US federal courts take limited review of parties’ challenges to arbitrators

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By Kiera S Gans and Joshua Kane

Challenges to arbitrator appointments have become a hot topic in international arbitration, having arisen in several high-profile international arbitrations this year.

Mimicking some of the cases arising in the international arena, two recent cases in the US provide some new insight as to how the US courts might approach claims of arbitrator bias. In each case, the court considered its review of the issue to be limited, either holding that the question should be arbitrated or applying a high threshold for establishing arbitrator bias.

In May, India challenged two appointments in an investment treaty dispute with CC/Devas and other entities, alleging that the arbitrators’ public statements indicated predetermined views on a legal issue central to the case. Argentina is also currently challenging two arbitrators in a different case involving Repsol, on the basis that Prof Francisco Orrego Vicuña is biased against the country because it has successfully sought annulment of awards rendered by tribunals he has chaired and that another member of the panel, Claus von Wobeser, is likewise biased because the law firm representing the claimant has retained him as co-counsel or has appointed him as arbitrator in previous disputes…

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