Part I Commentary on the ICDR International Rules, 38 Article 38—Exclusion of Liability

Abstract

This chapter explores Article 38 of the ICDR Rules, which seeks to absolve the arbitrators and the ICDR Administrator of any liability in connection with the arbitration to the fullest extent allowed by the applicable law. While arbitrator immunity and that of arbitral institutions is typically dealt with in applicable national laws, Article 38 performs the important additional function of providing a contractual basis for granting immunity. The 2014 revisions to the provision made some subtle changes to the text of what is now Article 38. The revised text now excludes the waiver of liability to the extent required by the applicable law. In addition, Article 38 now explicitly provides that the arbitrators and ICDR are immune from suit and from being called as a party or witness in litigation.