Arbitrator’S Impartiality Under Article V(1)(D) Of The New York Convention

Abstract

An arbitrator’s lack of impartiality provides grounds for non-recognition of a foreign or non-domestic arbitral award under Article V(1)(d) of the New York Convention where the parties’ agreement or the law of the arbitral seat required impartial arbitrators. This contribution examines the structure and content of Article V(1) (d) of the New York Convention through the lens of arbitrator’s alleged bias. In the vast majority of such cases, courts have rejected objections to recognition under Article V(1)(d), including on grounds of waiver. Complaints about the qualification of an arbitrator’s impartiality must be invoked initially during the arbitration proceedings. The party cannot resist the enforcement on the grounds of irregular composition of the arbitral tribunal, in cases where it participated in the arbitral proceedings without objection or failed to exhaust all legal remedies at the seat of arbitration within the time limits prescribed by the applicable national law. Complicated issues arise when there is conflict between parties’ agreed composition as to the qualification of impartiality of the tribunal and mandatory law of the arbitral seat. The effect of bias on the arbitral award or the issue of waiver are also taken into consideration by the courts when assessing the defence of the irregular composition of the arbitral tribunal.