Independence and Impartiality of arbitrators in international ...

deprived him of a hearing and influenced the outcome of the arbitration. In another case
titled as Austin South I, Ltd v. Barton-Malow Co 63 . it is stated ‘mere fact that an arbitrator
conversed with a party at some point during the proceedings is insufficient to establish
evident partiality’. Therefore, mere ‘communication with parties’ is not a appropriate word
as used in most of the commercial arbitration legislation, it must be further supported by
constructive explanation.
U.S. courts have also permitted that ex-parte contact can always be made by the prior
permission of parties involved, therefore, in case of Employers Ins. Of Wausau v. National
Union Fire Ins. Co. 64 it was held that there is no misconduct where arbitrators make
communication with the permission of parties involved.
Disclosure
In most of the international commercial arbitration legislations the word ‘disclosure’ has been
used, meaning thereby, arbitrator must disclose any previous or present relation with the
parties involved, in order to make the arbitral process transparent and unbiased. In this regard
leading U.S Supreme court decision in case of Commonwealth Coatings Corp. v. Continental
Causality Co. 65 , relied upon the fact that the neutral chairman was failed to disclose his fourto-five
year relationship as consultant with one of the party to the arbitration. Through which
he earned $12,000, including commission on the present arbitration. Supreme Court in the
instant case vacated the award on the non-fulfilment of requirement of partiality. Therefore,
disclosure as to facts, particularly business relationships, is indeed a proper provision and
must be observed for the purity in the arbitral process and it is also been stated that this duty
becomes more important if the lawyers are of the same chamber 65-a .
After the Common wealth coatings case, the U.S. courts termed it as a declaration of public
policy 66 and in many other national jurisdictions arbitrator’s independence has also been
regarded as public policy 67 , as arbitration is pure private process of resolving dispute and any
corruption in the arbitral process lose the confidence of volunteering parties involved in the
arbitration.
Conclusion
From the above discussion it can be concluded that theoretically every legislation on
international commercial arbitration has made obligatory for the arbitrator’s independence
and impartiality which includes article 9 and 10 of UNCITRAL Arbitration Rules 68 , article 7
of the ICC Rules 69 , article 5 of the LCIA Rules 70 , rule19 and 20 of the AAA Commercial
Rule 71 , article 12 of UNICITRAL Model Law on International Commercial Arbitration 72 ,
article 17 of Stockholm Chamber of Commerce Arbitration Institute rules 73 , article 22 of
World Intellectual Property Organisation rules 74 and many others. These legislations demand
that arbitrator must disclose all the facts which can effect the merits of the award and must not
make any communications with the other party or the adverse arbitrator. In most of the
63
Austin South I, Ltd v. Barton-Malow Co., 799 F.Supp. 1135 (M.D. Fla. 1992)
64 th
Employers Ins. Of Wausau v. National Union Fire Ins. Co., 9333 F.2d 1481, 1490-91 (9 Cir.
1991)
65
Commonwealth Coatings Corp. v. Continenetal Casuality Co., 393 U.S. 145 (1968)
65-a
E Keer Stephanie and W Naimark Richard , 'International Private Commercial Arbitration:
Expectations and Perceptions of Attorneys and Business People at the Beginning of the Case' 30(5)
International Business Lawyer, 203.
66
Transmarine Seaways Corp. v. Marc Rich & Co., 480 F Supp. 352 (S.D.N.Y. 1979)
67 Born Gary B, supra note 3, at p869
68 See supra note 27
69 See supra note 13
70 See supra note 16
71 See supra note 19
72 See supra note 32
73 See supra note 38
74 See supra note 39