Introduction

1. May 1997. At the time of his appointment as Chairman of the ICC International Court of Arbitration, Robert Briner, at an LCIA conference, made one of the observations for which he has become famous: short but comprehensive, to the point and clear. He said that transparency and predictability are key elements in arbitration. I could not agree more.

2. December 2002. I had asked Robert for a meeting to discuss the initiative the IBA had taken to introduce Guidelines regarding the Standard of Bias and Disclosure in International Commercial Arbitration (as they were then called). Ever the perfect host, Robert invited my wife and me for dinner in Paris. Secretary General Anne Marie Whitesell joined us. I thought that both in writing before our meeting and during the course of the dinner I had submitted strong arguments in favour of the IBA project. Robert was critical but I did not sense him to be negative. However, as we walked back to our hotel, my wife said: 'You'd better forget about the whole project.' This incident reflects better on Robert's diplomacy than on my intuition. In the event, I decided not to defer.

3. As we now know, the IBA project was not abandoned. Less than two years later, in May 2004, the Council of the International Bar Association approved the IBA Guidelines on Conflicts of Interest in International Arbitration (as they were eventually called). 1Was that good or bad? Having chaired the Working Group for the project, I am obviously biased. Yet, given the strong support the Working Group received when drafting the Guidelines, I am inclined [Page933:]

to conclude-objectively as well as subjectively-that it was a good idea to undertake the project and that the Guidelines may, if not will, play an important role in a truly international approach to the very difficult question of conflicts of interest, and in particular the delicate issues of disclosure by and challenges against arbitrators.

4. This contribution was written only nine months after the IBA Council approved the Guidelines. It is far too early to judge what relevance-if any- the Guidelines have had in the international arena so far. It may well be that when this contribution is published, about a year after it was written, experience will have shown that they do not work. At this point in time, the only thing I can do is to set out what, in my view, is required to make the Guidelines work.

Background to the IBA Guidelines

5.Briefly, the background to and purpose of the Guidelines are as follows:

-It was noted in the international arbitration community that arbitral proceedings were increasingly being hindered by conflict-of-interest issues and problems associated with disclosure by and challenges against arbitrators.

-It was also noted that the standards for disclosure and tests for challenges lacked sufficient clarity and uniformity in their application.

-A Working Group (consisting of nineteen members from fourteen different jurisdictions) was established under the auspices of the IBA to study these matters and analyse whether the problems could be resolved. 2

-The Working Group analysed the relevant law, rules and practice with regard to disclosure and challenges in a number of relevant jurisdictions, both common law and civil law.

-The Working Group then formulated some general recommendations on standards that could be applied ('General Standards'). It also attempted to list a number of specific situations that do or do not call for disclosure by or the disqualification of an arbitrator. [Page934:]

-These proposals were widely distributed for discussion in the international arbitration community. Notably, they were sent to a number of arbitration institutions, practitioners and corporate counsel throughout the world and were discussed at various international meetings. The Working Group received many comments, which greatly influenced the final proposals. 3

6. A few general remarks may be made about the Working Group's findings and experiences during the course of the project. First, the Working Group's analysis showed that, in essence, there was little difference between the laws and rules of the various jurisdictions with regard to the issues involved. Second, it took the Working Group no more than two years to agree on the General Standards and a number of highly sensitive issues, such as the conflict problem within law firms. Third, even if many comments-sometimes strongly critical- were received on the draft Guidelines published by the Working Group, there was in general worldwide support for the project in itself and for the Working Group's approach. Fourth, even while still in draft form, the Guidelines were already being used as a reference in challenge proceedings in various places.

The problems and how the Guidelines approach them

7. When defining the problems, a distinction can be made between those of a legal nature and those of a practical nature.

The legal problems may be defined as follows:

- Conflicts of interest in relation to arbitrators are, in principle, always approached and considered in light of the notions of independence and impartiality (cf. Articles 12 and 13 of the UNCITRAL Model Law on International Commercial Arbitration). 4[Page935:]

- What does the independence/impartiality of the arbitrator mean?

- What criteria should be applied in this context?

- What should an arbitrator disclose and not disclose?

- Should disclosure automatically entail disqualification?

- If not, what criteria should apply to disqualification?

The practical problems are as follows:

- Can criteria be drawn up for addressing and resolving these problems?

- If so, how are they to be applied in actual practice?

