Abstract
This chapter aims to define the contours of the duty of personal diligence and integrity. This duty is highly complex, and this chapter deals with three different facets of this duty individually: non-delegation of responsibilities; time-related availability, and appropriate behaviour. Each section of this chapter examines the way in which these concepts have been shaped, in both commercial arbitration and in other contexts, such as the judicial, when necessary. The final aim is to put forward practical ideas on the specific content that should be attributed to these notions in the investment arbitration environment. It is also argued that these issues will need to be defined more clearly in the future, in contexts such as ICSID, the ICS, and a possible MIC.
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Notes
- 1.
According to academics, “It is axiomatic to say of an arbitrator’s mission that it is intuitu personae. A party’s choice of arbitrator is, of essence, personal, and so is the chosen arbitrator’s mandate. In accepting appointment, an arbitrator necessarily accepts a duty not to delegate that mandate”. Partasides (2002), p. 147. This is also clearly stated, for example, in the FAI Note: “The mandate of an arbitrator is personal. By accepting appointment, an arbitrator undertakes not to delegate the mandate to any other person, including any tribunal-appointed secretary. An arbitrator may under no circumstances rely on a secretary to perform any essential duties of an arbitrator.” Note FAI (2016).
- 2.
Infra, Sect. 6.2.
- 3.
An administrative secretary is paid less than an arbitrator, and the former’s work allows the latter to concentrate on the essence of the case and issue the award more quickly.
- 4.
The 2012 International Arbitration Survey by White & Case and Queen Mary University indicates that tribunal secretaries are appointed in 35% of commercial cases (46% in civil law arbitrations and 24% in common law arbitrations). White & Case (2012), p. 44.
- 5.
What is unquestionable in all the texts consulted is that administrative secretaries are bound by the same duty of independence and impartiality as arbitrators. See, for instance: ICC Note: “Administrative Secretaries must satisfy the same independence and impartiality requirements as those which apply to arbitrators under the Rules” ICC (2017b), par 146; IBA Guidelines: “(5) Scope: (b) Arbitral or administrative secretaries and assistants, to an individual arbitrator or the Arbitral Tribunal, are bound by the same duty of independence and impartiality as arbitrators, and it is the responsibility of the Arbitral Tribunal to ensure that such duty is respected at all stages of the arbitration” IBA (2014); Research based report on the use of tribunal secretaries in international commercial arbitration: “5 b) Some arbitration institutions require arbitral or administrative secretaries and assistants to sign a declaration of independence and impartiality. Whether or not such a requirement exists, arbitral or administrative secretaries and assistants to the Arbitral Tribunal are bound by the same duty of independence and impartiality (including the duty of disclosure) as arbitrators, and it is the responsibility of the Arbitral Tribunal to ensure that such duty is respected at all stages of the arbitration. Furthermore, this duty applies to arbitral or administrative secretaries and assistants to either the Arbitral Tribunal or individual members of the Arbitral Tribunal”, Berwin, Leighton, Paisner (2015); and Article 2.10 of the 2014 HKIAC Guidelines on the Use of a Secretary to the Arbitral Tribunal: “A tribunal secretary shall be subject to the same standards of impartiality and independence as the arbitral tribunal”. HKIAC (2014). This idea is also conveniently reflected in the most recent EU texts on investment disputes.
- 6.
The essential ideas in this ICC Note (2017b) are reproduced by other arbitration institutions, such as Article 22 of the CIMA Arbitration Rules: “Administrative Secretary of the Arbitral Tribunal: “At any time during the arbitration proceedings and after seeking the express views of the parties, the Arbitral Tribunal may propose the appointment of an administrative Secretary. If any of the parties object to the proposal, the Arbitral Tribunal shall not proceed with the appointment. The administrative Secretary of the Arbitral Tribunal shall act, at all times, under the strict supervision of the Arbitral Tribunal and according to the directions and instructions given them. The Arbitral Tribunal shall, at all times, be responsible for the conduct of its administrative Secretary in relation with the arbitration. Under no circumstances shall the Arbitral Tribunal delegate its decision-making functions or the performance of any of its essential duties to its administrative Secretary, who will not participate in the deliberations of the Arbitral Tribunal. The appointment of an administrative Secretary of the Arbitral Tribunal shall not involve any additional cost to the parties. The Arbitral Tribunal shall not request of the Court any compensation for the activities of its administrative Secretary”. CIMA (2015).
- 7.
ICC (2017a), par 151.
- 8.
Ibid, par 150. Very similar wording appears in the FAI Note on the Use of a Secretary: “In addition, a secretary may provide limited assistance to the arbitral tribunal in its decision-making process, as long as the arbitral tribunal ensures that the secretary does not assume any decision-making function of the tribunal, or otherwise influence the tribunal’s decisions in any manner. Such assistance may include, but is not limited to, the following tasks: (i) proofreading and checking the accuracy of cross-references, citations, dates and other figures in draft procedural orders and awards as well as correcting any clerical, typographical or computational errors found in the drafts”. The FAI text continues specifying: “Such assistance may include, but is not limited to, the following tasks: “collecting case law or published commentaries on legal issues defined by the arbitral tribunal, preparing summaries from case law and publications as well as producing memoranda summarising the parties’ respective submissions and the evidence supporting those submissions, provided that the arbitral tribunal refrains from relying solely on a secretary’s work to the exclusion of its own review of the file and legal authorities”. FAI (2016), point 3.4.
