Impartiality of the Party-Appointed Arbitrator

Abstract

in an international commercial arbitration ostensibly to be heard before an independent and impartial three member tribunal it is often the case that one of the parties perceives that his nominee is acting impartially but that the other party-appointed arbitrator is not. Craig, Park and Paulsson in their book on ICC arbitration suggest that such an imbalance would threaten the fundamental equilibrium of the proceedings.1 The role of the party-appointed arbitrator in international arbitration is a much debated issue. Wetter notes that the dichotomy between those systems which require a judicial standard of conduct and those which permit a party-appointed arbitrator not to respect such moral standards goes to the heart of the international arbitral process and causes practical problems in most proceedings.2 The degree of bias might range from a covert sympathy with the cause of the nominating party to an overt taking of instructions from, and offering of advice to, the nominating party. Is the party-appointed arbitrator to be an advocate for the nominating party during the course of the hearings and deliberations? Does a uniform standard exist? What are the legal limits to an arbitrator's conduct? At the Iran-United States Claims Tribunal hearings it was alleged in one case that an Iranian arbitrator revealed the contents of a draft award to the Iranian party, leading to a last minute settlement, and in another case that the Iranian arbitrator solicited further evidence from the Iranian party to satisfy questions that arose during the deliberations.3 Is such conduct permissible under the UNCITRAL Rules chosen by the parties? The dichotomy of views held internationally on the role of the party-appointed arbitrator is well illustrated by the different approaches taken in the ABA/AAA's ‘Code of Ethics for Arbitrators in Commercial Disputes’ and the IBA's ‘Ethics for International Arbitrators’. …