The Ban of Double Hatting in Investment Arbitration:
a double-edged sword?
- Vanina Sucharitkul
International arbitration has, in recent times, made efforts to address the growing concerns surrounding the practice of double hatting – the practice of counsels representing parties also accepting appointments as arbitrators in different proceedings. While the search for the optimal tool to regulate the practice has ranged from options such as a ban on concurrent appointments to the adoption of a code of conduct for arbitrators, some scholars have questioned the rationale for regulating the practice in the first place. This paper will challenge the axiomatic criticism of the practice of double hatting, and argue that instituting a ban on double hatting will severely prejudice the diversity and quality of arbitrators in international arbitration. In making these claims, the paper will analyse the principles of conflict of interest and issue conflicts which underpin the ban on double hatting. Using these parameters, it will argue that multiple roles donned by an arbitrator does not a priori warrant regulation and disqualification, but an assessment on a case-to-case basis, and highlight the flaws in the assumptions on which the ban on double hatting is premised. The paper will then engage with the proposed reforms surrounding double hatting in the recent ISDS-UNCITRAL Code of Conduct, and bring forth the systemic barriers created for women and second generation lawyers in securing arbitrator appointments, severely impacting the diversity and quality of the pool of arbitrators, and reinforcing the “male, pale and stale” stereotype of arbitrators in international arbitration.