Behavior Expected of Arbitrators - Chapter 1 - The Dark Side of Arbitration
Originally from The Dark Side of Arbitration
I. Arbitrators’ Duties to Their Internal Relationships
A. Do Arbitrators Also Have Duties to Their Fellow Arbitrators?
Arbitrators have several obligations, the content and the beneficiaries of which are well identified in the applicable statutory and case law, as well as in many soft law instruments and in international arbitration practice. These obligations have been extensively analyzed in the legal literature and there is no need, for the purposes of this book, to further expand on them, except to the limited extent necessary to my analysis, which I confine to the internal relationships among arbitrators.
These obligations include, but are not limited to: (i) the duty of independence and impartiality throughout the entire arbitration proceedings; (ii) the duty of confidentiality; and, last but not least, (iii) the duty of diligent behavior in the conduct of the arbitration proceedings.
In particular, the duty of independence and impartiality throughout the arbitration proceedings encompasses also the duty to avoid improper ex parte communications. This duty of independence and impartiality implies the arbitrator’s obligation to decline appointment or nomination if he or she has any conflict of interest. This happens when the arbitrator concerned has doubts as to his or her ability to be independent or impartial or if facts or circumstances exist which, viewed by a reasonable third person, would give rise to justifiable doubts as to the arbitrator’s impartiality or independence.
If an arbitrator, despite these facts or circumstances, considers him or herself to be impartial and independent of the parties, the arbitrator nevertheless has the obligation to disclose these facts to allow the parties to judge whether they agree with the arbitrator’s assessment or wish to challenge it.