- 9.
ICC (2017b), par 153.
- 10.
Ibid, (2017), par 149: “Administrative Secretaries act upon the arbitral tribunal’s instructions and under its strict supervision. The arbitral tribunal shall, at all times, be responsible for the Administrative Secretary’s conduct in relation to the arbitration”.
- 11.
Ibid, “When in doubt about which tasks may be performed by an Administrative Secretary, the arbitral tribunal or the Administrative Secretary should contact the Secretariat”. ICC (2017b), par 154.
- 12.
LCIA (last accessed June 2018).
- 13.
Likewise, Article 3.4.(c) of the HKIAC Guidelines also refer to “preparing summaries from case law and publications as well as producing memoranda summarising the parties’ respective submissions and evidence”. HKIAC (2014).
- 14.
Article 3. Duties. It is also relevant that the purely administrative tasks are an open list (“including, but not limited to, the following”) while the more substantive functions are a closed list”. HKIAC (2014).
- 15.
Young International Council for Commercial Arbitration (2014).
- 16.
Idem, Article 1(4), p. 5.
- 17.
Idem, Article 3, p. 11.
- 18.
Ibid, Article 3, p. 15. More recent studies indicate and reinforce this resistance to delegating certain non-administrative tasks to the administrative secretary: “Only a minority thought that it would be appropriate for the secretary to carry out functions that involved an assessment or analysis of evidence (14% in the case of a written legal analysis of the parties’ arguments, 24% in relation to a review of evidence and 33% in connection with preparation of a summary of fact or expert evidence for inclusion in the award). Writing substantive parts of the award relating to the merits or a determination on the issues was a definite no-go area with only 10% of those responding expressing the view that this was an appropriate task for the tribunal secretary.” Berwin, Leighton Paisner (2015), p. 11.
- 19.
The Young ICCA was established in 2010 and is a world-wide arbitration knowledge and skills network for young practitioners . Participation is open to law students, faculty members and young practitioners under the age of 40. Young ICCA (last accessed June 2018).
- 20.
Offering an interesting reflection on this issue: “often arbitrator candidates get too easily tempted by a seemingly interesting and lucrative arbitrator mandate without fully inquiring about the magnitude of the function (…) it would be wise (…) to remind [arbitrators] of Karl-Heinz Böckstiegel’s admonishment that there is always the choice to “just say no” to another demanding engagement that might risk one’s well-deserved reputation”. Wilske (2014), p. 301.
- 21.
In addition to what has been discussed so far, this duty may be opposed by various exceptions. It is thus plausible that the delegation of the arbitrator’s duty to personally perform decision-making functions may be imposed by the applicable law. For instance, Rule 7 of the CIArb Code states: “Conduct of the Process. A member shall not delegate any duty to decide to any other person unless permitted to do so by the parties or applicable law.” CIArb (2009). It is also possible that, as the UNCITRAL Notes indicate, the delegation is a logical consequence of the very nature of a certain type of arbitration, in which non-legal adjudicators need legal advice from the legally trained administrative secretary. Point 36: “it is recognized that secretaries are not involved and do not participate in the decision-making of the arbitral tribunal, except in certain rare, specialized types of arbitration (for example, where the specific arbitration rules provide that secretaries are expected to provide legal advice in relation to the decision of the arbitral tribunal if and when the arbitral tribunal is composed only of non-lawyer, subject matter specialists)”. UNCITRAL (2016). This admissible typology has to be clearly differentiated from other inadmissible cases. For example, the Italian Supreme Court clearly criticized the employment, without the parties’ consent, of a lawyer who was tasked with drafting the final award, which the non-legal arbitrators were not able to either draw up or critically examine. Galagan and Živković (2015).
- 22.
The standard arbitration agreement does not usually deal with the issue of the arbitral secretary. Altenkirch and Schmeil (2015) (referring to investment arbitration).
- 23.
Referring to an example of investment arbitration, this issue is not always developed in hard law: “In order to establish the job description of the arbitral secretary, one should consult the applicable procedural rules, which may differ from case to case. As set out above, the applicable procedural rules in this case are the Dutch Code of Civil Procedure and the UNCITRAL Rules. Because it concerns regulations that are applied in an international case, an interpretation must also take international practice into account (…) the Tribunal was appointed according to the UNCITRAL Rules. Like the Dutch Code of Civil Procedure, these arbitration rules do not contain any explicit provisions regarding the role of the arbitral secretary that are relevant here. This means that the job description of the arbitral secretary is mostly to be found in international practice”. Writ of summons, par 485–486.
- 24.
Addressing the crucial issue of the hierarchy between these types of sources, see for example point 1.5 of the HKIAC Guidelines: “In the event of any discrepancy or inconsistency between these Guidelines and any contrary provisions of the parties’ arbitration agreement or mandatory provisions of the applicable law, those provisions shall prevail.” HKIAC (2014).
- 25.
The contrary could lead to the argument that if the secretary’s tasks go beyond what the parties have consented to, the arbitrators would be breaking their confidentiality obligation regarding the parties. This idea has been pointed out, for example, in the case Fábrica v. Venezuela: “these evidence (sic) would also demonstrate that [the arbitrator] “breached the confidentiality of this arbitration by granting unauthorized and undisclosed access to the record of the case to [the assistant] an employee of a law firm that is counsel of record to neither party in this arbitrator””. Fábrica v. Venezuela (2017), par 48.
