The Rule Against Bias and the Jurisprudence of Arbitrator’s Independence and Impartiality

Abstract

It is self-evident that there can be no justice if the judge is biased. The subject of judicial bias is vast and complex. Though the policy of the law is clear, addressing bias remains a challenge. This article is in two parts: The first presents the underlying common law principles of judicial bias and their evolution through ages, leading to the current test and the continuing difficulties. The second part focuses on the jurisprudence of arbitrators independence and impartiality. The test of apparent bias for an arbitrator is no different from that applicable to judges or members of judicial tribunals. Arbitratons however are sui generis as a dispute resolution mechanism and as such pose challenges The arbitration jurisprudence of independence and impartiality is founded on two United Nations documents: the UNCITRAL Rules of 1976 and the Model Law of 1985. Substantial build up has come from within the arbitration community (chiefly in the form of the IBA Guidelines). The arbitral community has crafted a tailor made jurisprudence, the central thrust of which is to require proper disclosure. Disclosures however pose issues of their own. Both over and under disclosure are problematic. The IBA Guidelines, following an innovative approach, have become the gold standard for disclosure and received wide acceptance and judicial recognition. At the same time some shortcomings and criticism have been levelled. The article presents the foundation of the arbitration jurisprudence; approach taken by the arbitral institutes; the salient features of the English appraoch; how different considerations come into play at different stages of the arbitration and a critical review of the IBA Guidelines. An alternate approach to the IBA Guidelines and the disclosure protocols is also suggested. The article explores the consquences of non-disclosure and if sanctions should follow non-disclosure. The conflicting views here are explored and it is commented why the dicta in Halliburton1 (to mulct an arbitrator with costs of a serious but unsucessful challenge) warrants reconsideration. The article concludes with some recommendations.