75 Am. U. L. Rev. 461 (2025).

Abstract

This Article makes the case for changing the default settings for the selection of arbitrators in international commercial arbitration. For three-member tribunals, the rules of most international arbitration institutions provide that each party picks an arbitrator. The institution or the co-arbitrators then select the tribunal’s president. This prescription, which parties may set aside by agreement, codifies longstanding practices and corresponds to the strong preference of international arbitration insiders. Nonetheless, I argue that arbitration rules should default toward institutional selection of all arbitrators.

Switching the default nudges parties that can’t take full advantage of the arbitrator selection game—due to inexperience, lack of resources, or geography—toward a fairer arbitration process. Institutional selection of the entire tribunal reduces opportunities for insider parties to exploit selection and affiliation biases. Additionally, a setting in favor of institutional selection operates as a “penalty default.” It forces experienced parties to disclose their preference for party nomination and puts disadvantaged parties on inquiry notice about the tricky nature of arbitrator selection. There are also systemic reasons for making the switch, as institutions can use the increase in institutional appointments to improve representational balance. At the same time, transaction costs for opting out are low.

The proposed change to the choice architecture of arbitrator selection thus increases fairness in individual cases and promotes the longer-term legitimacy of international arbitration without sacrificing party autonomy.

* Associate Professor of Legal Writing and Co-Director of the Dennis J. Block Center for the Study of International Business Law, Brooklyn Law School. For discussions and feedback, I thank Simon Batifort, Richard Chen, Dave Fagundes, Amy Gajda, Aman Gebru, Jessica Roberts, Stacie Strong, Jason Yackee, and participants in the American Society of International Law Midyear Meeting, the Northeastern University School of Law Junior Faculty Workshop, and faculty workshops at Brooklyn Law School, Rutgers Law School, and the University of Houston Law Center. I am grateful to the Brooklyn Law School Dean’s Summer Research Stipend Program for financial support. Lastly, I want to acknowledge the excellent work of Brooklyn Law School’s librarians and of Caitlen Moser, Mary Reagan Phillips, and other American University Law Review editors.