Independence and Impartiality of arbitrators in international ...

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disqualification’ 28 , this definition point out that arbitrator must disclose all the facts which could be his relation with the other parties before his appointment in order to come under the shadow of independence and impartial. Further article 10 states that ‘any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the impartiality or independence’ 29 , here the word justifiable doubts has been used which is again an unclear situation, as doubts can never be justified, in my opinion a replacement of more proper legal word such as proof of impartiality or independence could be a better terminology. Moreover the UNCITRAL rules are also silent on grounds for disqualification, therefore, it will be difficult to judge that what will be the standard of justifiable-doubts. On this issue England’s court in case of AT&T Corp v. Saudi Cable Co 30 have provided disqualification test for arbitrators on grounds of bias, which is same as for the Judges 30-a . Other Conventions/Statutes/National Legislation International statutes such as UNICITRAL Model Law on International Commercial Arbitration (deals comprehensively with the issues that arise in national courts 31 ) under article 12 it make an obligation clause as to arbitrator’s independence and impartiality 32 . Under IBA Ethics for International Arbitration a detail explanation has been given as to arbitrator’s independence, impartiality and prohibition of communication with the parties and confidentiality in the arbitral process has been demanded. Beside international arbitration legislation, ‘national legislation often has vitally important impact on the successful resolution of dispute by international arbitration’ 33 therefore in English Arbitration Act, 1996 it is been stated that arbitrator will be bias if circumstances exist that give rise to justifiable doubts as to his impartiality’ 34 , also in US Federal Arbitration Act, 1925 it is stated that an award will be vacated if it is found that arbitrator have some element of partiality and corruption 35 . Further, in Code of Ethical Conduct of Hong Kong International Arbitration Centre 36 , it has been incorporated that arbitrator must remain impartial with continuity till the award is final, moreover the arbitrator will not engage in communication and will avoid impropriety, same obligations have been made in Arbitration Act, 1994 of China 36-a . As per Australia, the Australian Centre for International Commercial Arbitration recommends for the UNICITRAL model law 37 and arbitration is governed by the said rules, however, Australian courts have approved privacy in arbitration proceedings 37-a . Stockholm Chamber of Commerce Arbitration Institute 38 also describes that arbitrator must be independent and Impartial and makes it obligatory that the arbitrator if in any relation with a party, must inform it in writing. Beside above, the world organisation like World Intellectual Property Organisation has also 28 Redfern A and Hunter M, supra note 2, at p216 29 UNCITRAL Arbitration Rules, 1976, Article 10 (1) 30 AT&T Corp v. Saudi Cable, supra note 10 30-a ICC Arbitration Rules,1998, Article 7 (1) 31 Born Gary B, supra note 3, at p30 32 UNICITRAL Model Law on International Commercial Arbitration, 1985 , article 12 33 Born Gary B, supra note 3, at p, 34 Arbitration Act, 1996, section 24 (1-a), available at http://www.hmso.gov.uk/acts/acts1996/96023c.htm#22 as of 25/03/05 at 19:41 35 The Federal Arbitration Act, 1925 section 10(2), Title 9, US Code, available at http://www.chamber.se/arbitration/shared_files/laws/arbitract_us_cont.html as of 25/03/05 at 19:52 36 See Ethical Conduct for Arbitrators in ‘Panel of Arbitrators’, available at http://www.hkiac.org/en_guideaa_4.html as of 25/03/05 at 21:07 36-a Dihuang Song, ‘People's Congress finally regulates China's domestic and international arbitration’, Lloyd's List International, November 18, 1994 37 See Legal Frame Work of International Arbitration in Australia, available at http://www.acica.org.au/international-arbitration.html#services as of 25/03/05 at 21:17 37-a Alder Edward, ‘Confidentiality not an essential attribute of Australian arbitration’, Lloyd's List International, July 26, 1995 38 See Arbitration Institute of Stockholm Chamber of Commerce, available at http://www.sccinstitute.com/uk/Rules/ as of 25/03/05 at 21:30
