Arbitral Immunity Research Articles

The “Arbitral Immunity” Dilemma – What is the Balance?

As recipients of bad news are inclined to blame the messenger, a losing party in arbitration will tend to blame the arbitrator. Arbitrators will usually respond by asserting the doctrine of arbitral immunity. The main objective of this paper is to investigate how arbitrators and the parties who appointed them are protected from certain liabilities imposed on them. Since arbitrators carry out some judicial or quasi-judicial functions that render them comparable to judges, is it fair to compare them to court judges? Do they possess the same powers as court judges? It is often said that arbitrators should be treated as mere professionals hired to provide their services and they should not be protected by the shield of immunity. Some scholars would argue that if immunity is not granted to them, they will work under constant fear of reprisals from unsatisfied parties. Emphasis, in this paper, is laid on the similarities and differences between arbitrators and judges and also in how different legal and arbitral rules approach the concept of arbitral immunity under different jurisdictions. Also, a comprehensive analysis is made on how arbitrators and aggrieved parties to the arbitration are duly protected. A close examination is also undertaken on how to improve the system and move towards a more unified model. After having critically analyzed the basis of arbitral immunity, it is firmly believed that some degree of immunity is important in order to maintain the independence and impartiality of the arbitration process. It can be postulated that arbitral immunity should be qualified and not absolute. By qualified immunity it is understood that when an arbitrator has committed gross negligence, has had a willful conduct or has acted in bad faith, he should not be shielded by the blanket of immunity.

The Extent of the Arbitrator's Immunity from Civil Liability Compared to the Judge's Immunity (Comparative Study)

This study aims at the legal dimensions of the legislative deficiency of the arbitrator's immunity from civil liability in the Jordanian Arbitration Law, which the legislator granted to the judge.
 The researchers reached the need to amend the provisions of the Jordanian Arbitration Law to grant immunity to the arbitrator, especially since the work is similar to that of a judge.
 The judicial immunity of the arbitrator is civil liability in comparison with the immunity of the judge
 Jordanian and Egyptian lawmakers have imposed restrictions on the civil (commercial) arbitrator's responsibility for the mistakes he makes while performing his arbitral mission, This is to encourage arbitration, compared to the position of the arbitrator over the judge's function, hence granting the Jordanian legislator and the Egyptian legislator and the judgments of the commercial arbitrator judicial immunity similar to that enjoyed by the judge but much less than the immunity of the judge.
 We therefore consider it appropriate to examine the arbitrator's immunity, beginning with a shedding light on the judges' immunity from civil responsibility, given the similarity in the task entrusted to both the judge and the arbitrator, which is to resolve disputes by a legally binding and enforceable judgment. 
 This requires us to present the principle of judicial immunity from civil liability, and the reasons that support and oppose such immunity, in order to determine the judicial immunity of arbitrators of civil liability. 

ABSOLIUTAUS IMUNITETO TAIKYMO ARBITRAMS PRIELAIDOS IR PERSPEKTYVOS

Straipsnyje analizuojamas absoliutus arbitro imunitetas nuo žalos atlyginimo ir jo taikymo prielaidos bei pagrįstumas. Taip pat aptariama absoliutaus imuniteto taikymo arbitrams kilmė, paaiškinami tokio imuniteto pranašumai ir trūkumai, analizuojama, ar Lietuvoje yra sąlygų arbitrą visiškai atleisti nuo atsakomybės.

The Arbitrator’s Liability and Immunity Under Swiss Law – Part I

The question of the arbitrator’s liability and immunity under Swiss law is relevant to anyone who currently sits as an arbitrator in Switzerland or is planning on doing so. Part I of this article introduces the matter and sets forth the terminology used and the scope of study. After an analysis of the arbitrator’s status and of the nature of his mission, this article examines the arbitrator’s civil liability on the basis of the arbitrator’s contract. The topic of the arbitrator’s immunity in relation to his civil liability is then entered into through a brief comparative law analysis, in particular in view of the concept of arbitral immunity under United States law and English law. Part II of this article (to be published in ASA Bulletin 1/2017), will analyze the arbitrator’s immunity from his contractual liability under Swiss law and draw general conclusions.

Landmark Decision on Arbitral Immunity: The Risk of Sanctions for Lawsuits Against Arbitrators

Most international arbitration rules provide that an arbitrator and the arbitral institution shall not be liable for any act or omission in connection with any arbitration conducted under the rules.

Advancements in Arbitral Immunity and Judicial Review of Arbitral Awards Create Ethical Loopholes in Arbitration

Compared to the litigation forum, arbitration is intended to be a flexible, efficient, and private method of rights-based dispute resolution. Because arbitration is a private system of dispute resolution, it is largely (and purposefully) unregulated. The perjury, tampering, and other criminal laws dealing with the administration of justice simply do not apply to arbitration as they are currently written. In addition, the expansion of judicial immunity to the arbitral forum has caused a potential ethical “loophole” within arbitration. In other words, when arbitration parties, witnesses, and attorneys engage in conduct that would be criminally punishable in litigation in the arbitral forum, those wrongdoers are not only free from criminal liability but also free from civil liability. While attorneys are still subject to ethical codes that would prohibit them from engaging in this type of wrongdoing, non-attorney participants are largely shielded from liability. This Chapter suggests two ways to close the loopholes. First, this Chapter recommends extending the criminal laws of perjury, tampering, and other crimes against the administration of justice to the arbitral forum. Second, this Chapter recommends that the courts employ a consistent standard of review to address better issues of participant wrongdoing.

