Delinquent Arbitrators And Arbitration Counsel - ARIA Vol. 20 No. 1 2009
Hans Smit - Stanley H. Fuld Professor of Law, Columbia University. The author gratefully acknowledges the assistance of Ana Christa Boksay.
Originally from American Review of International Arbitration - ARIA
DELINQUENT ARBITRATORS AND ARBITRATION COUNSEL
Statutory and institutional rules are unanimous in providing that arbitrators in
international cases must be neutral and independent. Some provide specifically
that arbitrators must carry out their responsibilities in accordance with the
applicable rules. Those requirements also apply to party-appointed arbitrators.
However, experience indicates that arbitrators not infrequently depart from the
norms of proper arbitral conduct. Not surprisingly, when they do go astray, they
belong overwhelmingly to the party-appointed category.
Institutional rules generally do not seek to provide sanctions for such
misconduct. On the contrary, they generally purport to exclude liability for
whatever arbitrators do in their professional activities and make no distinction
regarding whether the arbitral conduct is of a kind that reasonably should not be
shielded from liability. More recently, probably in response to reported arbitral
misconduct, some rules do make such a distinction. Recent scholarship on
arbitrator malfeasance has evaluated arbitrator independence and impartiality.
The purpose of this exercise, based in part on the writer’s own experience in
international arbitration, is to explore the most frequent instances of arbitral
misconduct and the remedies for appropriate redress the law and applicable
institutional rules fail to provide, but should provide. It will also address the case
of misbehaving counsel and the remedies to redress their misbehavior.
Arbitrators may misbehave throughout the arbitral process. They may fail to
disclose disqualifying circumstances. The generalized disclosure statement they
are normally required to provide facilitates this type of obfuscation. They may
fail to attend properly notified sessions of the tribunal. They may engage in ex
parte communications with a party or third persons while the arbitration
proceeds. They may disclose to others in camera deliberations of the tribunal,
and they may resign for an invalid reason, preferably at a late stage of the
proceedings, in an effort to obstruct the proper progress of the arbitration. In the
following, I will consider each of these forms of arbitral misconduct, as well as
misconduct by counsel in arbitration, in some detail and propose appropriate
measures of redress.