Author: Hans Smit*
Published: December 1998
Immunity of Arbitrators
Description: I. GENERAL OBSERVATIONS
1. This Chapter deals with two subjects that are extraneous to the processing of an arbitration. It provides in Article 77 for exclusion of liability of the arbitrators, WIPO, and the Center, and in Article 78 for a waiver of any claim for defamation based on utterances in preparation for, or in the course of, an arbitration. While the applicable law of defamation may regard the conduct covered by these provisions as not actionable in any event, the rulemakers apparently deemed it prudent contractually to regulate these subjects. These provisions raise two questions: first, do they effectively eliminate liability when it would be imposed under otherwise applicable law; and, second, to what extent may otherwise applicable law exclude liability beyond that excluded by this Chapter.
2. The effort of this Chapter is to address the substantive obligations of the arbitrators, WIPO, the Center, and the parties resulting from their participation in the arbitral process. It naturally raises the question why exclusion of liability and waiver of defamation were the only subjects addressed in this Chapter. In particular, it might be argued that this Chapter would have provided the appropriate ambiance for setting forth all affirmative obligations the participants in the arbitral process would incur by their participation.
*Stanley H. Fuld Professor of Law and Director, Center for International Arbitration and Litigation Law, Columbia University.