Geopolitical tensions have fuelled a growing trend of arbitrators facing challenges based on their backgrounds, with increasing weight placed on, e.g., nationality and personal or professional views.

This guide draws on the SCC Arbitration Rules and the IBA Guidelines and applies generally to arbitrator challenges. The specific cases discussed below concern a select few SCC challenges raised on grounds of political opinion.

What are the grounds for challenge?

One principal ground for challenging an arbitrator is the existence of circumstances giving rise to “justifiable doubts” as to the arbitrator’s impartiality or independence under Article 19(1) of the SCC Arbitration Rules. Many other arbitration rules adopt similar wording.

What are “justifiable doubts”?

Under the IBA Guidelines, justifiable doubts are assessed from the perspective of a reasonable, informed third person. The Guidelines identify circumstances that, depending on the facts, may give rise to justifiable doubts, broadly as follows:

• Non-Waivable Red List items: an arbitrator cannot act;
• Waivable Red List items: an arbitrator can only act if they first disclose and the parties expressly agree to the appointment;
• Orange List items: arbitrator has a duty to disclose;
• Green List items: generally, do not require disclosure.

Political opinion is not a distinct category under this framework, but the SCC cases discussed below show how the SCC Board has handled challenges raised on that ground.

What the parties relied upon for the challenge

In an article published on the Kluwer Arbitration Blog, the SCC examines eight cases involving challenges to arbitrators on grounds of political opinion. Only two of these challenges were sustained; the remaining six were dismissed.

All eight cases involved social media, primarily LinkedIn. The material relied upon was not always posted by the arbitrator personally, reflecting the emerging practice of thorough online vetting of arbitrators by parties.

Which factors have the SCC Board weighed?

Attribution to the arbitrator

Statements made by a law firm or chambers are not automatically attributed to the arbitrator. Mere membership in a firm that has adopted an institutional position, or the republishing of that position, is not on its own sufficient to create justifiable doubts. No challenge based solely on a law firm’s conduct has succeeded to date, and barristers’ chambers are treated as having an even more tenuous link.

Active vs passive conduct

Liking a post is more passive than commenting on it and may signal general support for its author rather than endorsement of its specific content. That said, the nature of the post itself still matters, so passive engagement is not automatically safe.

Nexus to the present case

A prior appointment involving unrelated parties, a different legal framework, and no factual or legal overlap shows no relevant nexus, and statements not directly tied to the case’s facts generally fail to establish one. Naming the parties or the specific facts is not always required, however: criticism of, e.g., a State’s policies where that State was a party and subject to sanctions was considered sufficient, as was support for a specifically disputed issue such as sanctions.

Practical takeaways

• Arbitrators retain the right to hold political opinions; what matters is the manner of expression and its nexus to the dispute.
• Arbitrators should expect parties to screen online activity, e.g., LinkedIn and X, as standard due diligence when vetting arbitrator candidates or building a challenge.
• Statements by law firm or chambers alone are generally considered to be a weak basis for a challenge; personal or active advocacy by the arbitrator is typically of a greater concern.
• A like or other passive interaction is less likely to result in a successful challenge compared to an authored comment or post, though the content of the underlying post remains relevant.
• A challenge as a result of an arbitrator’s general political commentary is unlikely to succeed; statements directly relevant to an issue in dispute can succeed even without naming the parties or the case.
• We advise arbitrator candidates to review their public social media history for statements touching on issues live in the specific dispute before accepting appointment.
• When assessing or bringing a challenge, please apply the lens of a reasonable, informed third person, and expect a case-by-case analysis.

See the SCC Practice Note: SCC Board decisions on challenges to arbitrators 2020–2024.