- 26.
Infra, Chap. 5.
- 27.
UNCITRAL Notes (2016), point 38.
- 28.
Andersson (2015), p. 42.
- 29.
One recent initiative is the implementation of accreditation programmes for court secretaries. In 2015 the HKIAC launched an initiative of this type allowing participants that passed the exams to be eligible for appointment for any ad hoc or institutional arbitration. The programme involves a series of lectures, group discussions on case studies, and debates to educate the participants in all the skills required from competent court secretaries. The training also deals in detail with the harmful effects of a court’s improper delegation of duties to court secretaries and prepares them to deal with this type of situation. Benson (2016). This initiative seems to become widespread, and the ICC Institute of World Business Law is offering a Training for Court Secretaries, which covers the following topics: What is expected from a tribunal secretary?, the appointment of tribunal secretaries, overview of the tribunal secretary’s tasks and role in the organization of the proceedings , the support provided by tribunal secretaries from receipt of the case file until the signature of the terms of reference, the support provided by tribunal secretaries from the signature of the terms of reference until the evidentiary hearing, procedural aspects, technological aspects, and the award. ICC Institute of World Business Law (2018).
- 30.
Schwartz reports that: “in at least one case, the [ICC] Court required a tribunal to replace a secretary when the person originally appointed was a well-known arbitrator and arbitration authority in his own right.” Schwartz (1995), p. 86.
- 31.
Some authors have proposed that a secretary should only be allowed to prepare draft procedural orders and non-substantive portions of awards if the tribunal gives the secretary detailed guidance before drafting, and the draft is scrutinized by the entire tribunal before it is finalised; thus, the responsibility for the contents remains with the members of the tribunal. With regard to the first requisite, Polkinghorne and Rosenberg state that it “ordinarily can be accomplished by having the secretary attend deliberations and be privy to the views of the tribunal”. Polkinghorne and Rosenberg (2014).
- 32.
ICSID (2006).
- 33.
Unlike in ICSID, ICC staff members are not permitted to serve as Administrative Secretaries. ICC (2017b), point 146. On the other hand, other commercial arbitration institutions, such as HKIAC, do allow it: “A member of the HKIAC Secretariat may be appointed as a tribunal secretary subject to confirmation regarding his or her availability, impartiality and independence in accordance with paragraph 2.2. Such Secretariat member shall not act as a case manager in the same arbitration (…). The appointment of a tribunal secretary from the HKIAC Secretariat requires confirmation by HKIAC”. HKIAC (2014).
- 34.
The secretary’s tasks are specified in ICSID Regulation 25: “He shall (a) represent the Secretary-General and may perform all functions assigned to the latter by these Regulations or the Rules with regard to individual proceedings or assigned to the latter by the Convention, and delegated by him to the Secretary; (b) be the channel through which the parties may request particular services from the Centre; (c) keep summary minutes of hearings, unless the parties agree with the Commission, Tribunal or Committee on another manner of keeping the record of the hearings; and (d) perform other functions with respect to the proceeding at the request of the President of the Commission, Tribunal or Committee, or at the direction of the Secretary-General .” ICSID (2006).
- 35.
It is stated that: “The Parties signified their agreement (subject to final confirmation by the Respondent, later received) to the President’s proposal to appoint a Legal Assistant from his Chambers to assist him in the proceedings ”, Rompetrol v. Romania, par 21.
- 36.
It is indicated that: “On 23 December 2013, the Tribunal informed the Parties that, given the short time between the appointment of [the arbitrator] and the date for the envisaged continuation of the hearing, [the arbitrator] envisaged the possibility to retain an assistant for the purpose of the preparation of the hearing. The Claimant and the Respondent consented to the appointment of such assistant on 24 December and 27 December 2013 respectively. It subsequently turned out that such support was eventually not needed”, Crystallex v. Venezuela, par 118.
- 37.
It is stated that: “In particular, the Parties agreed on the application of the Rules of Arbitration in force since April 10, 2006 and on the appointment as assistant of the Arbitral Tribunal of (…), a lawyer in the firm H & VDB [being VDB the Tribunal President]” (English translation by the author) (“Les Parties se sont notamment accordées sur l’application du Règlement d’arbitrage en vigueur depuis le 10 avril 2006 et sur la nomination comme assistante du Tribunal arbitral de (…), avocate au sein du cabinet H&VDB [being VDB the Tribunal President]).” Menzies v. Senegal, par 22. In Tenaris v. Venezuela, it is indicated that: “On November 5, 2014 the President proposed to the Parties the appointment of (…), associate of A & A, as Assistant to the Court, and requested their approval” (English translation by the author) (“El 5 de noviembre de 2014 el Presidente propuso a las Partes el nombramiento de (…) asociada de A&A, como Asistente del Tribunal, y solicitó su aprobación”), par 22. In Rompetrol v. Romania: “(…) to the President’s proposal to appoint a Legal Assistant from his Chambers to assist him in the proceedings (…), a barrister, was subsequently duly appointed legal assistant to the Tribunal, and this was confirmed by ICSID by letter dated 21 September 2007”, Tenaris v. Venezuela, par 21.
