The Liability of Arbitrators and Arbitral Institutions in International Arbitrations under French Law

Abstract

In institutional arbitration, in contrast to ad hoc arbitration, the parties agree to be bound by the rules of an arbitration institution or an arbitration centre. There are many such different institutions, including about 70 which deal with international commercial matters.1 As for the arbitrators, they may be appointed by the parties, by the institutions, or may be appointed by the party-appointed arbitrators (if the appointee is to be the President) or by a legal authority, third party, individual or company to whom the parties have agreed to refer. In France, in recent years, there has been a notable development in cases brought before state courts in which the parties have brought an action to enforce liability against arbitration institutions or the arbitrators themselves. In examining the basis for this action under French law, it will be seen that it is based on contract. It will then be noted that under French case law the action is limited by narrow conditions. The contractual basis of the action is rooted in the parties’ relationships with arbitration centres and arbitrators. The nature of such relationships depend upon the role played by the latter. ### (a) The relationship of the parties with the arbitration centre #### (i) Contractual relationship Arbitration centres which publish arbitration rules offer certain services to the parties. The majority of such rules clearly state that the centre will not act as arbitrator either by itself or acting through an individual. Thus, Article 2 of the Rules of the ICC states: > The Court of Arbitration does not itself settle disputes … It appoints, or confirms the appointments of, arbitrators … In the same way, Article 2 of the Rules of the Chambre Arbitrale de Paris states: > La Chambre Arbitrale will arrange the arbitration; for each case, it will set up an arbitration tribunal which will conduct the arbitration. Article 1451 of the French New …