Arbitral institutions and appointing authorities are immune from civil liability for acts or omissions within the scope of their duties as administrators of arbitral proceedings or in appointing arbitrators. - § 3.10(b), Arbitral Immunity, Restatement of the Law: U.S. Law of International Commercial and Investor-State Arbitration, The American Law Institute Proposed Final Draft (April 24, 2019)
Professor George Bermann serves as Reporter to the forthcoming Restatement of the Law: U.S. Law of International Commercial and Investor-State Arbitration (the “Restatement”) from the American Law Institute (ALI). In a provision of the final draft of the Restatement which is not regularly discussed, that instrument sets out the position that arbitral institutions are entitled to immunity from civil liability for conduct within the scope of their duties as administrators of arbitrations or as appointing authorities for arbitrations. That formulation leaves unaddressed by U.S. civil judicial proceedings a number of ethics issues for arbitral organizations.
This Essay, in honor of Prof. Bermann, discusses recent developments regarding the neutrality of arbitral institutions and other ethics responsibilities and the role of immunity in limiting development of those duties.