Double-hatting is when an individual plays the dual role of an arbitrator and a legal counsel—a concept first introduced by Professor P. Sands during an IBA conference in 2009. While it hampers the credibility of the arbitral process, its proponents oppose a complete prohibition reflecting on its benefits. The author hypothesizes that this issue has been inadequately addressed in international commercial arbitrations in juxtaposition to international investment arbitrations. Supporting this, the author introduces the concept, tracing its judicial landscape and scholarly discourse in investment arbitrations highlighting the need to adopt a similar approach in commercial arbitrations. Thereafter, the definition of double-hatting in Article 6 (May 2020) and Article 4 (June 2021) of the draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement is analyzed while concurrently proposing an analogous definition for international commercial arbitrations. Lastly, the author proposes a framework to restrict double-hatting to counteract its negative implications in international commercial arbitration.
Restricting Double-hatting to Safeguard International Arbitrations,
22 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol22/iss1/3