8. The Working Group concluded that certain criteria could provide answers to the legal problems, and formulated seven General Standards in this respect. With regard to their application, it listed a number of situations that could occur in actual practice and indicated how these situations might be approached in terms of disclosure and (decisions on) challenges. This resulted in three lists: the Red List (situations in which an arbitrator should in principle not serve), the Green List (situations in which the arbitrator can serve and which he need not even disclose) and the Orange List (situations which should be disclosed but which would not automatically entail disqualification). The Red List is split into a waivable and a non-waivable part. The Working Group concluded that, in light of the-in its view-overriding principle that one should never be a judge in one's own case, there are situations in which an arbitrator should not serve, even with the consent of the parties.

9. I will not discuss the Guidelines in detail, but simply highlight a number of noteworthy points.

-The criterion for disclosure by an arbitrator is, in principle, a subjective one: an arbitrator should disclose what could make him or her biased 'in the eyes of the parties'. 5

-However, it was felt by the Working Group-one of whose aims was to try to limit frivolous challenges-that this principle should not be applied one hundred per cent. Hence the proposal of a Green List of situations in which the arbitrator need not make a disclosure.

-Disclosure does not automatically mean disqualification. [Page936:]

-The test for a challenge, after disclosure, should not be subjective ('the eyes of the parties'), but objective. As General Standard 2(c) says:

Doubts are justifiable if a reasonable and informed third party would reach the conclusion that there was a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision. 6

-Lack of disclosure alone does not give rise to a presumption of bias (or lack of impartiality or independence).

10. The Green List was one of the most controversial proposals made by the Working Group. At any rate, it has elicited the biggest response from commentators outside the Working Group. It has been pointed out-understandably-that there is an inherent inconsistency between the Working Group's choice of a subjective test for disclosure, on the one hand, and the adoption of the Green List, on the other. In the same vein, many commentators have observed that, even when applying an objective test, it is still possible to find a conflict of interest, or the appearance of one, in some of the specific situations mentioned in the Green List.

11. True as these remarks may be, they were outweighed, in the opinion of the Working Group, by the fact of frivolous challenges that are experienced all over the world. The Working Group believes that some situations should (as a rule) never lead to disqualification under the objective test. Allowing parties to delay proceedings by making objections or challenging arbitrators in such situations would, in the Working Group's view, not be in the interest of good practice. It was this consideration that ultimately prevailed over arguments against introducing a Green List. 7As Jan Paulsson has since said, while an appropriate level of disclosure is indispensable, there is a point of diminishing and indeed negative returns. 8[Page937:]

What is required to make the Guidelines work?

12. A first requirement is, of course, that the Guidelines will be used; a second requirement is that they offer sufficient guidance when used; and a third requirement, in my view, is transparency and predictability.

Will the Guidelines be used?

13. I have no doubt that the Guidelines will be used by parties in connection with challenges. This has already been the case, even while they were still in draft form. I also know that arbitrators are using the Guidelines when considering what they should disclose.

14. Will the Guidelines be used by the bodies that have to decide on challenges, namely arbitration institutions, (other) appointing authorities and State courts? If, as I believe, it is true that parties will refer to the Guidelines in challenge proceedings before arbitration institutions, other appointing authorities and in State courts, there is reason to think that such bodies may use them as well. However, there is more to this question. Let me start with State courts.

The Guidelines and State courts

15. When the Guidelines were at their final stage, I had much correspondence with some of my English friends-leading barristers and well-known and experienced international arbitrators. They queried whether or not, notably in common law countries, the IBA Guidelines would collide with national law. They argued that, if certain principles had already been affirmed by the Courts in those countries, collision could well occur. I responded that the research conducted by members of the Working Group into a considerable number of jurisdictions all over the world (civil as well as common law) did not show any clear risk of collision. Besides, the Guidelines are not intended to be law or rules of law, nor to set aside any national rule of law, as is expressly stated in the Introduction:

These Guidelines are not legal provisions and do not override any applicable national law or arbitral rules chosen by the parties. 9

16. The Guidelines are intended, rather, to supplement national law. The Working Group found that in many jurisdictions what an arbitrator should disclose and when an arbitrator can be successfully challenged are scarcely regulated. [Page938:]

Those rules that do exist are mainly of a general nature-such as Articles 12 and 13 of the UNCITRAL Model Law-and it is left to the courts to flesh them out. Where courts had already fleshed out the relevant criteria, the Working Group found no evidence of conflict with the Guidelines. The challenge case dealt with by a Dutch court, which I will discuss below, provides a good illustration: although the court did not specifically base its decision on the (brand new) Guidelines, the criteria it applied were essentially the same as those set out in the Guidelines.