- 38.
Apart from the trust between arbitrator and secretary, they often have close relationship based on their previous professional relationship. This might explain the following British judge’s decision: in P v. Q [2017] EWHC 194, an English High Court judge denied an application to remove two co-arbitrators from their positions in an on-going LCIA arbitration. The application was founded on the content of an email from the chairman to the tribunal secretary which was mistakenly sent to a paralegal working for one party’s solicitors. The email contained a letter from the party to the tribunal and asked for ‘Your [the secretary] reaction to the latest from [P]?’, leading the party to question whether the arbitrator’s duty not to delegate was being met and tasks carried out by the tribunal secretary. The High Court judge considered that “soliciting or receiving views from a tribunal secretary would not of itself demonstrate a failure to discharge the arbitrator’s personal duty to perform the decision-making function and responsibility themselves”.
- 39.
Although no reason for the change is specified, see Vladislav. Kim v. Uzbekistan: “On 13 April 2015, the Parties agreed to the appointment of Ms. NM as the Assistant to the Tribunal. On 8 July 2016, the Parties agreed to the appointment of Dr. CCM to replace Ms. NM as the Assistant to the Tribunal” Vladislav. Kim v. Uzbekistan, par 31.
- 40.
This was alleged by Venezuela in ConocoPhillips v. Venezuela. The fact that the arbitral tribunal allegedly had a professional connection with a certain law firm encouraged Venezuela to file a fifth challenge against the arbitrator. In this case, their co-arbitrators considered that: “the Two Members cannot see that the facts relating to that appointment provide any support at all for the proposition that a limited tie with [the law firm] would lead a reasonable third person with knowledge of those facts to the conclusion that [the arbitrator] is manifestly lacking in the ability to act impartially between the parties in the present arbitration”. ConocoPhillips v. Venezuela (2016), par 35.
- 41.
In spite of the fact that the case refers to a law clerk who is not officially collaborating with the arbitral panel as an assistant, the case Tanesco v. Tanzania (unpublished) has generated an interesting situation: the investor challenged its own party appointed arbitrator because he had authorized that his law clerk published two articles in a Kluwer arbitration blog. Although the referred articles were supposed to be hypothetical, they described a case very similar to Tanesco, calling the defendant state “Nopayland”. The challenged arbitrator resigned. Daele (2012), pp. 399–400.
- 42.
Caratube v. Kazakhstan, par 14. A NAFTA-UNCITRAL arbitration included a more general reference (“to aid the Tribunal in its work”) which could cover many types of tasks. Glamis v. USA, par 189.
- 43.
In the non-ICSID case, Glamis v. USA referred to above, it was stated: “Procedural Order No. 9 postponed the deadlines for the submission of Claimant’s Reply until December 15, 2006, and Respondent’s Rejoinder until February 27, 2007. In addition, the final arbitral hearing was moved to May 2007, with the understanding that the Assistant to the Tribunal would work with the Parties to ascertain an exact date for the hearing” Glamis v. USA, par 262.
- 44.
Caratube v. Kazakhstan, par 14.
- 45.
Orascom v. Algeria, par 24; CEAC v. Montenegro, par 9.
- 46.
Crystallex v. Venezuela, par 97.
- 47.
Polkinghorne and Rosenberg (2014), p. 114.
- 48.
Compañía de Aguas v. Argentina, par 4. Along the same lines: “For the Secretariat also to draft part or all of the decisions and reasoning would appear wholly inappropriate, even if following basic instructions of Arbitrators or ad hoc Committee Members whilst the final version would naturally still be left to them for approval. This would not appear to be sufficient to legitimize the text.” Compañía de Aguas v. Argentina, par 7.
- 49.
Ibid, par 6.
- 50.
Ibid, par 21.
- 51.
- 52.
Yukos v. Russia, Hulley v. Russia and Veteran v. Russia.
- 53.
Analysing the main legal issues addressed by these awards, Brauch (2014).
- 54.
The content of Article 1065(4) DCCP might have been relevant in the resolution of the Dutch claim, as Russia might have needed to establish that it had not knowingly accepted the role actually played by the secretary: “The ground mentioned in paragraph (1)(c) above shall not constitute a ground for reversal if the party who invokes this ground has participated in the arbitral proceedings without invoking such ground, although it was known to him that the tribunal did not comply with its mandate”. DCCP (1986).
- 55.
Writ of Summons, par 102.
- 56.
Terms of Appointment agreed by the parties, dated October 31, 2005, Article 7(c): “The Tribunal may appoint a member of the Registry [the PCA] to act as Administrative Secretary. The Administrative Secretary and other members of the International Bureau [of the PCA] shall carry out administrative tasks on behalf of the Tribunal”.
- 57.
The same assistant had been selected by the same chairman in a previous arbitration (Duke v. Peru).
- 58.
As has humorously been pointed out: “Husband’s Hiring Secretaries without Wives’ Input: Arbitrators Preempting Party Autonomy”. Restemayer (2012), p. 337.
- 59.
Writ of Summons, par 488.
- 60.
Ibid, par 487.
- 61.
