Liability and Independence of the Arbitrator - Czech and Central European Yearbook of Arbitration - 2012: Party Autonomy versus Autonomy of Arbitrators
JUDr. Martin Maisner, PhD. is a partner at ROWAN LEGAL. He is a renowned expert in the area of ICT Law, Outsourcing, ICT dispute resolution and CyberSecurity. He has written many publications and articles, has given lectures and presentations at international conferences; regularly lectures at several universities including Prague University of Economics, Masaryk University in Brno and Pan European University in Bratislava. He is also an active arbitrator in both domestic and international arbitration disputes including specialised ICT and intellectual property cases and has represented clients in arbitrations in Prague, Geneva, Zurich, Hague and London.
This article describes the potential sources of the arbitrator's liability as seen from different perspectives -- civil and criminal liability, liability derived from jurisdictional theory, contractual theory, hybrid theory and autonomous theory. The undisputed duties of an arbitrator based on both indemnity endorsing and liability oriented jurisdictions are described, as well as the possible types of arbitrator's liability viewed from the technical point of view and from the different views of common law and continental law countries, where the common law countries incline toward absolute quasi-judicial indemnity while the continental law countries apply different levels of liability. The presented court decisions from different jurisdictions specify the different views of potential liability or indemnity of an arbitrator compared to the general approach of the jurisdiction. The conclusion however confirms that the issue is highly controversial especially in international arbitration where there is no general lead or approach applied worldwide which raises the question of whether an international understanding on a basic principle or at least a wider discussion should be initiated, but preferably ending in some form of an international convention agreeing on some basic generally accepted rules.