IV Edición Revista Derecho en Sociedad - Ulacit

DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013
Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica
Common Problems in Arbitral Tribunals
Innocent and non-­‐drastic situations, although still irritating problems can be presented. It
is common that the hearing, or scheduling conference, has to be postponed on repeated
occasions due to the busy agendas that international arbitrators 39 usually have. Although
some of these problems can be practically harmless, there have been reports 40 of
annulment of awards due to this situation.
Common scenarios of frequent communication between one party and ‘it’s’ arbitrator has
been commonly reported. In this matter, there are international Guidelines that point out
this type of behavior as not proper 41 . However, is not to confuse or to create a general
prohibition of communication between arbitrators and parties, but it has to be clear that
the exchange of opinions between arbitrators and one of the parties in private is
forbidden 42 . In addition, arbitrators need to be reluctant of engaging private meetings 43
with one party, because of the possible creation of bias appearance, which eventually, could
open a window to a possible challenge of the arbitrator, and/or the award.
Commentators 44 have also noted arbitrators who make themselves unavailable just before
the start of a hearing, with the only aim of delaying the arbitral procedure. The excuses
presented are innumerable, from false illness, to personal compromises. In the same
context, there have been incidents where arbitrators resign at the last minute, which
39 Rogers, supra note 29, at page 646
40 For Case law of vacated awards for scheduling problems see: Born, supra note 20 at pag. 844 .
41 IBA rules on Ethics for International Arbitrators, rule 5.3 forbids this behavior.
42 For example, IBA Rules on Ethics for International Arbitrators. Rule 5 allows communication prior to its
appointment, in order to check availability and capacity to hear the case. To read on some of the topics that
might be addressed during the meetings. See also: Bishop and Reed, supra note 10 at pag. 27-­‐31
43The ICC will refuse to appoint an arbitrator who spends approximately 50-­‐60 hours with the appointing
party reviewing the case. This according to: Bishop and Reed, supra note 10 at pag.
44 See Kirby, at supra note 3435.
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