Naturally, the amount gave rise to some surprised comments: “But hey let’s get real: the million-dollar bill plus for Valasek cannot but raise serious questions. Yukos is only one case (admittedly a complex one) and Valesek’s invoice is about 10 times the annual salary of a judicial clerk for a US Supreme Court Justice. Those of us in the US law school world appreciate just what kind of top legal talent the clerks represent.” Howse (2017).
- 62.
Writ of Summons, pars 494–496.
- 63.
Ibid, par 497.
- 64.
Expert Opinion of Professor GAB, par 9 D.
- 65.
The legal expert made an interesting observation regarding terminology “As the term “secretary” suggests, such an individual is meant to perform tasks of an essentially administrative character, and it is so understood. By contrast, the term “assistant,” which has surfaced in this case is of no certain meaning. It is difficult to tell precisely from this term alone which functions that person can be expected to perform”. Ibid, par 83. As the Yukos cases have indicated, arbitral secretaries—but not assistants—are mentioned in the DCCP .
- 66.
The legal expert stated: “Other tribunals, however, task secretaries with producing first drafts of certain portions of awards, but only those typically early portions of an award that identify, among other things the parties and counsel (and other factual items such as applicable law or language of the arbitration), or recite the basic procedural history of the case, or even possibly (though even this is controversial) a summary of the parties’ positions. The reason why secretarial drafting of these portions is commonly allowed is that it is viewed as a largely ministerial task. As chair, I myself studiously avoid assigning arbitral secretaries any greater drafting role than that (and I do not in fact allow them to summarize, even in draft form, the positions of the parties).” Ibid, par 91.
- 67.
Ibid, pars 86, 94. The expert also provides important doctrinal references arguing that certain lines cannot be crossed: “Even a careful review by an arbitrator of a secretary’s first draft does not entirely remove the scope given to the secretary to make judgements as to what to emphasize and what to omit, judgements that the arbitrator reviewing the draft may not even be able to identify never mind control. The act of writing is the ultimate safeguard of intellectual control. An arbitrator should be reluctant to relinquish it. Partasides (2002), p. 163. Likewise: “As a general rule, the drafting of the substantive parts of the final award, which include its operative part, must be reserved for the arbitral tribunal. It is particularly in this substantive section where writing one’s own text instead of reading the text prepared by someone else remains the ultimate means of intellectual control of the tribunal’s decision of the dispute as the essential tool for safeguarding the proper performance of the arbitrators’ personal decision-making duty owed to the parties that have appointed them, thereby preserving the integrity of the arbitral process as such”. Berger (2015). In favour of a (restrictive) “non-adjudicative delegation”, see also Hong-Lin and Masood (2016).
- 68.
Expert Opinion of Professor GAB, par 96.
- 69.
Ibid, par 118. Reflecting on linguistic issues in international arbitration, Wilske (2016).
- 70.
ConocoPhillips v. Venezuela, par 27.
- 71.
Ibid, par 17.
- 72.
Ibid, pars 39 and 40.
- 73.
This issue has also been addressed in other legal contexts such as the WTO. Its Rules of Conduct state that: “III. Observance of the Governing Principle: “Pursuant to the Governing Principle, each covered person, shall be independent and impartial, and shall maintain confidentiality. Moreover, such persons shall consider only issues raised in, and necessary to fulfil their responsibilities within, the dispute settlement proceeding and shall not delegate this responsibility to any other person. Such person shall not incur any obligation or accept any benefit that would in any way interfere with, or which could give rise to, justifiable doubts as to the proper performance of that person’s dispute settlement duties.” WTO (1996).
- 74.
Article 4. Code of Conduct. EU-Singapore IPA (2018).
- 75.
Article 4. Code of Conduct. EUSFTA (2015).
- 76.
Article 4. Code of conduct. EU-Vietnam FTA (2016).
- 77.
Article 4. Code of Conduct. TTIP (2016).
- 78.
Article 4. Code of Conduct. JEFTA (2016).
- 79.
NAFTA (1994) Code of Conduct.
- 80.
The first question that arises is in how broad sense the duty to decide has to be understood.
- 81.
- 82.
The author was appointed Advocate General at the Court of Justice in October 2015. Bobek (2014), pp. 14–15.
- 83.
- 84.
EC (2017), 303 final.
- 85.
For instance, the IBA Rules of Ethics for International Arbitrators 1987 refer to the duty of diligence thus: “All arbitrators should devote such time and attention as the parties may reasonably require having regard to all the circumstances of the case, and shall do their best to conduct the arbitration in such a manner that costs do not rise to an unreasonable proportion of the interests at stake” IBA (1987). The ICC Note declares: “Arbitrators have a duty to devote to the arbitration the time necessary to conduct the proceedings as diligently, efficiently and expeditiously as possible” Note (2017); the Standard 7 of the Barcelona Arbitration Court Code of Ethics states that: “Duty of diligence: All arbitrators must devote as much time and attention as the parties may reasonably require taking into account all of the circumstances of the case, and must do everything possible to conduct the arbitration in such a way that costs do not rise in a unreasonable proportion in relation to the interests at stake”. (On 16th March 2009, this institution decided to adhere to the guidelines of the International Bar Association’s Code of Ethics for International Arbitration, eliminating or reformulating parameters of TAB requirements to set possibly even higher setting standards). TAB (2009).
- 86.
