THE AUTHORS:
Daniel Greineder, Of Counsel at Kalbian & Hagerty
Anastasia Simonova, Attorney and Visiting Lecturer at the Higher School of Economics
The authors consider nationality as a criterion in the appointment of an arbitrator. They discuss conceptual tensions between the international aspirations of arbitral practice and perceptions of neutrality and impartiality related to nationality. They then discuss recent institutional decisions involving arbitrator nationality by the LCIA, SCC and PCA.
“My country is the world, and my religion is to do good”. The noble words of the eighteenth-century political philosopher Thomas Paine would very likely elicit rapturous applause from the eager, young graduates of an LL.M. programme in international dispute resolution. If a keynote speaker at one of the more glamorous arbitral conferences invoked the sentiments, there would be at least public approbation from the audience. Arbitration defines and promotes itself as global in its legal, commercial and cultural reach. Whatever the claims of arbitration to beneficence may be, it is worthwhile to ask whether the arbitrator’s country is indeed the world. As a matter of fact, every arbitrator holds at least one nationality.
One strand in arbitral commentary has played down the significance of nationality, demanding, as Pierre Lalive wrote in 1984, that an arbitrator should be “internationally minded” and “more than a national lawyer”. By virtue of his training and temperament, a good arbitrator transcends nationality and “legal parochialism”. On this view, an arbitrator’s actual nationality goes only to the appearance of neutrality. International parties to a dispute may well feel uncomfortable if all three arbitrators on a panel share the nationality of one of the parties.
A further strand in arbitral commentary highlights the need for arbitrators to understand and be sympathetic to the background of the parties. Martin Hunter’s famous dictum that a co-arbitrator should display the maximum predisposition towards the appointing party, but with the minimum appearance of bias, exemplifies this (See Martin Hunter, ‘Ethics of the International Arbitrator’ 53 Arbitration 219, 1987, pp 222-223). There are many occasions where it is desirable to appoint an arbitrator, whether as co-arbitrator or presiding arbitrator, with “local knowledge,” such as particular legal, linguistic, commercial and cultural skills and experience. This should enable an arbitral tribunal better to understand and consider the parties’ positions. In practical terms, this may bear on the arbitrator’s nationality, although it is not in itself a nationality criterion. For example, there are few speakers of Icelandic who are not themselves Icelanders.
In its judgment in Jivraj v Hashwani [2011] UKSC 40, the British Supreme Court upheld an arbitration clause that required any arbitrator to be a member of the Ismaili community, which is a religious as opposed to national community. It found that the parties’ agreement was not governed by relevant employment laws and therefore did not fall foul of anti-discrimination laws. Moreover, the court acknowledged the distinctive Ismaili culture of dispute resolution and held the requirement, in any event, to be a genuine and thus legitimate qualification as opposed to a discriminatory qualification. The case concerned members of a single community and thus differed from typical international arbitrations involving parties of more than one nationality, often performing a contract in a third country. Yet, the court’s acknowledgement of the irreplaceability and value of unique cultural attributes is a far cry from an arbitral universality that would view such a criterion sceptically, although it would likely respect the parties’ contractual choices. Ideally, there is a middle ground that recognises that a truly international arbitrator will see the world as his country, while recognising that he will not feel equally at home in every part of it. Beyond “local knowledge” and cultural competencies, the issue of nationality also bears on the legitimacy of arbitration itself. If arbitration, especially investor-State arbitration, is to resolve the problems of a global economy, then all nationalities should be represented. There is an inherent tension in a transnational closed shop with arbitration the exclusive preserve of cliques from a small number of historically rich and highly developed countries.
Practical Considerations and Appearances of Independence
It is rare for national arbitration laws to prescribe or proscribe the nationality of arbitrators. This leaves open whether other laws, sanctions or political pressures may make it difficult or impossible for an arbitrator to accept certain appointments. In practice, the nationality of an arbitrator most often comes into play in the appointment of a sole or presiding arbitrator. Parties rarely specify the nationality of co-arbitrators, but arbitration clauses will often preclude the appointment of a presiding arbitrator or sole arbitrator who is of the nationality of any of the parties. Article 6.1 of the LCIA Arbitration Rules 2020 makes similar provision, unless the parties agree otherwise, as do the Swiss Rules of International Arbitration 2021, although this is specified in para. 90 of the Practice Note, rather than the rules themselves. Article 14(1) of the ICC Rules 2026 identifies nationality as one of several criteria in confirming or appointing arbitrators, while the practice note indicates an approach similar to the Swiss Arbitration Centre. Rule 13(3) of the ICSID Rules provides that, in the absence of the parties’ agreement to the contrary, the members of a three-arbitrator panel shall not have the nationality of either party.