17. The Working Group acknowledged that a national court is not bound by the Guidelines. It may rule that an arbitrator who failed to disclose a certain fact, because he or she thought it was a Green List situation, was wrong. It may rule that, under its national law, not all situations on the waivable Red List are waivable. It may 'overrule' a decision by an appointing authority, as happened in the Dutch case discussed below.

18. I am not overly concerned with such risks, for two reasons.

First, given the Working Group's own analysis of the law in a number of jurisdictions and the comments it received from all over the world, I do not believe that the Guidelines in themselves, or in any important respect-and certainly not in many important respects-are in clear conflict with any national law. If that were the case, it would certainly have been signalled. There may, of course, be exceptions. We heard, for instance, from one German commentator that, under German law, parties are not entirely free to waive their rights, as is presumed under the waivable Red List. We were also told by commentators from certain common law countries that, in case law, certain principles had been articulated in terms other than those of the Guidelines. But, at the same time, it was acknowledged that in the future the courts might well, in similar situations, adopt the line of thinking or even the language of the Guidelines. Also, in many jurisdictions-including those belonging to the common law system-judge-made law is not entirely clear and the Guidelines could well provide a benchmark for courts when exercising their discretion and/or shifting the boundaries of existing law. Judge-made law can change from time to time.

Second, as clearly pointed out in the Guidelines, this is only the first step. 10The Working Group took stock of the law in many jurisdictions and then formulated certain principles that appeared to reflect best practice in inter[Page939:]

national arbitration. In doing so, it tried to follow what it understood to be the general current of the law in the jurisdictions it had analysed. It hopes that institutions and State courts will endorse the approach it followed and proposed in the Guidelines. If this leads to a conflict with mandatory law somewhere, the Guidelines can only benefit from such knowledge and this can be taken into account when the Guidelines are reviewed. 11

19. The same can be said of any other experience in using the Guidelines, wherever this might be. If experience shows that some of the Guidelines lack sufficient clarity or that on some points the Working Group came to conclusions that do not correspond to users' wishes or expectations, that experience will be relevant when the Guidelines are reviewed.

The Guidelines and arbitration institutions

20. Arbitration institutions have shown some reluctance to embrace the Guidelines, which has been a cause of concern for many, but not for me. Institutions have their own rules and longstanding practices. They cannot be expected suddenly to change these-even if they are in agreement with the approach taken in the Guidelines. However, it could well be that the remarks I made above in relation to State courts also apply to arbitration institutions. Neither the case law of courts nor that of arbitration institutions is written in stone: both can and do change over time. I am convinced that if the international arbitration community finds the Guidelines helpful, institutions and State courts will at least take them into account, if not use them.

21. The ICC International Court of Arbitration has stated that it is not bound by the Guidelines. When parties agree to ICC arbitration, the ICC Court will apply its own rules and take decisions on independence in accordance with those rules. I have been advised that, in cases where the parties have agreed that the IBA Guidelines should be applied to an ICC case, the ICC Court will inform the parties that it will apply the ICC rules concerning independence and disclosure as these form a mandatory element of the ICC arbitration system. The ICC Court has a problem with the Green List in particular. For the situations [Page940:]

listed here, objective criteria have been applied to decide that disclosure is not required. Under the ICC system, however, the 'eyes of the parties' must always be taken into account.

22. Once again, I am not overly concerned. It is my understanding that, under the ICC system, disclosure does not automatically mean that an arbitrator will not be confirmed. It is conceivable that, even if the ICC Court does not formally adopt the Green List, it will reject a challenge if it is clearly based on a Green List situation. Similarly, to give another example, even if the ICC Court does not formally adopt the three-year period put forward in the Guidelines as, in principle, terminating a possible conflict situation, 12it cannot be excluded that the ICC Court will do so in practice.

23. Here, too, it would be wise to wait and see how things develop. If at some point in the future there is clear evidence that the Green List or other conclusions in the Guidelines were a bad idea, consideration will need to be given to changing them. If it turns out that the Green List and other conclusions work, I see no reason why the approach of the ICC Court cannot be changed.

