Originally from American Review of International Arbitration - ARIA

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A COMPARATIVE REFLECTION ON CHALLENGE OF ARBITRAL
AWARDS THROUGH THE LENS OF THE ARBITRATOR’S DUTY
OF IMPARTIALITY AND INDEPENDENCE
Pedro Sousa Uva∗

"[The review on the merits is, whatever euphemistic phraseology is used,
in reality an appeal from the decision of the arbitrator or arbitration
tribunal. This raises a general question of principle: has a person
involved in a legal dispute a fundamental right to a second shot if the first
shot has misfired?"
 

I. INTRODUCTION: THE REQUEST FOR ANNULMENT OF AN AWARD
VIS-À-VIS THE FINALITY OF INTERNATIONAL ARBITRATION

When a party looses a battle in litigation, the war is usually far from being lost.
An unhappy party may, as a rule, appeal an unfavorable judicial decision in
more than one instance. In many countries, such a party may continue appealing
on certain grounds and even request review by higher (specialized) judicial courts,
notably the Constitutional Court or even the European Court of Justice. Before a
judicial decision has res judicata effect, a party may well litigate for several years,
alleging or counter-alleging until potentially reaching voluntary compliance or the
enforcement stage.

When a party loses a battle in arbitration, the scenario is not quite the same.
In international arbitration, there is, as a rule, no appeal on the merits. The
ratio legis is simple to understand: arbitration is of a contractual nature as it relies
on the consent of the parties. It is supposed to be a previously agreed forum for
dispute resolution in a swift way, guided by the laws and rules expressly chosen
by the parties, which are usually referred to in the arbitration agreement. Judicial
review of the merits of an international award would clash with the voluntary,
neutral forum established to decide in accordance with the parties’ chosen rules
and law(s).