There is a tension inherent to arbitration that raises the sensitive issue of the independence and impartiality of arbitrators; it is the “tension of an ideal, that is, perfect fairness of the arbitrator, against the reality that the very method by which arbitrators may be selected can undermine such fairness”. This is because the arbitrator is “an organ of justice [fulfilling] a role analogous to that of a judge”, even as he is, unlike national judges, “not apart from but of the marketplace”. In view of the arbitrator's adjudicatory function, the principles of independence and impartiality are globally accepted, even though not always together.
But what exactly do these two terms signify? Although both concern the arbitrator's neutrality, they are commonly recognized as distinct from each other. While independence is an external, objective standard that can be measured in terms of whether there is a pre-existing relationship—financial, professional, social, familial, or personal in any other way—between an arbitrator and another party, impartiality refers to an internal, subjective state of mind whose bias or prejudice can normally be assessed only as the arbitration proceedings unfold, through the conduct of the arbitrator.
[...] One arbitrator disclosed this, while the other did not. After the award was given, the latter was challenged successfully on this ground, and, as a result, the award was annulled. Since an arbitrator's bias can however be inferred from the way he has exercised his adjudicatory role in the course of the arbitration, challenges based on arbitrator impartiality make somewhat more sense post-arbitration. These, in addition to challenges based on the arbitrator's lack of independence, are possible after the handing down of the award either at the award-annulment stage at the arbitral seat, or at the recognition and enforcement stage, at the forum where recognition and/or enforcement are sought. [...]
[...] A., ASA Bull. 2/1992. Federal Supreme Court of Switzerland May 1992. [...]
[...] Seeing the importance of the independence and impartiality of arbitrators, a valid question to ask ourselves is: to what extent are the independence and impartiality of arbitrators threatened in arbitration? To answer this question, we must first understand why arbitrators might not be independent and impartial in the first place before analysing how these two principles have been safeguarded against such risks (II). I. Why Would Arbitrators Not Be Independent and Impartial? Since the arbitrator plays role analogous to that of a judge”, and yet is subject to a higher risk of not being independent and impartial, we should explore what distinguishes arbitration from litigation in national courts. [...]
[...] “Indépendance, neutralité et professionnalisme des arbitres.” Cahiers de droit de l'entreprise 4 (2012): 27-32. Hanotiau, Bernard. “L'arbitre, garant du respect des valeurs de l'arbitrage.” In Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner, edited by Gerald Aksen, Karl Heinz Böckstiegel, Paolo Michele Patocchi, and Anne Marie Whitesell, 365-370. Paris: ICC Publishing Horvarth, Günther J. Selection of Arbitrators.” In International Construction Law, edited by Susan Meek. Salzburg: Center for International Legal Studies http://washu.wsoldev.com/Library/cdroms/IBL/Construction/s10hor.htm Commonwealth Coatings Corp. [...]
[...] For this reason, the independence and impartiality of arbitrators must be guaranteed II. Why Would Arbitrators Be Independent and Impartial? In order for the field of arbitration to continue growing, it must remain credible as a means to resolve disputes, so that parties will keep on using it. To this end, safeguards have been created to ensure the validity of the process by affirming the independence and impartiality of arbitrators, both prospectively, before the arbitration as well as retrospectively, after A. [...]
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