Will the Guidelines offer sufficient guidance?

24. If it is hoped that the Guidelines will be used not only by parties in a dispute but also by State courts and arbitration institutions, the first requirement is obviously that the General Standards and the situations mentioned in the three lists offer sufficient guidance. I am confident that, at the present time, the General Standards adequately cover the problems that have to be addressed. This is borne out by the situations in which I have been involved since the Guidelines were published (even in draft form) and those that have been reported to me. On the other hand, I am equally certain that the lists do not cover the great variety of specific situations that can occur-not to mention the fact that, inevitably, these lists often refer to generally formulated standards like 'controlling influence', 'significant interest', 'significant relationship' and the like. What is striking, however, is that virtually all of the situations so far encountered in practice of which I am aware have proved to be covered either directly by a situation listed or by analogy with one of the situations on the lists. In this respect, I had an interesting experience shortly after the IBA Council approved the Guidelines. [Page941:]

25. The first challenge case before a State court happened to occur in my own jurisdiction. 13The facts were briefly as follows. During a BIT arbitration under the UNCITRAL Arbitration Rules, one of the arbitrators-a well-known and highly respected international arbitrator-accepted an assignment as counsel in which he had to seek the annulment of an ICSID award under Article 52 of the ICSID Convention. A party to the pending arbitration felt that this was a true conflict, being convinced that one or more of the questions of principle in the pending arbitration were similar, if not identical, to the principle(s) on which the tribunal in the ICSID case had ruled and against which the annulment action was brought. It felt that since the arbitrator was required to attack the tribunal's line of thinking in the ICSID case, he could not at the same time form an independent or impartial judgment in the pending arbitration case. The arbitrator thought differently, however, arguing inter alia that the two cases were totally unrelated. The party in question challenged the arbitrator before the appointing authority, the Permanent Court of Arbitration. The PCA rejected the challenge in a letter of several pages, quoting the correspondence exchanged but without stating any reasons. The challenging party then submitted the case to the district court at The Hague. 14The court upheld the challenge and ruled that the arbitrator should resign from the pending case unless he withdrew from the annulment proceedings against the ICSID award. The arbitrator did the latter. 15

26. Both parties relied on the IBA Guidelines in their arguments before the court. The challenging party admitted that the specific situation of an arbitrator in a particular case acting at the same time as counsel in another case involving the same principle is not specifically mentioned in the Guidelines, and in particular does not appear in the Lists. However, it argued that this situation is covered by General Standards 2(b) and (c) and, at least by analogy, situation ¶ 3.5.2 of the Orange List:

The arbitrator has publicly advocated a specific position regarding the case that is being arbitrated, whether in a published paper or speech or otherwise. [Page942:]

The respondent argued, with regard to the Lists, that situation ¶ 4.1.1 of the Green List applied:

The arbitrator has previously published a general opinion (such as in a law review article or public lecture) concerning an issue which also arises in the arbitration (but this opinion is not focused on the case that is being arbitrated).

27. In its reasoning, the court did not specifically apply the Guidelines, but approached the matter from the perspective of Dutch law. In doing so, it applied the objective test, emphasizing that the appearance of justifiable doubt should also be taken into account. 16The court considered that even if, in the pending arbitration, the arbitrator were able to detach himself sufficiently from his role in the ICSID annulment proceedings, it might appear that this was not the case. Thus, the court applied criteria prevailing under Dutch law, which accord with those set out in the Guidelines.

28. During the debate in court, the judge raised the following interesting question:

In a case dealt with by a Dutch court, should the court distinguish between international and national arbitration in the sense that the IBA Guidelines apply to international arbitration but domestic criteria to national arbitration?

My answer is no. I see no reason for drawing this distinction if one adopts the view-as I do-that the criteria set out in the Guidelines reflect best practice.

