When a cross-border contract goes wrong and the parties turn to arbitration rather than the courts, the single most consequential decision they will make is not where the hearing takes place or which rules apply. It is who sits as arbitrator. In the United States, where parties routinely draw on both domestic and international frameworks, the appointment process has its own logic and getting it right early saves a great deal of difficulty later.
I write this as an English arbitrator in USA, admitted in New York and D.C., as well as England & Wales, and as a Cambridge educated arbitrator in America; I have spent most of my career moving between exactly the common law traditions this article is concerned with. That dual footing is precisely what parties should be screening for when they sit down to appoint.
Start With What the Dispute Actually Requires
Before any name is put forward, it is worth pausing on what the case genuinely needs. A dispute over a joint venture gone sour calls for a different kind of arbitrator than one over a delayed shipment or a disputed royalty formula. I generally advise clients to describe the dispute in plain commercial terms first and only then translate that into the legal and sectoral expertise an arbitrator should bring. Appointing on the strength of a well-known name, without asking whether that background actually fits the dispute, is one of the more common and avoidable mistakes I see.
Decide Between an Institutional and an Ad Hoc Route
In the United States, parties typically appoint through one of two routes. An institutional appointment, under bodies such as the ICDR, AAA or an international institution named in the contract, follows a defined procedure: each side nominates, or the institution proposes candidates, and there is a structured challenge process if either side objects. An ad hoc appointment, most often under UNCITRAL Rules, gives the parties more direct control but also more responsibility for reaching an agreement without an institution to break a deadlock. Neither route is inherently better; the right choice depends on how much the parties trust each other to cooperate once a dispute has already arisen, which, in practice, is often not very much.
Check the Arbitration Clause First
It sounds obvious, but the starting point is always the arbitration clause in the underlying contract. Many clauses specify the number of arbitrators, the appointing authority, qualifications required of the arbitrator and the seat of arbitration, all of which shape who can be appointed and how. Where the clause is silent or ambiguous, the applicable institutional rules or the Federal Arbitration Act will fill the gap, but that default position is rarely as well suited to the dispute as a properly drafted clause would have been.
Vet for Independence, Not Just Credentials
Once a shortlist exists, the appointing party’s diligence should go well beyond a CV. Prior relationship with counsel, prior appointments by the same law firm and any financial or professional connection to either party all need to be checked against the relevant conflict of interest guidelines, most commonly the IBA Guidelines on Conflicts of Interest in International Arbitration. An arbitrator’s disclosure statement is the starting point for this exercise, not the end of it; a careful party reads it against the arbitrator’s own published record and asks follow-up questions where anything looks incomplete.
Weigh Jurisdictional and Sectoral Fit
For disputes with a genuinely international dimension, appointing someone who understands only US domestic litigation practice can create friction, particularly where the counterparty and its counsel come from a civil law background. An arbitrator who has practised across multiple jurisdictions and who is comfortable with both common law and civil law approaches to evidence and procedure tends to manage that friction far better than one working entirely within a single tradition. The same logic applies to sectors: energy, construction, technology licensing and shareholder disputes each carry their own commercial vocabulary and an arbitrator fluent in that vocabulary asks sharper questions at the hearing stage, which usually produces a better-reasoned award.
A shipping or cargo dispute is a good example. A maritime dispute arbitrator who already understands charterparty structures, bills of lading and general average claims will move through the substance far faster than one encountering these instruments for the first time, and that speed usually translates directly into lower costs for both sides.
This is particularly true where a joint venture or shareholder relationship has broken down. A partnership dispute arbitrator brings a feel for how these disagreements actually unfold, which is rarely limited to the clause being cited and is usually worth more at the appointment stage than general commercial experience alone.
Confirm Availability and Finalize the Appointment
Once a candidate is identified, the practical steps are straightforward. Still, they should not be rushed: confirm availability for the likely hearing timetable, obtain a signed statement of independence and impartiality and in a three-member tribunal, allow the two party-appointed arbitrators to agree on a chair rather than leaving that choice to chance. Where the parties cannot agree, most institutional rules and the Federal Arbitration Act provide a fallback appointment mechanism. However, this is generally a less satisfactory outcome than a negotiated agreement.
Appointing the right arbitrator is ultimately less about ticking procedural boxes and more about matching expertise to dispute. I regularly serve as a member of the arbitral Tribunal USA in exactly these circumstances and am glad to discuss a specific appointment or nomination directly.
If you are weighing an appointment for a live or anticipated dispute, feel free to get in touch to discuss the specifics of your matter.