Rule 2.3 of the IBA Rules states: “A prospective arbitrator should accept an appointment only if he is able to give to the arbitration the time and attention which the parties are reasonably entitled to expect”. IBA (1987). In relation to the validity of this 1987 text, the 2014 IBA Guidelines state that: “In 1987, the IBA published Rules of Ethics for International Arbitrators . Those Rules cover more topics than these Guidelines, and they remain in effect as to subjects that are not discussed in the Guidelines. The Guidelines supersede the Rules of Ethics as to the matters treated here”. IBA (2014).
- 87.
Article 4. CAM (2010).
- 88.
Infra, Chap. 5.
- 89.
Article 4.1. SIAC-Communications : “Before accepting an appointment, an arbitrator may only enquire as to the general nature of the dispute, the name of the parties and the expected time period required for the arbitration”. SIAC (2015) Article 4 of the Code of Ethics for an Arbitrator of CIICA also indicates: “Before accepting an appointment, an arbitrator can only inquire about the general nature of the dispute, the names of the parties and the expected time period required for the arbitration”. CIICA (2016). Article 4.2 of the KLRCA’s revised Code of Conduct for Arbitrator: “Before accepting an appointment, an Arbitrator may only enquire as to the general nature of the dispute, the names of the parties, the amount in dispute and the expected time period required for the proceeding”. KLRCA (2013).
- 90.
Ibid, Article 2.2.
- 91.
In other cases, the arbitration institution’s control is affirmed but no further details are given. It is affirmed: “(5) The SCC takes into account the efficiency of the dispute and the issue of availability when selecting arbitrators.” SCC (2017).
- 92.
Article 1.2 SIAC: “Appointment: Should the prospective arbitrator be aware of any potential time constraints un the next 12 months in his ability to discharge his duties if he is appointed as an arbitrator, he shall, without breaching any existing confidentiality considerations and/or obligations, disclose details of such time constraints to the Registrar of SIAC in the attached Disclosure Sheet. SIAC reserves the right to refuse to appoint the prospective arbitrator should it take the view that the prospective arbitrator will not be able to discharge his duties to such potential time constraints.” SIAC (2015).
- 93.
Note (2017), par.25.
- 94.
PCA (2012).
- 95.
Article 1.2. Appointment. SIAC (2015).
- 96.
The Arbitration Rules state: “The concealment of all or any objective circumstances affecting their availability, impartiality or independence by a candidate from the parties, the Court or the other Arbitrators shall entitle the Court to deny, where applicable, confirmation of the proposed candidate. Should the concealed circumstance giving rise to a conflict of interest come to be known to a party who challenges the Arbitrator concerned on this basis, the previous concealment will be an element to be weighed by the Court in its decision, depending on the circumstances of the case”. CIMA (2015).
- 97.
The strict approach supported by Rivkin deserves detailed reading: “Most importantly, arbitrators have to commit that they have sufficient time in their schedule to conduct the case efficiently and – here is a key point – that they will not in the future schedule themselves so fully that they do not have time for the work to be done on the case. This does not just mean time having the time to slot in a week’s hearing and perhaps a procedural conference some time soon after appointment. This means having enough time to read all submissions promptly when they are made, so that if procedural issues arise, they can be determined based on actual knowledge of the case at the time. It means having sufficient time for some pre-hearing deliberations by the arbitrators, so that the hearing itself can be focused on the issues that are truly relevant to their decision. It means having and scheduling enough time after the hearing to deliberate and to write the award. Frankly, too many arbitrators schedule themselves so fully that they move from hearing to hearing, week to week, and never leave themselves time to undertake their other responsibilities (reading the papers and particularly deliberating and writing the award). Arbitrators now commit to sit in their chair through a hearing, but they also must commit to sit in their chair in their office, or wherever they want to work, to write the award afterwards. Deliberations and award drafting cannot simply be fit into the free days and weekends that happen to occur between hearings in other matters (…) I must add that arbitrators who have dozens of cases simply cannot reasonably commit that they have time to devote sufficient attention to each matter, and they should turn down new appointments when that is the case. Arbitrators often justify taking on new matters even when they are too busy by saying that rejecting the appointment would deprive a party – or an institution – of its choice of arbitrators. I strongly disagree with such an assertion. Once appointed, each arbitrator owes a duty to both parties, and to any institution administering the case, and if he or she cannot fulfill that duty, he or she must politely decline the appointment. I have done so on more than a few occasions. Excessively busy arbitrators also justify nevertheless taking on new cases because some cases settle. That is of course true, but the possibility of settlement can be dealt with by applying appropriate cancellation fees; it should not justify taking on a new matter that will impact the arbitrator’s ability to fulfill his or her obligations to an already existing matter.” Rivkin (2015), pp. 5–6.
- 98.
Rule 7 of the CIArb Code of Professional and Ethical Conduct for Members states that: “A member shall not unduly delay the completion of the dispute resolution process”. CIArb (2009).
- 99.
Article 11. CAM (2010).
- 100.
R33- Independence and Qualifications of Arbitrators. CAS (2013).
- 101.
The comment on rule 2.5 of the ABA Model Code of Judicial Conduct is useful here, as it specifies that: “A judge should seek the necessary docket time, court staff, expertise, and resources to discharge all adjudicative and administrative responsibilities. Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court officials, litigants, and their lawyers cooperate with the judge to that end. In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs”. ABA (2011).