incorporated in WIPO Arbitration rules, 1994 under article 22 39 that arbitrator must be independent and impartial and confer a duty on arbitrators to disclose, as in many other international arbitration legislations. European Convention On International Commercial arbitration of 1961 40 , deals with arbitration among the European countries, in this convention as such nothing has been incorporated for the independence and impartiality of the arbitrator, however article III states that foreign national may be designated as arbitrators 41 , which is not comprehensive to deal with the issue of independence and impartiality of arbitrators. As per above stated statutes convention and national legislation, almost every legal documents demanded for the independence and impartiality for the arbitrator but fail to provide exhaustive explanation as to factors which can be relied upon in convicting an arbitrator as well as silent on liability of arbitrator in case of wrongful behaviuor 41-a . To know what these factors are the discussion under practical perspective provides a close answer on bases of case study, which is as follows; Independence and Impartiality of Arbitrators in Practical Perspective Independence and impartiality is the key factor in whole arbitration process as Hong-Lin Yu and Laurence Shore states that it is a private justice 42 and if arbitral process is bias than indeed corporate groups will lose confidence in it. The provisions given by different international commercial arbitration legislations all over the world is not enough to administer a proper private justice as word ‘justifiable-doubts’ is not self-explanatory and ‘disclosure’ is insufficient to eradicate dependence and partiality of arbitrators. Practically, the arbitrators representing the interest of parties in the international arbitration is not new 43 . Arbitrators have been called the agent of parties by many writers 43-a . ‘Arbitrator’s fee’ 43-b from the pocket of involved party could be one reason. But it is been also said that parties may nominate the arbitrators if they are impartial 43-c , in this context Andrew Foyle states ‘check for conflicts or factors which might affect their independence’ 44 . Another writer explain arbitrator independence and impartiality as it ‘’has a current direct or indirect relationship with a party or potentially important witness, or where he has had past business relationships, including those of such a magnitude and nature as to be likely to affect his judgement’’ 45 , and some where it is describe as ‘The Neutral is to be guided by principles of fairness and impartiality’ 46 . Under the following lines an attempt has been made to interpret the legal terminology use in the international commercial arbitration on the basis of case law; 39 See WIPO Arbitration Rules, 1994 article 22, available at http://arbiter.wipo.int/arbitration/rules/index.html#comp2 as of 25/03/05 at 21:44 40 See Appendix A, Born Gary B, supra note 3, at p981 : also see Rabcewicz-Zubkowksi-L-Kos, ‘East European Rules on the Validity of international Commercial Arbitration Agreements’, Manchester University Press Oceana Publications, Inc., 1970, at p256-267 41 European Convention on International Commercial Arbitration, 1961, article III 41-a Holtzman and Nehhaus, A guide to the UNICITRAL MODEL Law on International Commercial Arbitration, Kluwer, 1989, at p1119 : also see Melis, A guide to Commercial Arbitration in Austria, 1983, at p16-17: also see Van den Berg, The Immunity of Arbitrators, (Law ed., 1990), at p59 42 See Hong-Lin Yu and Laurence Shore, supra note 1 43 Redfren A and Hunter M, supra note 2, at p211 43-a Merlin, 9 'Recueil Alphabétique de Questions de Droit' (4th edn 1829), at 144 : See translation Samuel. A, ‘Jurisdictional Problems in International Commercial Arbitration: A Study of Belgian, Dutch, English, French, Swedish, Swiss, US and West German Law’ (Zürich and Schulthess: Polygraphischer Verlag Zurich, 1989), at 34. : also see Foelix. J, ‘Traite du Droit International Prive’ (2nd edn 1847), at 461 43-b Lane. C, 'The Tainted Sources of "The Bell Curve" ' The New York Review of Books (1 Dec 1994), at 18 43-c Craig, Park & Paulsson, International Chamber of Commerce Arbitration, 2 nd edition, 1990, at p209 44 Foyle. A, ‘Arbitration: an introduction to the procedure’ NLJ 152.7049(1417), Reed Elsevier (UK) Ltd, 2002. 45 Melnyk T, ‘How to select a party-appointed arbitrator’ NLJ 152.7049(1420), New Law Journal (Reed Elsevier (UK) Ltd ), 27 September 2002. 46 Reynolds. M. P ‘International Commercial Arbitration Rules Review’ Con & Eng Law 7.3(35) EMIS Professional Publishing Ltd, 11 October 2002.
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