The Research Of The Arbitrator’s Appointment Preference In International Investment Arbitration

As one of the main international investment dispute settlement methods,international investment arbitration plays an important role in the settlement of international investment disputes.However,with the further development of international investment arbitration,the problems of the arbitration mechanism itself have gradually emerged,triggering a crisis of legitimacy of international investment arbitration.One of the aspects of questioning the legitimacy of investment arbitration is that the arbitrator in investment arbitration has a preference for the appointing party,which systematically favors the party who appointed him,which is inconsistent with the arbitrator’s requirements for impartiality and independence.In response to this problem,this paper is divided into four parts.First,it discusses the connotation and manifestation of the arbitrator’s appointing party’s preference,and then analyzes its causes and adverse effects.On this basis,it explores a reasonable way to deal with the appointing party’s preference.The first part analyzes the connotation and main characteristics of the arbitrator’s appointing party preference in international investment arbitration.Appointing party preference has obvious manifestations,that is,a systematic preference for an appointing party.Arbitrators who are supposed to be neutral on both sides of the dispute tend to be overly inclined to defend one party,resulting in the occurrence of judicial injustice,so it is not surprising that many criticisms and doubts have been raised.This chapter preliminarily introduces the specific connotation and main characteristics of the appointing party’s preference by means of concept definition and characteristic analysis,and responds to the views that question the real existence of the appointing party’s preference.The second part analyzes the actual possibility and main manifestations of the preference of the appointing party of arbitrators in international investment arbitration.This chapter first analyzes from the perspective of empirical research.Through statistical research on case information,it is found that the main body of arbitrators expressing dissenting opinions shows a suspicious regularity,that is,they are usually only issued by arbitrators appointed by the losing party;in the process of arbitrators adjudicating cases,There are two tendencies of treaty interpretation for disputed issues: expansionary interpretation and limited interpretation,and which trend is more conducive to the interests of the appointed party is an important consideration for the arbitrator to choose the interpretation method;the results of the case award also profoundly reflect the arbitrator influence of the appointing party’s preference.Through the analysis and statistics of the international investment arbitration award and other information,this paper proves the realistic possibility of the arbitrator’s appointing party preference.Subsequent analysis,stepping back,even if based on the limitations of empirical research,the existence of the client’s preference cannot be fully confirmed,but only the public perception,which will still have a negative impact on the credibility of international investment arbitration.This brings about a crisis of confidence in international investment arbitration.It is still of practical significance to respond to this problem and explore reasonable corrective measures.The third part further discusses the reasons and adverse effects of the arbitrator’s appointing party preference in international investment arbitration.The unique asymmetric characteristics of international investment arbitration,the combined effects of subordination and selection effects,and the lack of error correction mechanisms have led to the emergence and continuation of the arbitrator’s appointing party’s preference.Moreover,the preference of the appointing party described in this article is beyond the scope of the arbitrator’s involuntary psychological inclination allowed by the rules and regulations,and is a preference that violates the law and professional ethics.The impact of this preference is also evident.This has led to the questioning of the impartiality and independence of arbitrators by the international community.To a certain extent,it has produced an impact on public interests and even caused a crisis of confidence in the international investment arbitration system itself,which has undermined the credibility of investment arbitration.The fourth section focuses on the analysis of possible debiasing measures to deal with the influence of the arbitrator’s appointing party preference.This chapter first focuses on analyzing the basis of the arbitrator’s appointing party’s preference,that is,the issue of the existence or abolition of the party’s unilateral appointment mechanism.On this basis,the debiasing measures can be analyzed from both short-term and long-term perspectives.In the short term,we should focus on the problems existing in the international investment arbitration system,and repair the system in a small area.Specifically,it includes improving the code of conduct for arbitrators,and clearly regulates the selection criteria and disclosure obligations of arbitrators.In the long run,the influence of the unilateral appointment mechanism by the parties can be gradually reduced,such as the attempt to appoint a sole arbitrator and an arbitrator appointed by a third-party neutral institution,as well as the reform of the judicialization of arbitration,the establishment of an appeal mechanism and the construction of investment courts It can be regarded as a beneficial attempt.