II. Source of arbitrator's duties
A. Contractual theory
When institutional arbitration is agreed upon, the institutional rules are incorporated in the arbitrator’s contract.4 Most institutional rules prescribe certain procedures to follow as a part of the arbitrator’s duties, such as confidentiality, disclosing conflicts, adhering to timetables and maintaining impartiality and independence.5
B. Legal status theory
This theory states that duties of an arbitrator is quasi-judicial derived from the applicable law and is similar to the position of judges.6 Courts in a number of jurisdictions however have leaned towards the relationship being contractual.7 English courts have held that the relationship is a conjunction of contract and status.8
Several codes of conducts or ethics have been specifically designed for arbitrators.11 While non-enforceable, these recommendary guidelines are nevertheless influential.12 The recently issued draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement released by the Secretariats of ICSID and UNCITRAL marks a continued push towards stronger ethical commitments by arbitrators, however this code is yet in a draft stage.13
III. Different forms of duties
While the different sources prescribe different duties, it is commonly accepted that the most basic duty of arbitrators is to resolve the parties’ dispute.14 This requires maintaining due process, which includes ensuring impartiality and independence, jurisdiction and equality of arms.15 The arbitrators also have a duty to be free of corruption themselves.16
Most sources of arbitrators’ duties impose differing standards of confidentiality.21
Arbitrators’ contractual obligations generally include abiding by the mandate conferred by the parties, including abiding by the parties’ choice of law.22 It also requires maintaining accuracy and party autonomy, with a fidelity to the text and context and an aim to understand the events and how the legal norms apply to the concerned events.23
A number of civil law jurisdictions authorise or obligate arbitrators to reach a settlement agreement between the parties.24 Settlement is relatively less frequent in common law countries.25
IV. Consequences of breach of duties
Arbitrator duties are enforced via a variety of mechanisms depending on the procedural rules that govern the arbitration and severity of the breach, including removal of the arbitrator, loss of remuneration, prohibition from future appointments, and imposition of civil liabilities.26 Arbitrators may also be sued by the parties for breach of contract, however this is subject to the immunities provided to arbitrators in the jurisdiction.27 Serious breaches may also entail setting aside or annulling the award.28 See further Grounds of annulment in ICSID awards.
Berger, K.P., International Economic Arbitration, Kluwer Law International, 1993.
Boog, C. and Moss, B., The Lazy Myth of the Arbitral Tribunal’s Duty to Render an Enforceable Award, Kluwer Arbitration Blog, 2013.
Born, G., International Commercial Arbitration, Second Ed., Kluwer Law International, 2014.
Broches, A., Commentary on the UNCITRAL Model Law, in Bosman, L. (ed.), ICCA International Handbook on Commercial Arbitration, 1990, pp. 1-202.
Collins, M., Do International Arbitral Tribunals have any Obligations to Encourage Settlement of the Disputes Before Them?, Arbitration International, Vol. 19, Issue 3, 2003, pp. 333-343.
Gaillard, E. and Savage, J., Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International, 1999, paras. 1135-1156.
Gearing, M., The Relationship Between Arbitrators And Parties: Is The Pure Status Theory Dead And Buried?, Kluwer Arbitration Blog, 2011.
Giorgetti, C., ICSID and UNCITRAL Publish the Anticipated Draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement, Kluwer Arbitration Blog, May 2, 2020.
Hausmaninger, C., Rights and Obligations of the Arbitrator With Regard to the Parties and the Arbitral Institution – A Civil Law Viewpoint, in ICC, The Status of the Arbitrator 36, 44 (ICC Ct. Bull. Spec. Supp. 1995).
Hunter, S., A Duty to Give Reasons, But only Just, Kluwer Arbitration Blog, 2016.
Lew, D.M.J., Mistelis, L.A. and Kroll, S.M., Comparative International Commercial Arbitration, Kluwer Law International, 2003.
Mustill, M. and Boyd, S., Commercial Arbitration, LexisNexis, 2nd ed., 2002.
Redfern, A. and Hunter, M., Redfern and Hunter on International Arbitration, Oxford University Press, 6th ed., 2015.
Robine, E., The Liability of Arbitrators and Arbitral Institutions in International Arbitrations under French Law, Arbitration International, Vol. 5, Issue 4, 1989, pp. 323-332.
Salahuddin, A., Should Arbitrators be Immune from Liability, Arbitration International, Vol.33, Issue 4, 2017.
Schreuer, C., The ICSID Convention: A Commentary, 2nd ed., Cambridge University Press, 2009.
Shaughnessy, P. and Tung, S. The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer, Kluwer Law International, 2017.
Strong, S.I., Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy Embracing and Exceeding the Common Law-Civil Law Dichotomy, Michigan Journal of International Law, Vol. 37, Issue 21, 2015, pp. 1-56.
Trakman, L., Confidentiality in International Commercial Arbitration, Arbitration International, Vol. 18, Issue 1, 2002, pp. 1-18.
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