Party Autonomy and the Market for Arbitrators: Can Better Access to Information about Arbitrators Prevent Market Failure?

Few arbitration users will encounter an arbitrator who openly engages in misconduct. Many, however, will recognise the quieter frustration of dealing with an arbitrator who appears unprepared, unresponsive, or inattentive to the nuances of the case. This article suggests that such experiences are symptoms of a more fundamental structural issue in international arbitration: a lack of effective accountability for the adjudicative services arbitrators provide. It begins by examining whether abolishing or narrowing arbitral immunity could remedy this problem but concludes that such an approach would both unduly threaten arbitrators’ independence and fail to offer a realistic path to reform.The article instead argues that the more promising solution lies in correcting the current imbalance between the first-hand, experience-based knowledge that arbitrators and a small circle of repeat users possess about arbitrator performance, and the vague, largely anecdotal impressions on which the broader pool of users are often forced to rely when making appointments. Drawing on economic analyses of information failures, efficient markets, and adverse selection, it portrays the market for arbitrators’ services as one in which parties often lack the concrete, qualitative information needed to distinguish between high and low performing arbitrators. In this context, the article calls on arbitral institutions—given their central position in the arbitral ecosystem—to take concrete, institutionally feasible steps to improve access to reliable, qualitative information about arbitrator performance, thereby strengthening party autonomy and improving the quality of arbitral adjudication.div/div