Intuitively, the prevailing institutional approach seems right. Choosing a national of a third country suggests neutrality. Yet, the rationale for this rule is less clear. It is usual to hold a party-appointed arbitrator to the same duties of independence and impartiality as a presiding arbitrator (See Gary B. Born, International Commercial Arbitration (Third Edition), §13.04[A][2] (Kluwer Law International), updated February 2024). If a common nationality tells against an arbitrator’s independence and impartiality, then party-appointed arbitrators should never be of the same nationality as the appointing parties. The ICSID Rules are more consistent. Further, obligations of arbitrator disclosure are now very onerous. Detailed disclosure may be a stronger indication of arbitrator independence than a passport, which makes considerations of nationality per se less relevant. Where countries are at war or their relations otherwise hostile, it may be assumed that their nationals will at least not appear independent and impartial in deciding claims involving the other countries’ nationals. Beyond that, a nagging sense remains that arbitrators will favour their compatriots and a perception – fair or otherwise – that this is especially true of certain nationalities. However, in their paper, Malcolm Langford, Daniel Behn and Maksim Usynin undertook a statistical analysis of decision patterns in investor-State proceedings up to August 2018. They divided arbitrators into Western and non-Western rather than by nationality. While they supported drawing arbitrators from a wider pool as a matter of policy, they questioned whether this would materially change results.
Clichés, Conflicts and Going Native
The question of arbitrator nationality arose in recent decisions of the SCC and LCIA. In each case, a party had challenged the institutional appointment of a presiding arbitrator inter alia on the grounds that the arbitrator de facto held the nationality of the other party. In neither case did the arbitrator hold that nationality de jure. In both cases, the institution rejected the argument that an arbitrator’s life and career could make him a national of a particular country by other means. According to the LCIA’s Challenge Decision 19 of 8 December 2020, the nationality requirement for arbitrators under Article 6 is a formal requirement, judged by arbitrators’ passports rather than their life stories. In Case 38, reported in SCC Board Decisions to Arbitrator Challenges 2020-2024, the SCC Board made a similar distinction: “[A]n arbitrator’s professional experience in a particular area of law, legal writing and teaching, and/or past employments in the country of one of the parties, do not per se raise doubts in the arbitrator’s impartiality or independence.”
In an unreported case brought by a Balkan investor, Violetta Dvornikova, against Austria, the PCA rejected a challenge against Austria’s appointee, the German arbitrator Rolf Knieper, on the grounds that inter alia Knieper had grown up in West Germany and members of his family fought on the German side in the Second World War (See Alison Ross, ‘German arbitrator survives challenge in case against Austria’, Global Arbitration Review, 19 June 2026). The investor argued that his “socialization” in West Germany during the Cold War would have prejudiced him against the investor, whose family had fought on the side of the Soviets and lived in the Eastern Bloc. In dismissing the challenge, the Secretary General of the PCA noted that the challenge was based on generalisations and assumptions about Germany and its nationals. The decision is not currently in the public domain, but, if the report in Global Arbitration Review is accurate, it may go down as one of the more grotesque attempts to dislodge an arbitrator. The challenge apparently lacked detail specific to Knieper. Nor are historical relations between States conclusive as to attitudes of individuals today. The coauthors are harmoniously working together today, yet their grandparents found themselves on opposing sides in the Second World War. However, the Dvornikova decision is a useful warning to practitioners to resist knee-jerk reactions to national prejudices, whether for or against a particular arbitrator. Too often arbitrators and counsel fall back on clichés of the sort, “Let’s appoint X. X is Ruritanian, and the Ruritanians work hard”.
The approach of the institutions is the right one. It allows for a balance between national allegiances and any appearance of bias, on the one hand, and the international nature of the profession, on the other. Anecdotally, the ramifications of arbitrator nationality can be elusive, not least because international arbitration attracts lawyers who are unusually international in background and outlook in the first place.
Often, arbitrators will have professional ties to foreign markets that are at least as strong as their ties to their own domestic market. For example, a good many francophone Swiss arbitrators have succeeded in Paris. Anecdotally, numerous arbitration practitioners hold more than one passport and may spend much of their careers abroad. In particular, Finns, Greeks and Austrians have a way of getting around. Expatriates’ and dual-nationals’ attitudes to their countries of origin can be complex and are certainly not universally warm. It would be practically impossible to identify meaningful criteria for national or quasi-national identities. Wisely, the LCIA and SCC decisions largely shut off any discussion of arbitrators going native in foreign climes. You can dress like the French, eat like the French and smoke like the French, yet you remain an American, despite your lifelong love affair with Paris.
The world may not be ready for the truly global arbitrator, yet an international outlook is essential to the profession. Questions of nationality remain awkward in the evaluation of arbitrator appointments, partly because it is difficult to gauge their true impact. A passport may say many different things about a person or indeed very little. Nonetheless, Paine’s words deserve to be invoked, if only aspirationally.
ABOUT THE AUTHORS
Daniel Greineder is Of Counsel at Kalbian & Hagerty. An English-qualified barrister with extensive civil law experience, he has acted in over 40 arbitrations, including cases valued at over USD 1 billion, under the major arbitral rules. He has practised at leading international firms and chambers in London, Geneva and Doha and is a native speaker of English and German. He has particular experience of disputes arising in the energy and construction sectors as well as of joint venture and corporate disputes. He was educated at Oxford University and City St. George’s, University of London.
Anastasia Simonova is an attorney and a Visiting Lecturer at the Higher School of Economics. She has extensive experience, gained both in leading law firms and major in-house legal departments. She has represented clients in international commercial arbitration and investment arbitration proceedings under the UNCITRAL, SCC, ICC and LCIA Rules. Anastasia is fully fluent in English and speaks French. She was educated at Queen Mary University, Moscow State University and the Higher School of Economics.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