Transparency and predictability

29. Transparency is an important factor in arbitration in general, and there is no reason why this should be otherwise where conflicts of interest are concerned. On the contrary, it is precisely in the field of conflicts of interest that transparency is extremely important. If information is not forthcoming on how the Guidelines are used (if they are used), if we are unable to learn whether or not they offer sufficient guidance in a given situation, if there is no means of knowing whether certain principles-e.g. the three-year time limit or the Green List-are accepted or not, how can it be decided whether or not they are useful and where they could or should be improved when reviewing them in the future? [Page943:]

30. This, in my view, leads inevitably to the conclusion that arbitration institutions and other appointing authorities should start giving reasons for their decisions and publishing them. I have always found it an anomaly that an institution does not state its reasons for a decision on a challenge or publish that decision, whereas a State court, if called upon to rule on the same matter, will give reasons, which are in the public domain. The Dutch case referred to above is a striking example. I am reminded of Kafka's story The Refusal. 17In a traditional Chinese village a delegation of inhabitants asks the mandarin for a government subsidy because the town's slums have been burned to the ground. The mandarin listens to the request, motionless, and, after quite a while, says: 'The petition has been refused, you may go.' 'Kafkaesque' may still be an interesting notion in the world of literature; it should have no place in world jurisprudence. To my knowledge, there are only a few institutions that reason their decisions on challenges and none that publish them. 18Obviously, the publication of unreasoned decisions serves no purpose. Since terminating my activity in the Working Group, I have discussed this question with a number of institutions. The institution in my own jurisdiction-the Netherlands Arbitration Institute-reasons its decisions, but does not publish them. 19The LCIA recently started to reason its decisions on challenges and I have been advised that publication of its decisions is under discussion. According to my information, the same applies to the American Arbitration Association. The PCA neither reasons nor publishes its decisions.

31. Before finalizing this contribution, I met with Robert Briner and Anne Marie Whitesell to discuss this question. They explained why it was complicated for the ICC Court to reason its decisions on challenges. The reasons they gave included the fact that decisions are always taken by a plenary session of the Court and that delegation to a small committee, such as is the case with the LCIA, is not feasible; and that, for various reasons, it is complicated to work out reasons for Court decisions on challenges, as members may have different reasons for coming to the same conclusion. On the other hand, they agreed that it could be valuable to publish the Court's line of thinking, at least on matters of principle. One could imagine publication from time to time in the ICC International Court of Arbitration Bulletin, as has been done in the past with awards relating to the UNIDROIT Principles of International Commercial Contracts. For the time being, that would seem to be an excellent solution.

32. If reasoned decisions on challenges are published or alternative means[Page944:]

found to make public the reasoning underlying such decisions, this will lead to greater transparency. It may also lead to greater predictability. By this, I am not implying across-the-board uniformity, for there can never be full uniformity in decisions on challenges, as each factual situation is different and one cannot provide further fixed criteria for such open standards as those mentioned above. However, it might lead to uniformity-and thus predictability-on a number of basic questions, such as:

-Is the three-year time limit provided in the Guidelines for a number of situations acceptable in principle or is it too long or too short?

-Is the principle of General Standard 6(a) that the activities of the arbitrator's law firm are not per se a source of conflict acceptable, or should it-at the very least-be reversed? 20

-Is it acceptable that there should be no distinction depending on the stage which the arbitration proceedings have reached? 21

-Can a Green List as such be accepted?

-Whether certain situations belong, in principle, on the Green List (e.g. 4.2.1 or 4.3.1) rather than the Orange List, or on the Orange List rather than either of the Red Lists.

33. The question arose, in the context of the Working Group's discussions, whether a single, global authority to which decisions by arbitration institutions on challenges could be appealed might be envisaged. I doubt if that is a good or practical idea. First, the time seems hardly ripe for such a far-reaching step. Second, if total uniformity in all respects is unattainable, the advantage of such a centralized approach seems to be of limited value. Third, the final word on any challenge will always be with a State court. Even if one could create some uniformity through a centralized arbitration authority that would rule on challenges, there is no guarantee of any similar uniformity in State court decisions worldwide. For this reason too, a centralized approach would seem to have limited value-and indeed perhaps even more disadvantages than advantages. [Page945:]

Concluding remarks

34. Let us return to my opening anecdotes. If Robert is right-and he is-that transparency and predictability are key elements in international arbitration, there is in general no reason why these key elements should not play a decisive role in relation to conflicts of interest too. On the contrary, transparency on the manner in which the Guidelines are used-or not used-is of the utmost importance.

