The Expert's Gambit: Reframing 'Issue Conflict' in Modern Arbitration

Pranjal Srivastava^[1] and Pragati Yadav^[2] 

Introduction

Imagine this: An arbitrator, one of the most respected law professors in her field, is appointed to a billion-dollar dispute turning on one question: Can a state's new data privacy law, which unintentionally guts the value of a foreign tech investment, count as indirect expropriation? The parties appoint a leading law professor, chosen specifically for her deep expertise on the subject. The wrinkle? Her most recent book argues, quite persuasively, for a legal interpretation that happens to favor the state.

She has no financial interest in the outcome. No personal connection to the parties. Her only link to the case is her own public, intellectual commitment to a particular legal view. This puts the parties in a bind: have they appointed the perfect expert, or someone who is already predisposed to rule against them, Further, this situation raises the questions whether the principles of party autonomy, independence and impartiality of the arbitrator are truly being upheld in the guise of expertise.

This is the heart of an 'issue conflict,' and it may be one of the most difficult ethical tests in modern arbitration. While the existing rules handle financial conflicts well, they offer little guidance on the fuzzier problem of intellectual bias. In an age that demands deep specialization, the system actively seeks out arbitrators with well-defined opinions. It seems a new framework is needed to manage that reality.

The Problems: When Expertise Ends and Bias Begins

Defining an 'issue conflict' requires some precision. Learned Justice Tomka whilst deliberating upon the merits of the challenge in CC/Devas vs India observed that

“The basis for the alleged conflict of interest in a challenge invoking an "issue conflict" is a narrow one as it does not involve a typical situation of bias directly for or against one of the parties. The conflict is based on a concern that an arbitrator will not approach an issue impartially, but rather with a desire to conform to his or her own previously expressed view… To sustain any challenge brought on such a basis requires more than simply having expressed any prior view; I must find, on the basis of the prior view and any other relevant circumstances, that there is an appearance of prejudgment of an issue likely to be relevant to the dispute on which the parties have a reasonable expectation of an open mind.”  

In the words of Sinclair: … an ‘issue conflict’ in arbitration describes the existence of actual or apparent bias on the part of the arbitrator stemming from his or her previously expressed views on a question that goes to the very outcome of the case to be decided. It denotes the arbitrator’s relationship to the subject matter of the dispute, and his or her perceived capacity to adjudicate with an open mind”.  There are primarily three situations which may be circumscribed under the ambit of issue conflict: conflicts arising (i) where the arbitrator has previously acted in the capacity of a counsel in the pertaining subject matter, (ii) where, acting as an arbitrator, he has ruled on similar subject matter/issues, and (iii) , when an arbitrator has already taken a firm, public stance—in an academic paper, a book. Now, it is important to note that this is not a rigid categorization and often, overlaps arise, where a conflict is not falling under one of the above categories. For example, an individual might act as an arbitrator and he has also written articles about the similar subject matter. Still, the broad purview of what an issue conflict is remains the same.

The present article, for the sake of brevity will focus its discussion on the third category of issue conflict arising primarily due to a previous scholarly disposition of the arbitrator.

This category of conflicts creates a true paradox of specialization. As commercial and treaty disputes become more complex, involving everything from cryptocurrency to CRISPR gene-editing technology, parties desperately need decision-makers who understand the subject matter deeply. A generalist judge simply won't do. Yet, the more of an expert someone is, the more likely they are to have researched, analyzed, and formed strong conclusions on the key issues in their field. The very quality we seek in an arbitrator—deep expertise—appears to be inextricably linked to the potential for pre-judgment. We are hiring them for their opinion, but what if they’ve already given it?

Our primary tool for navigating arbitrator ethics, the IBA Guidelines on Conflicts of Interest in International Arbitration(especially Part II), wasn't really built for this problem. The Guidelines’ color-coded lists (the Non-Waivable Red List, the Orange List, and the Green List) are brilliant for mapping conflicts arising from financial and professional relationships. They tell us what to do if an arbitrator’s firm has advised a party or if they hold shares in a subsidiary. But they offer virtually no guidance on what to do if an arbitrator is the world's leading intellectual proponent of a legal theory that will decide the entire case. This seems to be a significant gap in our ethical framework.

Ambiguity in Law and Practice

Without clear rules, parties and institutions are left navigating this territory with a vague and unreliable compass: the universal "justifiable doubts" standard. Found in virtually every major arbitration law, including the UNCITRAL Model Law, this standard asks whether circumstances exist that give rise to justifiable doubts as to an arbitrator's impartiality or independence. But what is "justifiable" when the source of the doubt is the very expertise for which an arbitrator was chosen? The standard may be too blunt an instrument for such a delicate task.

