2026 PAW 2026: The Centenary Backbone Debate on the Ethics of Arbitrators

Celebrating their 100th year in Paris, White&Case hosted one of the most unconventional yet engaging events of 2026 Paris Arbitration Week (“PAW”) in Salle des Tirages on Place Vendôme. The Oxford-style debate tackled the question of whether arbitrators adhered to the ethical principles they are guided by while presiding over the arbitral proceedings and making a decision eventually, or, as they titled it, “if they had any backbone”. Moderated and introduced by the humorous tone of White & Case Partner Charles Nairac, the event resembled a game show rather than a formal panel that everyone was attending throughout the week. However, under the light-hearted take on the topic lay a serious question that has been hanging in the minds of multiple parties involved in the arbitration realm: are arbitrators apt for the level of responsibility we bestow upon them?

The format of the debate, although inspired by a classic Oxford-style format, was unique in that it included a jury. The jury was composed of the end-users and ultimate stakeholders of arbitration, namely four in-house counsels: Thibault Delorme (Air Liquide), Alina Leoveanu (Atos Group), Jean-Marc Dethy (ENGIE), and Gonzalo Jaspe (VINCI Construction Grands Projets). They were the ones who would deliver the final evaluation regarding the arguments presented by the opposing teams on the motion.

On another important note, the positions of the two teams were completely assigned to them, irrespective of their own personal opinions on the matter. Speaking in favour of the motion were Eduardo Silva Romero (Wordstone Dispute Resolution) and Dame Elizabeth Gloster (Independent Arbitrator, Former Court of Appeal, One Essex Court), while Maxi Scherer (Queen Mary University London and ArbBoutique) and Paul Friedland (Friedland Arbitration LLC) were against the motion.

The Case For the Motion: A Crumbling System

At the outset of their arguments, Silva Romero started with a critique of the framing of international arbitration as the perfect solution. He argued that even though arbitration has long been advertised as quick, impartial, and overall efficient compared to conventional litigation, these attractive features of arbitration are increasingly shaped by international policy and commercial interests. Accordingly, economic incentives have prevailed over the pursuit of justice, particularly in investment arbitration. In addition, he highlighted wide discrepancies between decisions on similar matters involving comparable facts and treaties, which may prevent parties from making accurate forecasts and managing cases efficiently.

The second criticism focused on the lack of efficiency in arbitral timelines. Contrary to its reputation as the streamlined alternative to other ways of dispute resolution, Romero underlined that arbitration is far from a quick fix. On the contrary, it has become slow and burdensome for parties, with extensive written submissions and document production, even where not necessary. In his view, this aspect has been moving arbitration away from its initial promise of flexibility.

In a similar sense, Gloster expanded on the aforementioned points, with a focus on the lack of impartiality and reliance on arbitral procedures. By referencing her own personal experiences, she questioned whether arbitrators meet the standards of independence and impartiality required under guidelines such as the IBA Guidelines. She referred to instances suggesting the contrary, noting that in particular cases, arbitrators may interrupt counsels aggressively or intervene and even take over during cross-examination. Maintaining inappropriate proximity with the appointing parties also raises concerns regarding their impartiality. Considering this particular issue from a wider perspective, Gloster added the existence of arbitrators who seem to consistently favour certain states or investors, pointing to structural bias.

The final remarks of the case against the motion underlined that procedural inefficiencies and arbitration becoming unnecessarily formalized, paired with parties’ distrust in arbitrators' impartiality, deem the advantages of arbitration useless.

The Case Against the Motion: Misplaced Blame

In response to the striking motion, Friedland reframed the debate by asking whether the lack of “backbone” is the core of the problems surrounding arbitration. While he acknowledged that concerns regarding impartiality may arise, he argued that the real problem is too complex and systematic to be attributed solely to the performance of arbitrators.

Friedland continued by challenging the argument that places responsibility for inefficiencies in arbitration on arbitrators. Rather than decisions taken at later stages of the proceedings, he suggested that counsel play a more significant role in shaping the overall timeline. The most time-consuming and costly phase of arbitral proceedings is almost always the written stage, which may be extended by overly comprehensive litigation strategies.

