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The Tribunal’s Integrity: Impartiality and Procedural Responsibilities

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Arbitration and Contract Law

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 54))

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Abstract

Arbitrators, even if appointed by rival parties, must be impartial. This chapter explores the scope of that requirement. The tribunal is also charged with overall procedural responsibility to secure a fair, efficient, and speedy process. The parties must co-operate in helping to advance those aims.

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Notes

  1. 1.

    AT & T Corporation v. Saudi Cable [2000] 2 All ER (Comm) 625, CA (no finding of pecuniary interest or apparent bias).

  2. 2.

    Section 4(1) and Schedule 1, Arbitration Act 1996, referring to section 24.

  3. 3.

    [2000] 1 WLR 113. Similarly, in court proceedings, the Court of Appeal in Smith v. Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370; [2006] EWCA Civ 242, at [17] held that there is no lack of impartiality where a party’s barrister is a member of the same chambers as the Recorder, a part-time judge, in a civil case: but apparent bias arose because of the close business connection between the defendant and the judge; waiver had not occurred because the aggrieved party had not known all the facts.

  4. 4.

    Herbert Smith (London): citing Hrvatska Elektroprivreda, d.d. v. Republic of Slovenia (ICSID Case No ARB/05/24), Tribunal’s Ruling regarding the participation of David Mildon QC in further stages of the proceedings, 6 May 2008, available at http://icsid.worldbank.org/ICSID/FrontServlet.

  5. 5.

    [2007] EWHC 1513 (Comm); [2008] 1 Lloyd’s Rep 61.

  6. 6.

    [2001] L & TR 11 (Judge Rich QC, Chancery Division).

  7. 7.

    [2004] EWHC 796 (Comm), at [32] and [43], Cooke J.

  8. 8.

    [2005] EWHC 2238 (Comm); [2006] 2 All ER (Comm) 122; [2006] 1 Lloyd’s Rep 375; [2006] 1 CLC. 656.

  9. 9.

    ibid, at [43].

  10. 10.

    ibid, at [39].

  11. 11.

    ‘The IBA guidelines do not purport to be comprehensive…’, per Morison J in ASM Shipping Ltd v. TTMI Ltd [2005] EWHC 2238 (Comm); [2006] 2 All ER (Comm) 122; [2006] 1 Lloyd’s Rep 375, at [43].

  12. 12.

    W Rechberger (Hong Kong symposium on judicial independence, City University, 23 March 2012), also noted that Norwegian arbitration law, Article 13(4), allows the parties to derogate from impartiality and independence: examples are employer representatives on one side, and fellow employees on the other hand. Another example is where partisan experts are chosen. The parties cannot challenge under the UNCITRAL Model Law because both parties will be aware of this ground of partiality. This is rationalised as consistent with freedom of contract. However, it would be problematic if the award were challenged under the New York Convention (1958).

  13. 13.

    Khodykin (Russia: National Report for the Heidelberg conference, summer, 2011): ‘Arbitrators should also disclose if they have been appointed by a party too frequently (Decree of the Moscow Okrug Federal Arbitrazh Court dated 13 October 2008 No KG-A40/9254-08).’

  14. 14.

    Redfern and Hunter on International Arbitration (6th edn, London, 2015), 4.76.

  15. 15.

    Delivered at the University of Miami, 29 April 2010: (2010) 25 ICSID Review 339 (available at: http://www.arbitration-icca.org/media/0/12773749999020/paulsson_moral_hazard.pdf); J Paulsson, The Idea of Arbitration (Oxford University Press, 2013), chapter 5; and further comment by Joseph Mathews, (2010) 25 ICSID Review, at 356 and David D Branson, (2010) 25 ICSID Review, 367; see also David D Branson, ‘American Party-Appointed Arbitrators: Not the Three Monkeys’ (2004) 30 U Dayton L Rev 1.

  16. 16.

    For an exotic example of an appeal to the Court of Appeal from such a judge-arbitrator decision, Henry Boot Construction Ltd v. Alstom Combined Cycles Ltd [2005] EWCA Civ 814; [2005] 1 WLR 3850.

  17. 17.

    Section 93, Arbitration Act 1996, enabling a Commercial Court judge (with the Lord Chief Justice’s permission), or an official referee (now a judge of the Technology and Construction Court), to sit as a judge-arbitrator; fees are payable to the High Court.

  18. 18.

    Section 25, Arbitration (Scotland) Act 2010.

