- Thursday, October 4, 2018
Author: Melissa Balikci
It is essential that all arbitrators are and remain, independent and impartial throughout the arbitration. Almost all institutional rules contain a provision requiring arbitrators to be impartial and independent. Examples include Article 14 of the ICC Rules where "lack of impartiality or independence" is a ground for challenging the arbitrators and Article 10 of the LCIA Rules and Article 12 of the UNCITRAL Arbitration Rules where "justifiable doubts as to the arbitrator's impartiality or independence" is foreseen as a valid ground for challenge. Other grounds for challenge include arbitrators acting contrary to the arbitration agreement and the arbitrator's qualifications.
However, there are no criteria set as to the standard required in order to uphold an application challenging the arbitrator's independence and impartiality. The LCIA and UNCITRAL Rules make reference to "justifiable doubts" which is not defined. IBA Guidelines on Conflicts of Interest in International Arbitration serve as a guide, and is generally taken into account when an arbitrator is challenged. Nevertheless, neither arbitrators, nor the authority (i.e Secretariats of arbitral institutions) determining the result of the challenge are bound by the IBA Guidelines.
Under institutional arbitration proceedings, such challenges are submitted to the relevant Secretariat and once a decision is made, this is notified to the parties and the arbitrator(s). In cases conducted under the ICC Rules (the new rules which entered into force on 1 March 2017), parties may ask the ICC Court to provide reasons for its decision. However, these decisions are only available to the parties.