful to people that they take the time as i said uh from very busy schedules to um to share their thoughts and i don't know i mean when when we did that in the old fashion way where we appear in person we would sign off with a round of applause i don't know how we can upload you here and how we can show our appreciation i think that might be a funny emoji that does that but i'm not very good at it uh so i would just very emotionally just upload you all and thank you sincerely for for everything and uh for sharing your thoughts um and we very much look forward the next time around to have you in person and then be able to uh be in the same place in london which is remarkably sunny here as you can see from mundi's now the sun has just now turned and his face and we would then go out and and have a nice round of drinks with with the participants but we'll have to wait for another year for that in the meantime thank you again very much and thank you also to the audience that stay with us all this time thank you thank you bye thank you so much

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Published: Tue Jun 15 2021