  19. 19.

    ICSID Case No ARB/10/3, 23 December 2010.

  20. 20.

    ibid, at [8]: ‘…I have been nominated by Venezuela in two other cases, in the last 6 years, for which the Tribunal is constituted… Also, I have accepted a nomination in a new case, this year, for which the tribunal is not yet constituted… ICSID Case No ARB/10/9.’ Therefore, the Tidewater case (2010) was only the third case when she was nominated. However, at the time of this decision she had already accepted a further appointment by Venezuela.

  21. 21.

    ibid, at [64]: ‘…the mere fact of holding three other arbitral appointments by the same party does not, without more, indicate a manifest lack of independence or impartiality…’

  22. 22.

    P Ashford, ‘Arbitrators’ Repeat Appointments and Conflicts of Interest’, criticising this case: http://www.crippslink.com/index.php?option=com_content&view=article&id=1146:arbitrators-repeat-appointments-and-conflicts-of-interest&catid=16:international-arbitration-publications&Itemid=537.

  23. 23.

    Professsor Philip Yang, commodity and maritime arbitrator, and visiting professor at City University, Hong Kong, noted [In] smaller venues there will be only a dozen or so experienced arbitrators available; very soon the IBA ‘ration’ will be used up; in fact some arbitrators in these zones of dispute might be holding more than 200 cases at a time, often from the same small pool of firms’.

  24. 24.

    [2001] UKHL 67; [2002] 2 AC 357, at [88].

  25. 25.

    (1997) 24 EHRR 221, 244, at [73].

  26. 26.

    T Bingham, The Business of Judging (Oxford University Press, 2000), 59.

  27. 27.

    The Departmental Advisory Committee Report (1996), at [100] ff; available in Appendix 1 to Mustill & Boyd, Commercial Arbitration: Companion Volume (London, 2001).

  28. 28.

    ibid, at [101] and [102].

  29. 29.

    ibid, at [102].

  30. 30.

    See also remarks in JDM Lew, L Mistelis, S Kröll, Comparative International Commercial Arbitration (Kluwer, The Hague, 2003), 11.19.

  31. 31.

    Principle 1.1, American Law Institute/UNIDROIT’S Principles of Transnational Civil Procedure (Cambridge University Press, 2006), 17.

  32. 32.

    ibid, at Principle 1.2.

  33. 33.

    ibid, at Principle 1.3.

  34. 34.

    The Departmental Advisory Committee Report (1996), at [100] ff; available in Appendix 1 to Mustill & Boyd, Commercial Arbitration: Companion Volume (London, 2001), at [103].

  35. 35.

    On the question of arbitrators’ special expertise, Checkpoint Ltd v. Strathclyde Pension Fund [2003] EWCA Civ 84; [2003] L & TR 22; [2003] 1 EGLR 1; [2003] NPC 23.

  36. 36.

    The Departmental Advisory Committee Report (1996), at [100] ff; available in Appendix 1 to Mustill & Boyd, Commercial Arbitration: Companion Volume (London, 2001); see also JDM Lew, L Mistelis, S Kröll, Comparative International Commercial Arbitration (Kluwer, The Hague, 2003), 11.29.

  37. 37.

    M Hunter and A Philip, ‘The Duties of an Arbitrator’, LW Newman and RD Hill (eds), The Leading Arbitrators’ Guide to International Arbitration (3rd edn, New York, 2014), chapter 20.

  38. 38.

    Mustill & Boyd, Commercial Arbitration: Companion Volume (London, 2001), 30–37, discussing respectively sections 33 and 40, Arbitration Act 1996.

  39. 39.

    Section 40(1), Arbitration Act 1996.

  40. 40.

    A Pullé, ‘Securing Natural Justice in Arbitration Proceedings’ (2012) 20 Asia Pacific L Rev 63.

  41. 41.

    Arguably, this might be a special problem in the case of ‘med-arb’, where the arbitrator acquires early acquaintance with the case, before taking on the mantle of arbitrator: on ‘med-arb’ in general, Andrews on Civil Processes vol 1, Arbitration and Mediation --> (Intersentia, Cambridge, Antwerp, Portland, 2013), chapter 2.

  42. 42.

    The singular ‘arbitrator’ is used throughout, rather than ‘tribunal’; although English arbitration is accustomed to arbitration panels consisting of two or more (normally, nowadays, an uneven number), most references are heard by a single arbitrator.