- 102.
Infra, Sect. 6.1.
- 103.
However, avoiding unnecessary delay and expense are not absolute objectives. There are a series of crucial procedural precautions, that cannot be ignored, such as assuring equality of treatment and safeguarding the parties’ rights to present claims and defences fairly. Article 21.2 of the International Dispute Resolution Procedures of the ICDR states: “Exchange of Information - The arbitral tribunal shall manage the exchange of information between the parties with a view to maintaining efficiency and economy. The tribunal and the parties should endeavour to avoid unnecessary delay and expense while at the same time avoiding surprise, assuring equality of treatment, and safeguarding each party’s opportunity to present its claims and defenses fairly”. ICDR (2014). See also Canon IV of the Code of Ethics for Arbitrators in Commercial Disputes: “An arbitrator should conduct the proceedings fairly and diligently (…).” ABA (2004).
- 104.
For example, Article 4.4 of the LCIA Arbitration Rules: “Under the Arbitration Agreement, the Arbitral Tribunal’s general duties at all times during the arbitration shall include: (…) (ii) a duty to adopt procedures suitable to the circumstances of the arbitration, avoiding unnecessary delay and expense, so as to provide a fair, efficient and expeditious means for the final resolution of the parties’ dispute”. LCIA (2014).
- 105.
For instance, Article 14. 2 of the DIA Rules: “If an arbitrator does not act timely and efficiently, or if the arbitrator’s other duties according to the Rules are not fulfilled, a party may request the Chairman’s Committee to decide whether the arbitrator shall be replaced. Even in the absence of such a request, the Chairman’s Committee may replace an arbitrator on the grounds mentioned in the 1st sentence of this paragraph”. DIA (2013).
- 106.
UNCITRAL (1985a).
- 107.
Article 14 does not cover situations in which an arbitrator’s appointment is questioned on the basis of doubts as to impartiality or independence as this issue is dealt with in Article 12 of the UNCITRAL Model Law on International Commercial Arbitration. UNCITRAL (1985a).
- 108.
The travaux préparatoires state that: “courts should take into consideration the following factors: what action was expected or required of the arbitrator in light of the arbitration agreement and the specific procedural situation; if the arbitrator has not done anything in this regard, whether the delay has been so inordinate as to be unacceptable in light of the circumstances, including technical difficulties and the complexity of the case; if the arbitrator has done something and acted in a certain way, whether his conduct clearly falls below the standard of what could reasonably be expected. The travaux préparatoires also mentioned that “[a]mongst the factors influencing the level of expectations are the ability to function efficiently and expeditiously and any special competence or other qualifications required of the arbitrator by agreement of the parties.” UNCITRAL (1985b).
- 109.
Ibid.
- 110.
Hutcheon (2012).
- 111.
CETA introduces a variation into the wording in its Article 8.11, stating that: “The Members of the Tribunal shall ensure that they are available”. CETA (2016).
- 112.
Article 17. WTO (1994).
- 113.
EC (2017).
- 114.
- 115.
NAFTA (1994).
- 116.
Article 4. Code of conduct: “a member shall perform his or her duties throughout the course of the proceeding and with fairness and diligence.” EU-Singapore IPA (2018).
- 117.
Article 4. Code of conduct: “Upon selection, an arbitrator shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding and with fairness and diligence.” EU-Singapore FTA (2015).
- 118.
Article 4. Code of conduct: “Upon confirmation of her or his selection, an arbitrator shall be available to perform and shall perform her of his duties thoroughly and expeditiously throughout the course of the proceeding, and with fairness and diligence.”. EU-Vietnam FTA (2016).
- 119.
Article 4. Code of Conduct: “Duties of members- Members shall perform their duties thoroughly and expeditiously throughout the course of the proceeding and shall do so with fairness and diligence”. http://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_153955.pdf. TTIP (2016).
- 120.
Article 4. Code of conduct: “Duties of members- A member shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding and shall do so with fairness and diligence”. JEFTA (2016).
- 121.
Rule 10.3: “The Court (appointing authority) shall also consider whether the arbitrator has sufficient availability to determine the case in a prompt and efficient manner that is appropriate given the nature of the arbitration”. SIAC (2017).
- 122.
Debevoise & Plimpton (2017).
- 123.
Baker McKenzie (2017).
- 124.
- 125.
Egger (2010), p. 112.
- 126.
For instance, the 2015 version of the Indian Arbitration and Conciliation (Amendment) Ordinance stated: “29A. (4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay. (5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court”. India (2015). A new version of this text has added some nuances to this issue: “In section 29A of the principal Act, (a) for sub-section (1), the following sub-section shall be substituted, namely: “(1) The award in matters other than international commercial arbitration shall be made within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23.”; (b) in sub-section (4), after the proviso, the following provisos shall be inserted, namely: “Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application: Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.” India (2018).
- 127.
Derains & Gharavi (2017), p. 8.
- 128.
Ibid, p. 10.
- 129.
White & Case (2018), p. 22.
- 130.
- 131.
ABA (2011).
- 132.
The present analysis does not cover the kind of situation analyzed in the commercial context by the following piece: Hanotiau (2003), pp. 261–287.
- 133.
Canon IV of the Code of Ethics for Arbitrators in Commercial Disputes : “An arbitrator should conduct the proceedings fairly and diligently”. ABA (2004).