He concluded that frustration with arbitration procedures is often directed at arbitrators, who may be perceived by counsel as the representatives of all shortcomings of the procedure. This, however, does not necessarily mean that all arbitrators lack ethics and a strong stance. Therefore, the solution to this blame shift lies in the careful selection of arbitrators capable of applying procedural standards accurately and effectively.

Scherer, with her tongue-in-cheek tone, reinforced the position against the motion, referencing data and also giving their competition as examples as well. She explained that delays in arbitration rarely occur due to arbitrators, and findings show that the bulk of the time consumed is during the submissions and document production. This is because, as she emphasised, arbitrators actually do enforce procedural rules, refuse unnecessary extensions and exercise strict case management the majority of the time. Accordingly, she concluded that the alleged lack of “backbone” is not a general characteristic of the arbitral community, putting emphasis on the relativity of the word’s meaning in this context.

The Jury as the End-Users

The debate continued with the questions and comments from the counsels’ point of view on the ethics of arbitrators.

Firstly, Delorme started with a balanced critique of both teams. He raised that the “due process paranoia” is a concern that every in-house counsel faces during proceedings. He also added that the team against the motion could have addressed the motion itself more thoroughly without getting too focused on the wording.

Leoveanu provided a detailed insight, explaining that in-house counsels are primarily interested in the company’s business goals instead of the dispute itself. Therefore, from this standpoint, arbitrators with weak case management skills present a threat to the proper conduct of the business itself. However, she also underlined that this should not be defined as an individual failing; rather, repeated appointments of certain arbitrators and the fee structure encourage sub-par performance in the sector.

Following Leoveanu’s business-centered take, Jaspe highlighted the lack of concern by arbitrators for the internal realities of firms involved, particularly from the standpoint of senior management. The financial implications and time investment, often lead senior executives to question past decisions and managerial performance. He concluded by asking whether arbitrators might act differently regarding the timeliness and efficiency if such considerations were more fully taken into account.

Finally, Dethy shifted the focus back to the core question of impartiality. As firms are mobilizing significant human resources during arbitral proceedings to provide accurate information, he emphasized that receiving an accurate assessment is of critical importance. He added that counsel often experience situations that give rise to legitimate suspicion in this regard, which can negatively affect users’ perception of the arbitration system as a whole.

The Round of Rebuttals

In rebuttal, the team in favour of the motion saw Romero acknowledge the frustrations expressed by the jury and reiterate that the concept of “backbone” lies at the heart of arbitration. He argued that the issues raised can easily be solved by stricter and more assertive case management by arbitrators. He concluded by noting that shifting the blame to counsel would not be appropriate, as lawyers operate within the procedural framework drawn by the tribunal.

Gloster similarly criticized the opposing team’s focus on the way the motion was worded instead of the improvement of arbitral practice. Drawing on her experience, she noted that in-house counsel frequently express concerns about arbitrators being insufficiently decisive or efficient. Arbitration, at its core, is not a profit-driven practice, but rather a mechanism for delivering justice.

For the team against the motion, the rebuttals rejected the notion that due process concerns are exaggerated. Friedland emphasised that many arbitrators are capable of taking firm and efficient decisions and handling the case accordingly. However, the challenge lies in choosing and appointing the right people.

Scherer closed with a reflective and slightly theatrical commentary, questioning how the notion of “backbone” is constructed in practice through the actions of the arbitrator. She suggested that counsel and parties may often associate “backbone” with speed or decisiveness of outcome, rather than with a deeper assessment of procedural quality.

The Verdict: Motion Rejected

Following the debate and after the final comments and feedback from the jury, the audience was invited to vote via a live poll. The result - 73% against the motion - indicated that although concerns regarding efficiency, impartiality, and procedural discipline are widely recognised, they cannot be attributed solely to the individuals appointed. Rather, the discussion suggested that the majority of the arbitration community considers that arbitrators manage the cases efficiently and take ethical and fair decisions, while acknowledging that other factors, such as institutional frameworks and party conduct, also contribute to the challenges faced in arbitration.