  43. 43.

    Redfern and Hunter on International Arbitration (6th edn, Oxford University Press, 2015), 5.70ff, noting the range of principles of ‘due process’; see also, ibid, 10.53 ff in the context of judicial challenges before national courts on the ground of procedural irregularity.

  44. 44.

    Perri (Brazil: National Report for the Heidelberg conference, summer 2011): ‘ The law itself provides for a limitation to the powers of the arbitrator, who must establish (and conduct) the proceeding in compliance with the constitutional principle of the due process of law (‘CFB’ – Brazilian Constitution, art. 5, LIV and LV c/c art. 21, Par. 2, of the ‘LAB’), under penalty of the award being revoked by means of a claim for annulment (art. 32, VIII c/c art. 33, both in the ‘LAB’).’

  45. 45.

    R Stürner (Germany: National Report for the Heidelberg conference, summer 2011).

  46. 46.

    Norbrook Laboratories v. Tank [2006] EWHC 1055 (Comm); [2006] 2 Lloyd’s Rep 485; [2006] BLR 412, at [137], Colman J (unilateral telephone conversations; but no substantial injustice occurred on the facts).

  47. 47.

    [1963] 1 Lloyd’s Rep 214, 225–6.

  48. 48.

    [2006] EWHC 1055 (Comm); [2006] 2 Lloyd’s Rep 485; [2006] BLR 412, at [139], [142], and [154] to [156].

  49. 49.

    ibid, [156] on both points.

  50. 50.

    Russell on Arbitration (24th edn, London, 2015), 5-039 citing Hong Kong discussion and other materials.

  51. 51.

    Section 33(1)(b), Arbitration Act 1996.

  52. 52.

    Section 33(1)(b), Arbitration Act 1996.

  53. 53.

    Section 69, Arbitration Act 1996; if ‘reasons’ are dispensed with, by agreement, there is no such right of appeal: section 69(1), Arbitration Act 1996: An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section…; and section 45(1), Arbitration Act 1996.

  54. 54.

    Section 69, Arbitration Act 1996.

  55. 55.

    William W Park, ‘The Four Musketeers of Arbitral Duty’ in Y Derains and L Lévy (eds), ‘Is Arbitration Only as Good as the Arbitrator?’ (2011) 8 ICC Dossiers 25, 26–7.

  56. 56.

    ibid, at 26.

  57. 57.

    ibid, at 26.

  58. 58.

    ibid, at 33.

  59. 59.

    ibid, at 33.

  60. 60.

    Park cites a French case, ibid, at 28, where an arbitral tribunal was held to have acted wrongly by imposing a legal analysis not explored with the parties during the hearing; see further case law on this problem, ibid, 41 at nn 18, 19 (A Pullé, ‘Securing Natural Justice in Arbitration Proceedings’ (2012) 20 Asia Pacific L Rev 63).

  61. 61.

    William W Park, ‘The Four Musketeers of Arbitral Duty’ in Y Derains and L Lévy (eds), ‘Is Arbitration Only as Good as the Arbitrator?’ (2011) 8 ICC Dossiers 25, 29–36, analysing the US Supreme Court’s majority decision in Stolt-Nielsen v. AnimalFeeds (2010) in which an arbitral tribunal was held to have erred by permitting consolidation of related claims against the same party to take place, ostensibly on the basis of party consent, but—according to the majority—without any convincing consensual support: 130S Ct 1758 (2010).

  62. 62.

    ibid, at 26.

  63. 63.

    ibid, at 27.

  64. 64.

    ibid, at 27.

  65. 65.

    ibid, at 27.

  66. 66.

    ibid, n 11, citing Article 35 ICC Rules; and Article 32.2, LCIA Rules.

  67. 67.

    ibid, at 36, noting Mitsubishi Motors v. Soler Chrysler-Plymouth 473 US 614 (1985).

  68. 68.

    ibid, at 37, Accentuate Ltd v. Asigra Inc [2009] EWHC 2655 (QB); [2010] 2 All ER (Comm) 738; [2009] 2 Lloyd’s Rep 599; [2010] Eu LR 260.

  69. 69.

    Park, ibid, at 36.

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    Neil Andrews

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Andrews, N. (2016). The Tribunal’s Integrity: Impartiality and Procedural Responsibilities. In: Arbitration and Contract Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 54. Springer, Cham. https://doi.org/10.1007/978-3-319-27144-6_6

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