International arbitrators are often selected because they are leading specialists in the relevant field. Many are professors, authors and regular conference speakers. It is therefore common for an arbitrator to have expressed a legal view on an issue that later arises in an arbitration.
The difficult question is when a prior view stops being evidence of expertise and becomes evidence of prejudgment. The case law shows that academic writings alone rarely justify disqualification. The decisive issue is usually whether the writings, viewed in context with other evidence, create a reasonable appearance that the arbitrator will not reconsider the issue on the basis of the parties’ submissions.
The Starting Point Under the IBA Guidelines
The 2024 IBA Guidelines place a previously expressed legal opinion concerning an issue that also arises in the arbitration in the Green List where the opinion is not focused on the case. This reflects an important policy judgment: arbitrators are allowed to think, write and teach about the law. A general academic opinion is not, by itself, a conflict.
The position changes where the arbitrator publicly advocates a position on the case itself. That circumstance appears in the Orange List. Between those two poles lies the difficult category of writings that are not formally about the pending case but are so specific, categorical or persistent that they may suggest a closed mind.
Saipem: A General Academic Opinion Was Not Enough
In Saipem v. Bangladesh, Professor Christoph Schreuer was challenged on the basis of views expressed in his writings. The challenge was dismissed. The reasoning reflected the basic principle that an abstract academic opinion does not establish that an arbitrator cannot approach a particular case with an open mind.
The case is an important baseline. If publication on a legal issue were enough, many of the most experienced arbitration specialists could never sit in cases touching on their areas of expertise.
Urbaser: Strong Language Still Did Not Establish Prejudgment
In Urbaser v. Argentina, Professor Campbell McLachlan was challenged in connection with scholarly writings concerning the most-favoured-nation clause and the state of necessity defence. One of the passages used notably strong language in criticising an earlier line of authority.
The challenge nevertheless failed. The deciding arbitrators considered that the writings addressed legal questions in the abstract and did not demonstrate a manifest lack of impartiality in the dispute before them. The absence of a sufficiently concrete factual connection between the published views and the case was significant.
CC/Devas: When Writings Became Part of a Successful Challenge
CC/Devas v. India is the leading example in which legal writings materially contributed to a successful issue-conflict challenge. Professor Francisco Orrego Vicuña and Marc Lalonde had participated in prior investment cases addressing a similar essential-security issue. Their prior decisions alone did not persuade the appointing authority that disqualification was required.
The analysis changed because Professor Orrego Vicuña had later defended the same interpretation in a publication after annulment committees had rejected the relevant awards. The appointing authority considered that the combination of repeated prior decisions and the subsequent writing could cause a reasonable observer to doubt whether a party would realistically be able to persuade the arbitrator to change his view.
The challenge to Marc Lalonde failed because the additional evidence was absent. The contrast is instructive: repeated adjudicative activity on its own was not decisive; the later writing created a context suggesting a stable and strongly defended position.
Practical point. The lesson from CC/Devas is not that a published opinion is disqualifying. It is that a specific publication can become powerful when it demonstrates persistence of a view in combination with other overlapping circumstances.
Belokon: General Writings Demonstrated Expertise, Not Bias
In Belokon v. Kyrgyz Republic, Professor Jan Paulsson was challenged in part because of writings concerning denial of justice, his role as an expert in another arbitration, and a prior award. The challenge was dismissed because the challenging party failed to identify a sufficiently specific issue that had allegedly been prejudged.
The writings were broad and did not establish a closed position on the concrete question before the tribunal. Indeed, the existence of scholarly work may sometimes support the opposite inference: that the arbitrator has expertise and is familiar with competing approaches to the subject.
What Makes a Writings-Based Challenge Stronger?
The case law suggests several factors that increase the significance of prior writings:
- Specificity: the writing addresses the precise legal issue, not merely the broader field.
- Case connection: the writing is linked to the dispute, the same treaty provision, or substantially identical facts.
- Categorical language: the arbitrator expresses the view as settled or beyond serious debate.
- Consistency over time: several publications or statements show a persistent position.
- Reaction to contrary authority: the arbitrator continues to defend the position after contrary decisions or criticism.
- Additional evidence: prior decisions, parallel proceedings, public statements or professional roles reinforce the same inference.
- Materiality: the issue is central to liability, jurisdiction or another decisive part of the current case.
What Usually Does Not Work
A challenge is weak where it relies on a single academic statement that is general, old, qualified or detached from the facts of the current dispute. It is also weak where the challenging party identifies only a broad concept — such as “denial of justice” or “MFN treatment” — without explaining what precise proposition is said to have been prejudged.
A party should also avoid treating disagreement with an arbitrator’s scholarship as proof of bias. The relevant question is not whether the arbitrator has previously taken a different legal position from the party. It is whether the evidence reasonably suggests that the arbitrator is unwilling or unable to reconsider that position in light of the submissions and evidence in the current case.
Researching an Arbitrator’s Prior Views
Before filing a challenge, counsel should research more than formal publications. Conference recordings, interviews, public panels, online articles, professional networking platforms and social media may reveal how consistently a view has been expressed. The 2024 IBA Guidelines expressly recognise online and social-media advocacy as potentially relevant when it concerns the case.
The research should be organised chronologically. A sequence of statements can be more probative than a single quotation, particularly where it shows that a view became more categorical over time or was maintained despite contrary authority.
Conclusion
Academic activity is not a disqualification risk in itself. The default position is that arbitrators may hold and publish legal views. A writings-based challenge becomes materially stronger only when the publication is specific, connected to a decisive issue, and supported by additional circumstances suggesting that the arbitrator’s position is fixed. CC/Devas remains a useful illustration of the cumulative approach: context and consistency transformed writings from evidence of expertise into evidence supporting an appearance of prejudgment.
Selected authorities
- Saipem SpA v. Bangladesh, ICSID Case No. ARB/05/07, Decision on Proposal to Disqualify an Arbitrator (11 October 2005).
- Urbaser S.A. v. Argentina, ICSID Case No. ARB/07/26, Decision on Claimants’ Proposal to Disqualify Professor Campbell McLachlan (12 August 2010).
- CC/Devas (Mauritius) Ltd. and others v. Republic of India, PCA Case No. 2013-09, Decision on Challenge (30 September 2013).
- Valeri Belokon v. Kyrgyz Republic, PCA Case No. AA518, Decision on Challenges to Arbitrators Kaj Hober and Jan Paulsson (6 October 2014).