Taming the Wild West of Arbitration Ethics

The boundaries of ethical behavior in litigation are well known and understood in the legal community. Attorneys and parties cannot lie under oath, are prohibited from destroying documents, and are prohibited from tampering with witnesses. The criminal law and rules of attorney ethics have long prohibited these practices in order to ensure that the public system of dispute resolution (i.e., court) is fair by ensuring truthfulness and the preservation of relevant evidence. Whether these rules apply in the arbitral forum, however, is unclear, at best. The criminal laws dealing with perjury and tampering of witnesses and documents generally only apply to “official proceedings,” and arbitration likely does not fall within the definition of an “official proceeding.” The revisions to the ethics rules do cover the arbitral forum, but the criminal law has been slow to catch up. This paper recommends revising the definition of “official proceedings” to include the arbitral forum. Such revision would make the arbitral forum fairer, make the ethical rules and the criminal law more congruent, and it would fill an “accountability” gap that arises by operation of the increased operation of arbitral immunity laws. Revising the criminal law in such a manner, on a state-by-state basis, would create uniformity across the nation and hold accountable those (attorneys and non-attorneys alike) for engaging in conduct that is properly punishable in the litigation forum.

The Necessity of an 'Opt-In' Approach to Class Arbitration

While the policy favoring arbitration has fully matured in the United States, the question of the propriety and feasibility of class-wide arbitration remains unresolved. However, another and perhaps more critical question is whether class arbitration should be an opt-in or opt-out matter. This article argues that an opt-in approach to class arbitration is necessary both to ensure a capable resolution and to preserve the rights of prospective class members. Mr. Knutson raises the difficulties of an opt-out approach to class arbitration. Specifically, the article discusses the rights of absent class members, the enforceability of the award, the availability of arbitral immunity, and offers a solution in the form of an opt-in approach. The opt-in approach ensures that everyone bound by the award and any resultant judgment has affirmatively chosen to participate. This approach thereby alleviates concerns over fundamental fairness, the contractual rights of absent class members, the validity of their arbitration agreement, and the prospect of collateral attacks.

Market Solutions to Market Problems: Re-Examining Arbitral Immunity as a Solution to Unfairness in Securities Arbitration

Market Solutions to Market Problems: Re-Examining Arbitral Immunity as a Solution to Unfairness in Securities Arbitration

Independence, Impartiality, and Immunity of Arbitrators—us and English Perspectives

At the 2002 conference of ICCA (International Commercial Congress of Arbitration), the conference participants debated the following proposition: ‘the parties, not the arbitrators, control the arbitration.’ Thus, the proposition permitted only two answers—either the parties or the arbitrators control the arbitral process. Both answers were consistent with the contractualist theory of arbitration:

The Immunity of Arbitrators edited by Dr. Julian D. M. Lew

The Immunity of Arbitrators edited by Dr. Julian D. M. Lew. Published by Lloyd's of London Press Ltd, UK, (1990, 129 pp and xix, incl. Index). Hardback. price £52. Dr. Julian Lew has a valuable instinct for identifying the key issues of the day. In his classic work The Applicable Law in International Arbitration (now urgently in need of a new edition) and in the later Contemporary Problems in International Commercial Arbitration he brought to the international arbitration community a cogent understanding of some important areas of practice. Now, in The Immunity of Arbitrators he has once again made a significant contribution in a field which gives cause for concern in our increasingly litigious society. The whole area of the legal status of arbitrators and their liabilities to civil process is a minefield in which there is currently little or no harmonisation in different legal systems. Indeed, in only a handful of jurisdictions is the position settled. One such rare jurisdiction is the United States of America which appears to be the only country in which arbitrators enjoy absolute immunity. > Arbitrators may act with impunity, > > For theirs is a favored community, > > Though losers may whine, > > And even malign, > > Judges will guard your immunity. So said a United States judge, apparently, in an address to a conference of arbitrators. Indeed, immunity from suit both for arbitrators and arbitral institutions is deeply rooted in U.S. Federal common law. There have been some incursions at the level of State courts, but even where that has happened State legislatures have stepped in quickly to reaffirm the absolutely character of immunity. At the other end of the spectrum a very few civil law countries go in the opposite direction explicitly. The 1988 Spanish Arbitration Act contains the following provision: > 16. Acceptance obligates the arbitrators and, if such is the case, the Institution or Association, to faithfully fulfil their assignment, incurring, if they do not do so, liability for damages they may occasion due to …

The Immunity of Arbitrators. Edited by Julian D. M. Lew. Lloyd's of London Press Ltd, 1990. Published in Conjunction with the School of International Arbitration

The Immunity of Arbitrators. Edited by Julian D. M. Lew. Lloyd's of London Press Ltd, 1990. Published in Conjunction with the School of International Arbitration

The Immunity of Arbitrators from Negligence

The Immunity of Arbitrators from Negligence