Author: Hans Smit*
Published: April 2010
Arbitrators and Arbitral Tribunals
Independence and Impartiality
Statutory and institutional rules are unanimous in providing that arbitrators in international cases must be neutral and independent. Some provide specifically that arbitrators must carry out their responsibilities in accordance with the applicable rules. Those requirements also apply to party-appointed arbitrators. However, experience indicates that arbitrators not infrequently depart from the norms of proper arbitral conduct. Not surprisingly, when they do go astray, they belong overwhelmingly to the party-appointed category.
Institutional rules generally do not seek to provide sanctions for such misconduct. On the contrary, they generally purport to exclude liability for whatever arbitrators do in their professional activities and make no distinction regarding whether the arbitral conduct is of a kind that reasonably should not be shielded from liability. More recently, probably in response to reported arbitral misconduct, some rules do make such a distinction. Recent scholarship on arbitrator malfeasance has evaluated arbitrator independence and impartiality.
The purpose of this exercise, based in part on the writer’s own experience in international arbitration, is to explore the most frequent instances of arbitral misconduct and the remedies for appropriate redress the law and applicable institutional rules fail to provide, but should provide. It will also address the case of misbehaving counsel and the remedies to redress their misbehavior.
Arbitrators may misbehave throughout the arbitral process. They may fail to disclose disqualifying circumstances. The generalized disclosure statement they are normally required to provide facilitates this type of obfuscation. They may fail to attend properly notified sessions of the tribunal. They may engage in ex parte communications with a party or third persons while the arbitration proceeds. They may disclose to others in camera deliberations of the tribunal, and they may resign for an invalid reason, preferably at a late stage of the proceedings, in an effort to obstruct the proper progress of the arbitration. In the following, I will consider each of these forms of arbitral misconduct, as well as misconduct by counsel in arbitration, in some detail and propose appropriate measures of redress.
*Stanley H. Fudd Professor of Law, Columbia University. The author gratefully acknowledges the assistance of Ana Christa Boksay.