35. And what about Robert's misgivings over the IBA project as such? Two observations may be made. First, despite the reservations expressed at the initial stage of the project, the ICC International Court of Arbitration, and particularly its Chairman and Secretary General, have been of great help in trying to make the product as good as possible-not only through comments, given in a very open and constructive manner, but also in thinking about potential solutions. Possible publication of the ICC Court's line of thinking is just one example of this. That input certainly influenced the thinking of the Working Group and the final result. Second, as the Introduction to the Guidelines puts it, the Guidelines should be applied with robust common sense and without unduly formalistic misinterpretation. The same goes for the ICC Rules of Arbitration. Those acquainted with Robert Briner know that he has the qualities required to do just that. This is one of the reasons why I can only regret that he is leaving the ICC Court, for had he stayed on, I am sure there would have been further productive cooperation over the application of the Guidelines, in a manner not only Robust, but also Broadminded, Rational, Intelligent, Nice, Energetic (even if not Enthusiastic) and Realistic. [Page946:]

1
They were subsequently published in a special booklet and are available at <www.ibanet.org/images/ downloads/guidelines%20text.pdf>. Background Information on the Guidelines was published in Business Law International, vol. 5, no. 3 (September 2004) 433 (<www.ibanet.org/images/downloads/ Background%20Information.pdf>).

2
The Working Group was the result of two separate initiatives-one by Arthur Marriott QC and one by the IBA's Committee D-which led to the creation of two groups to study the subject. It was not long before the two groups merged.

3
The Working Group published two drafts for the Guidelines: the first on 7/15 October 2002 (entitled Draft Joint Report of the Working Group on Guidelines regarding the Standard of Bias and Disclosure in International Commercial Arbitration), and the second on 22 August 2003 (entitled IBA Guidelines on Impartiality, Independence and Disclosure in International Commercial Arbitration). These drafts were discussed in great detail at the IBA conferences in Durban and San Francisco in October 2002 and September 2003 respectively, at various symposia in many countries and also at the Lisbon conference of the Union internationale des avocats in September 2003.

4
I will not dwell on the difference between the two notions. See section 24(1)(a) of the English Arbitration Act of 1996, where only impartiality is referred to as a ground for removing an arbitrator (where there is justifiable doubt), Article 1(a) of the same Act, which also refers to the impartiality of the tribunal, and Article 7(1) and (2) of the ICC Rules of Arbitration, where only independence is referred to.

5
General Standard 3(a). See also Article 7 of the ICC Rules of Arbitration

6
There may be exceptions. The Guidelines note one exception, namely the phenomenon of the non-neutral arbitrator in the US.

7
See the explanation to General Standard 3, paragraph 9 of Part II of the Guidelines, and page 449 of the Background Information on the Guidelines.

8
In his Annual Keynote Address to the Chartered Institute of Arbitrators London Branch in April 2004, 'Ethics and Codes of Conduct for a Multi-Disciplinary Institute' (2004) 70 Arbitration 193

9
Introduction, para. 6

10
See Introduction, para. 7.

11
It was the Working Group's firm intention that use of the Guidelines should be monitored as closely as possible and that a review should take place after a few years in the light of the experience acquired (as will happen in 2005 for the IBA Rules on the Taking of Evidence in International Commercial Arbitration, which were promulgated in 1999).

12
See e.g. Orange List 3.1 and Background Information on the Guidelines at 454-55, § 4.4. The three-year period was derived from the criterion used by the European Union, where former members of the Commission are free to take competing jobs after three years.

13
I should disclose that I was involved in this case as counsel for the challenging party.

14
It is possible under Dutch law to follow this route after an appointing authority has delivered its ruling.

15
For the record, I should add that the challenging party subsequently returned to court, arguing that the challenge should have been upheld unconditionally, since its challenge was aimed at having the arbitrator withdraw from the pending arbitration, not from the annulment proceedings. This second request was denied by the court, which found that, on the basis of available evidence, no harm had yet been done to the challenging party's position in the pending arbitration and that further harm, in terms of conflict, could be avoided by the arbitrator withdrawing from the annulment proceedings.

16
See Background Information at 441.

17
Franz Kafka, The Complete Stories (New York: Schocken, 1995).

18
Judy Freedberg kindly drew my attention to two reasoned decisions by an appointing authority published in the Yearbook Commercial Arbitration, vol. XXII (1997), pp. 222-26 and 227-42.

19
There have only been a few challenges-seven over a period of more than fifty years.

20
As advocated in some of the comments received by the Working Group.

21
General Standard 3(d).