Double hatting is commonly used to refer to the practice of arbitrators who also carry on other activities such as counsel or expert witness. This means that someone who acts as arbitrator in some proceedings acts “the subsequent day” (so to say) in other proceedings for example as counsel or expert witness, possibly even in front of arbitrators who have been acting as Counsel before him in the above referred to arbitral proceedings.
Advantages of the double hatting
Many people involved – or who may be involved – in arbitration may not, in their expectation to be appointed as arbitrators (without being able to foresee how many times) put an end to their other professional activity.
Double hatting then allows more people to play two such roles, what is good for them also from an economical point of view.
This is also useful to arbitration users since it allows them to select arbitrators from a wider basket. Eventually this practice strengthens the formation of the arbitrator who, when sitting in such a capacity, can also benefit from his/her experience as Counsel, and who, when acting as counsel, benefits from his/her experience of arbitrator. This is not only to the advantage of that individual, but also of users who may instruct a more experienced person.
Disadvantages of the double hatting
The most striking disadvantage of this practice is the Damocles’ sword of conflicts of interest, followed by the raising of suspicions – sometimes grounded and sometimes not – of bias.
Apart from that, psychologically, an arbitrator, while listening to submissions by counsel and then deciding the dispute, might be influenced by the thought that “the following day” (so to say) he/she may appear as counsel before one of those counsel, who is now sitting as an arbitrator. This may induce in some arbitrators, even if fortunately not in all of them, to take this into account in deciding. This may also give rise to exchange of appointments between arbitrators, or between a counsel and an arbitrator, what may also depend on the way that arbitrator has been conducting himself/herself in their previous contacts. The French word “copinage” describes exchanges of favours.
Double hatting also produces the result that one acts only on a part time basis both as counsel and as an arbitrator.
Reactions to the double hatting ?
Very differing views have been expressed on the issue whether double hatting is to be allowed or not. Apart from views in the abstract, in daily life a wide tolerance – when not complaisance – of the double hatting has to be recorded.
Actual prohibition of double hatting is consequently rare. As it has been rightly pointed out by Clarissa Coleman and Louise Bond, in their article on “Two heads are better than one” published in Lexology, in 2009 the Court of Arbitration for Sport prohibited it in its regulations and was followed by the European Commission, which took a very negative view of it and decided in favour of a dispute resolution procedure, different from traditional arbitration, consisting in the creation of investment courts, advocating a multilateral investment Court in which the dispute is decided by people “without outside activities”.
The more recent draft Code of Conduct, presented by ICSID and Uncitral, offers an alternative between refraining from acting “as counsel, expert witness” or in other roles, and just disclosing it.
Towards a profession of arbitrator ?
A prohibition of double hatting would lead to a consistent reduction of the number of arbitrators, what on the one hand in general is not a positive result, but which on the other hand might avoid the appointment of people who have little or no experience of arbitration, and whose main quality might be just to be a friend or to have some good links with the appointor.
This might involve taking further steps such as those, including certification of arbitrators, as advocated by this writer in “A second (quasi perfect?) storm also in arbitration ?”, J. Intl. Arb. 34, no. 6 (2017), 925-934. If this line should be brought to its extreme conclusion, it might be followed by a further step: the creation of a regulated profession of arbitrators.
It would probably take a long way to reach that stage and it is to be seen whether this would be the best conclusion of this long path.