Despite the popularity of the age-old practice, several prominent arbitrators and industry leaders have
proposed eliminating party-appointed arbitrators. These critics contend that party-appointment injects bias
into a tribunal that is supposed to be impartial.

Various empirical studies seem to confirm the uncomfortable contradiction between the rhetoric of impartiality
and the purportedly biased conduct of party-appointed arbitrators. Most of these empirical claims,
however, are deeply flawed both in their substance and methodology. More fundamentally, these claims
ignore Legal Realism’s insight that decision-maker “bias” (or reliance on extra-legal factors) is an inevitable
consequence of law’s inherent indeterminacy.

If some forms of bias are inevitable, it does not make sense to ask whether bias exists. Instead, more
nuanced questions must be asked: Which forms of bias are legitimate? Who decides which forms of bias
are legitimate? And how do we police the boundary between legitimate and illegitimate forms of bias?

This Article answers these questions with respect to party-appointed arbitrators.

Rejecting both critiques and defenses, this Article makes an affirmative case for party-appointed arbitrators.
This Article reconceptualizes party-appointed arbitrators as an essential structural check against
various forms of cognitive bias that necessarily exist among all arbitrators on all arbitral tribunals.

Arbitrators’ cognitive biases cannot be eliminated, even by eliminating party-appointed arbitrators. They
can, however, be bounded and counter-balanced by reconceiving party-appointed arbitrators as a type of
Devil’s Advocate that guards against the cognitive biases that distort tribunal decision making.
In this reconceptualized role, party-appointed arbitrators serve three important functions: 1) They provide
a check against individual- and group-based cognitive biases 2) They also ensure representativeness on the
tribunal; and 3) they provide a structural counterweight to the opposing party-appointed arbitrator. This
reconceptualized role, in turn, delimits a range of specific impartiality obligations that are both more
conceptually coherent and more consistent with actual practice and expectations.