- 134.
Art. 11 Code of ethics of arbitrators of the CAM- Deliberation of the award. CAM (2010).
- 135.
- 136.
Part I: Responsibilities to the Process. NAFTA (1994).
- 137.
Article 2. Code of Conduct. EU-Singapore IPA (2018).
- 138.
Article 2. Code of Conduct. EUSFTA (2015).
- 139.
Article 2, Code of Conduct. EU-Vietnam FTA (2016).
- 140.
Article 2. Code of Conduct. TTIP (2016).
- 141.
Article 2. Code of Conduct. JEFTA (2016).
- 142.
An example of this issue in the commercial field is the following: “whilst the co-arbitrator expressed views on certain issues and sometimes adopted an attitude which could be perceived as rude, ‘preliminary views’ and ‘strong terms’ on the arbitrator’s side, albeit ‘it would have been wiser to keep his thoughts for himself’, do not qualify as a basis for a challenge”. LCIA Reference N° 81224, Decision Rendered 15 March 2010. Challenge Digests.
- 143.
Paulsson (2010), p. 344.
- 144.
In another case, allegations that “the arbitrator was discourteous and showed animosity and contempt”, were radically ruled out by the co-arbitrators: “Regarding the first ground for recusal, the Tribunal does not share the Claimants’ position. In her First Clarification the arbitrator limited herself to answering the Claimants’ questions in one of ICSID’s official languages, in on-going proceedings in which the first session between the Parties and the Tribunal members to agree on the language of the proceeding, among other issues, had not yet been held. Neither does the Court find, as the Claimants assert, that the Arbitrator’s First Clarification contains discourteous language or expressions that lead one to believe the arbitrator under recusal feels animosity towards the Claimants. The arbitrator answered the questions amiably, and also always showed herself willing to clarify any other questions that the Claimants may have” (English translation by the author) (“En cuanto al primer motivo de recusación el Tribunal no comparte la postura de las Demandantes. La [árbitro] se limitó en su Primera Aclaración a contestar a las preguntas de las Demandantes en uno de los idiomas oficiales del CIADI, en un procedimiento incipiente, en el que no se había celebrado la primera sesión entre las Partes y los miembros del Tribunal para fijar, entre otras cuestiones, el idioma del procedimiento. Tampoco encuentra el Tribunal en la Primera Aclaración de la [árbitro], tal como afirman las Demandantes, un lenguaje descortés, o expresiones que lleven a pensar que exista animadversión de la árbitro bajo recusación contra las Demandantes. La [árbitro], respondió a las preguntas de forma afable, y además mostró siempre su disposición para aclarar cualesquiera otras dudas que les surgieran a las Demandantes”). Highbury v. Venezuela (2015b) pars 101–102.
- 145.
RSM v. Saint Lucia, par 42.
- 146.
Ibid par 86.
- 147.
Without identifying the case referred to, see Levine (2015), p. 269.
- 148.
The challenged arbitrator stated: “[l]astly there are some ethical assertions that cannot be left unanswered. [The law firm] admonishes this arbitrator to resign on ethical grounds as if [the law firm]’s views were proven correct. This is certainly not the case. Moreover, the real ethical question seems to lie with [the law firm]’s submissions and the handling of confidential information. To the best of this arbitrator’s knowledge the correspondence concerning disclosure and other matters in Pan American v. Bolivia is part of the confidential record of that case. [The law firm] is in the knowledge of such correspondence as counsel for Bolivia, but it does not seem appropriate or ethically justified that this information be now used to the advantage of a different client of [the law firm], a use that in any event should be consented to by the other party to that case.” Burlington v. Ecuador, par 79.
- 149.
Ibid, par 80.
- 150.
- 151.
Perenco v. Ecuador, par 27.
- 152.
Ibid, par 70. The assessment of the challenged arbitrator himself on this case can be read in: Brower, Melikian and Daly (2015), pp. 320–335.
- 153.
For instance, due to an obstructive arbitrator. Schneider (2011), p. 275.
- 154.
Klöckner v. Cameroon, pars 82 bis-113.
- 155.
Rule 2.3 of the ABA Model Code of Judicial Conduct : “[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. [2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased. [3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. [4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.” Rule 2.8: “the duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate”. ABA (2011).
- 156.
The 2007 version of the Code of Conduct of the CJEU affirmed in its Article 1.3: “General principles- “Members shall refrain from making any statement outside the Court which may harm the reputation of the Court or which may be interpreted as the adoption of a position by the Court on Issues falling outside its institutional role”. CJEU (2007).
- 157.
CJEU (2016).
- 158.
III. Integrity: “Judges’ conduct must be consistent with the high moral character that is a criterion for judicial office. They should be mindful at all times of their duty to uphold the standing and reputation of the Court”. VI. Freedom of expression: “Judges shall exercise their freedom of expression in a manner compatible with the dignity of their office. They shall refrain from public statements or remarks that may undermine the authority of the Court or give rise to reasonable doubt as to their impartiality”. ECHR (2008).
- 159.
CIArb (2009).
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Fach Gómez, K. (2019). The Duty of Personal Diligence and Integrity. In: Key Duties of International Investment Arbitrators. Springer, Cham. https://doi.org/10.1007/978-3-319-98128-4_4
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