Double Hatting - Lexology 12/9/22, 19:11

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Double Hatting
Mauro Rubino-Sammartano

Global August 25 2020

Notion
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)

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Double Hatting - Lexology 12/9/22, 19:11

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.

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Double Hatting - Lexology 12/9/22, 19:11

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.

Mauro Rubino-Sammartano - Mauro Rubino-Sammartano

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