The Neutrality of Arbitrators: A review of the development of the concept and its present day status in US and international arbitration practice? A look at IBA's newly issued guidelines and suggestions for improvements - SAR 2004 - 2

Author(s):

Estelle Dougier

Page Count:

34 pages

Media Description:

1 PDF Version from "Stockholm Arbitration Reporter"

Published:

December, 2004

Jurisdictions:

United States

Practice Areas:

Arbitrators and Arbitral Tribunals,

Independence and Impartiality,

ICC,

SCC,

UNCITRAL,

AAA,

LCIA,

FAA,

New York Convention

Author Detail:

Estelle Dougier, is an associate at Jones Day in Paris. Prior to obtaining her LL.M. from

Columbia University School of Law in 2003, she graduated from the Ecole Supérieure de

Commerce de Toulouse in 1994, from the University of Paris V (Master’s in business law

with very high honors) in 1997 and also obtained the Diploma of Financial and Accounting

Studies in 1998. She has been working in Paris in the field of international arbitration since

1999.

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Stockholm Arbitration Report (SAR)

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Introduction

The impartiality and independence of every arbitrator, regardless of the method of his or her appointment, are fundamental principles of the international arbitral process. Indeed, arbitrator bias is one of the few recognized bases for vacating a final award in most countries and under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).

Historically, the interest in the notion of arbitrators’ neutrality is quite new. This notion was introduced in the ICC Rules for the first time in 1975 for co-arbitrators, and was extended to all arbitrators in the 1980 Rules. Only recently did it become a subject of interest for academics. As explained by Michel Gaudet, the President of the ICC International Court of Arbitration, in an ICC Seminar in 1988,1 it has grown out of the rising general interest in arbitration, as it has become more widespread and “juridicized.”

Today, most legal systems have adopted the principle of neutrality of arbitrators. Nevertheless, this has not lead to unity. Moreover, there are no real procedures or means today to deal with existing difficulties but only general rules establishing the importance of the concept of neutrality.

Table of Contents:

INTRODUCTION

1 The Notation of Neutrality and the

Regulatory Framework

1.1. The Notion of Neutrality

1.2. The Regulatory Framework

2. Practical Difficulties with Regard to a General Requirement

of Neutrality

2.1. The Arbitrator as a Judge

2.2. The Notion of Bias

2.3. Party-Appointed and “Neutral” Arbitrators

2.4. Arbitrator’s Conduct During Arbitral Proceedings as

Evidence of Bias

3. Existing Solutions and Sanctions

3.1. Existing Guarantees

3.2. Existing Sanctions

4. Proposals

4.1. The Requirement of Disclosure

4.2. Arbitrator’s Conduct During the Proceedings

4.3. Reasoned Arbitral Awards

4.4. Publication of Arbitral Awards

4.5. Liability of Arbitrators

CONCLUSION

TABLE OF CASES