5 Impartiality and Independence of Arbitrators and Arbitral Institutions

Abstract

This chapter assesses the concept of impartiality and independence. The Law on International Commercial Arbitration provides that the potential candidate for the appointment of an arbitrator must disclose any circumstances that may cause a well-grounded doubt regarding his impartiality or independence in writing. In cases where the competent court, appoints an arbitrator, in the absence of the agreement between the parties, the court must ensure that an independent and impartial arbitrator is appointed. Independence and impartiality in Russia are not issues limited to arbitrators. The core of the issue is the independence and impartiality of arbitral institutions.Independence is understood to be an objective state of an arbitrator in the absence of any relationship with a person or circumstances which affect the arbitrator’s decision. Impartiality means that the arbitrator is not, directly or indirectly, interested in the outcome of the case and does not have preference or other prejudice in relation to a party, his representative, expert, or witness. Russian courts have ruled on the impartiality and independence of arbitrators as well as arbitral institutions in an inconsistent manner. In 2010, the International Court of Commercial Arbitration (MKAS) adopted a document entitled Rules on Impartiality and Independence of Arbitrators. Apart from being a guidance for arbitrators and the parties, this document is expected to give guidance to the courts when facing an application for setting aside an award and the refusal of recognition and enforcement of awards of international commercial arbitration on the grounds of the absence of impartiality and independence.