MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn J.Arb.Int. 2001, p. 563]. Apart from the arbitration proceedings, Dr. Arbitrator will not have any business relationship to CLAIMANT. 7. Even if he had some kind of business relationship to CLAIMANT, this would not be sufficient to consider him partial or dependent. The mere fact that there is some business relationship between an arbitrator and one of the parties to the arbitration is not in and of itself sufficient to disqualify the arbitrator [Commonwealth Coatings Corp. v. Continental Casualty (U.S.); Reed & Martin, Inc. v. Westinghouse Elec. Corp. (U.S.); Ilios S. & T. Corp. and American (U.S.); Granzow, p. 110; Bernstein et al, No. 2-179] because arbitration proceedings are not in all circumstances comparable to dispute resolution by public courts. 8. The major advantage of arbitration as a means of dispute resolution is the opportunity to have a Tribunal that is more aware of the subject matter of the dispute than a court skilled in legal argument but with only limited knowledge of the subject matter [Merit Insurance Company v. Leatherby Insurance Company (U.S.); Commonwealth Coatings Corp. v. Continental Casualty Co. (U.S.); Garfield & Co. v. Wiest. (U.S.); Born (1 st ed.), p. 600]. Arbitration is the resolution of international commercial disputes by experts who have great knowledge of international trade law. Being an expert is the result of being engaged in occupations in the commercial world before, during and after the arbitral proceedings. Working in an international law firm, which has hundreds of clients, offers the best opportunity to become such an expert. Dr. Arbitrator is one of those experts with a great reputation in his field of business [Procedural Order No. 2, Clarification No. 26], meaning he has accumulated considerable knowledge of international trade law, based on previous professional experience. The number of such experts is limited and in addition there is a growing demand for qualified arbitrators because the popularity of arbitration as a means for resolving international commercial disputes has increased significantly over the past decades [for example, the world’s leading international arbitration institution – the ICC – handled request for 32 arbitrations in 1956, 210 arbitrations in 1976, 337 arbitrations in 1992, 452 arbitrations in 1997, and 529 arbitrations in 1999]. 9. As a result, the mere fact that someone is acting as an arbitrator in a matter involving a former client of the law firm cannot raise justifiable doubts as to his impartiality or independence. 5
Rheinische Friedrich-Wilhelms-Universität Bonn b. Dr. Arbitrator has no financial interest in the outcome of the arbitration 10. Since the relationship between Dr. Arbitrator and CLAIMANT is not sufficiently close to make any reasonable person doubt his impartiality or independence [Commonwealth Coatings Corp. v. Continental Casualty Co. (U.S.); Hunt v. Mobil Oil Corp. (U.S.); Local 814, Int'l Bhd. of Teamsters v. J & B Installers & Moving, Inc. (U.S.); National Shipping Company of Saudi Arabia v. Transamerican Steamship Corp. (U.S.); OLG Naumburg, 19 December 2001 (Germany); von Hof, p. 80; Y.B. XXII (1997) p. 234], there have to be additional matters to justify his challenge. An indication for bias would be given if Dr. Arbitrator had any financial interest in the outcome of the arbitration [cf. Middlesex Mutual Ins. Co. v. Levine (U.S.); Transmarine Seaways Corp. of Monrovia v. Marc Rich & Co. A.G. (U.S.); Reed & Martin, Inc. v. Westinghouse Elec. Corp. (U.S.); National Shipping Company of Saudi Arabia, Transamerican Steamship Corp. (U.S.); Sun Refining & Marketing Co. v. Statheros Shipping Corp. of Monrovia, Liberia (U.S.); U.S. Wrestling Federation v. Wrestling Division of AAU, Inc. (U.S.); Born (1 st ed.), p. 601; Pellonpää/Caron, p. 160]. This would be the case if he had a reasonable expectation of increasing his own income unduly favoring CLAIMANT during the arbitration proceedings, in order to procure additional business for Multiland Associates. 11. However, his participation in this law firm is far too unimportant to suggest any direct financial interest in the outcome of the arbitration. After the merger of 1 January 2003 there will be 75 partners in 15 offices at different locations [Procedural Order No. 2, Clarification No. 18]. The income earned by each partner is in large part determined by the profits of the particular individual office and only in small part the profits of the entire firm [Procedural Order No. 2, Clarification No. 19]. Dr. Arbitrator’s participation in hypothetical fees earned in future cases is so negligible that a financial interest in the outcome of the arbitration cannot be assumed. c. Dr. Arbitrator’s disclosure underlines his impartiality and independence 12. In addition, Dr. Arbitrator disclosed the merger of the law firms and therefore complied exactly with his obligations under § 16.3 DIS Rules. He even met the high requirements set by the leading U.S. Supreme Court decision in a domestic case, Commonwealth Coatings Corp. v. Continental Casualty Co. (U.S.) [Y.B. XXII (1997) p. 232; Born (1 st ed.), p. 598]. In this decision, the Supreme Court held that arbitrators have to disclose any circumstances that might impact their impartiality, since the same ethical standards apply to both judges and 6
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
Page 3 and 4: Rheinische Friedrich-Wilhelms-Unive
Page 9 and 10: Index of Authorities Rheinische Fri
Page 11 and 12: Derains, Yves / Schwartz, Eric A. D
Page 17 and 18: Witz, Wolfgang / Salger, Hanns Chri
Page 19 and 20: Belgium Rheinische Friedrich-Wilhel
Page 31: Rheinische Friedrich-Wilhelms-Unive
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MEMORANDUM FOR CLAIMANT

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