This uncertainty has resulted in unpredictable outcomes. The pivotal UK Supreme Court case, Halliburton Company v Chubb Bermuda Insurance Ltd, offers a valuable point of reference. Though the case focused on an arbitrator's lack of disclosure regarding multiple roles in related matters, its primary insight is significant. The Court highlighted that the duty to disclose is essential and should be evaluated from the perspective of the "fair-minded and informed observer." It’s difficult to contend that a fair-minded observer, upon discovering that their adjudicator had already reached a definitive conclusion on the most crucial legal issue in the case, wouldn’t wish to be informed about it in advance.

The battleground for issue conflict is most active in investment arbitration, where these tensions are on full display. A quintessential example is the challenge brought against a leading academic, Professor Vaughan Lowe, in Caratube International Oil Company LLP v. Republic of Kazakhstan.

The Challenge in Caratube v. Kazakhstan

The dispute concerned an oil exploration contract. The claimant, Caratube, alleged that Kazakhstan had violated its obligations under the Energy Charter Treaty, particularly the standard of Fair and Equitable Treatment (FET). Professor Lowe, a highly respected public international law scholar from Oxford, was appointed to the tribunal.

Kazakhstan challenged his appointment, arguing not that he had a financial interest, but that his academic writings revealed a pre-formed and "narrow" view on the doctrine of legitimate expectations, a key component of the FET standard. This was a classic issue conflict scenario: the very expertise that made Professor Lowe a desirable candidate—his extensive scholarship on international investment law—was being used as a weapon to question his impartiality.

In its Decision on the Proposal for Disqualification, the tribunal rejected the challenge. The decision is illuminating. The two other arbitrators acknowledged that an arbitrator should not have a "closed mind," but astutely observed that "jurists do not live in ivory towers; they live in the real world." They reasoned that requiring arbitrators to have no pre-existing views on any legal issue would be an impossible standard. It would disqualify virtually every experienced academic, judge, or practitioner from serving. The tribunal found that Professor Lowe's writings, while demonstrating a clear viewpoint, were academic in nature and did not suggest he would be unable to consider the specific facts and arguments of the case before him.

The Caratube decision highlights the immense difficulty here. While Professor Lowe was not disqualified, the fact that such a challenge was mounted based purely on his scholarly work shows how contentious this area is. If academics fear their scholarly work will disqualify them from future appointments, they may simply stop writing on controversial topics, impoverishing legal debate for everyone.

A Proposed Solution: The 'Spectrum of Predisposition' Test

What appears to be needed, then, is a more sophisticated tool—a framework that provides clarity while preserving the vital role of expert arbitrators. A "Spectrum of Predisposition" could serve as a three-tiered test, designed not as a rigid rulebook, but as a guide for disclosure and, in rare cases, disqualification.

Level 1: Permissible Expertise (Green Light) This is the baseline and covers the vast majority of situations. An arbitrator has general expertise and has written or spoken on the broad area of law relevant to the dispute. For example, an arbitrator in a construction case has authored a textbook on construction law. This is precisely why they were selected. No disclosure should be required, and it cannot be grounds for a challenge.

Level 2: Mandatory Disclosure (Yellow Light) This is the crucial middle ground where our current framework fails. This level is triggered when an arbitrator has expressed a firm, published view on a specific, narrow, and potentially dispositive legal issue in the present case. For example, a dispute turns on whether an AI system can be legally recognized as an "inventor" on a patent application. The appointed arbitrator recently published a law review article titled, "Why AI Can Never Be an Inventor: A Doctrinal Analysis." Under this test, this does not mean automatic disqualification. However, it triggers a mandatory duty of disclosure. The arbitrator must proactively inform the parties of their specific published position. This respects the principle from Halliburton and empowers the parties, who can then accept the arbitrator or raise a challenge based on a complete set of facts.

Level 3: Presumption of Disqualification (Red Light) This highest level is reserved for the rare case where an arbitrator has crossed the line from academic to activist. This isn't just about having an opinion; it's about actively campaigning for it. This could involve lobbying governments to adopt their legal interpretation, serving as an expert witness for another party on the exact same legal point, or using language so extreme and one-sided ("no reasonable person could ever conclude otherwise") that it demonstrates a palpably closed mind. In these exceptional circumstances, a presumption of partiality should arise, shifting the burden to the arbitrator and the party who appointed them to prove they can still be impartial.

Conclusion

The nature of global disputes is evolving, and our ethical standards for those who resolve them must evolve too. The issue conflict conundrum is not a fringe problem; it strikes at the heart of the promise of arbitration: to provide fair, impartial, and expert justice. We cannot simply ignore the paradox that our search for expertise creates. By adopting a more nuanced framework like the 'Spectrum of Predisposition,' we can move beyond the outdated balance sheet approach to conflicts. This could bring clarity to a murky area of law, reduce tactical challenges, and, most importantly, reinforce the legitimacy of the arbitral process for an increasingly complex world.

---

^[1] Pranjal Srivastava is a fourth year BBA LLB (Hons.) student from MNLU Nagpur.

^[2] Pragati Yadav is a fourth year BA LLB (Hons. in Adjudication and Justicing) student from MNLU Nagpur.