Tribunal Independence

Question 1

What is the significance of Independence and impartiality

Answer 1

They have the ability to set aside the award or have it refused enforcement

Question 2

What is independence

Answer 2

The relationship with others, how that impacts impartiality

Question 3

What is impartiality

Answer 3

The lack of perceived or actual bias

Question 4

What is the standard of disclosure for:
Model Law
ICC
IBA

Answer 4

Model law: In the eyes of a reasonable third party with knowledge of the matter

ICC: In the eyes of the party, reasonable doubts

IBA: In the eyes of the parties

Question 5

Why is there a focus on the eyes of the parties

Answer 5

Autonomy and allows for their opinion and decisions to matter

Question 6

What are the IBA guidelines on conflict of interest

Answer 6

The most cited and referenced guidleines

The ICC and other insitutions arent bound, but still always reference them

Question 7

what are the 3 categories of guidelines

Answer 7

Red: Gives rise to justifiable doubt

Orange: May give rise to justifiable doubt

Green: Does not give rise to justifiable doubt

Question 8

Red

Answer 8

Non-Waivable: Must disclose and cannot serve

Example: Personal or financial interest in the outcome of the case

Waivable: Must disclose and can serve if both parties consent

Example: Counsel in firm of one of the parties

Question 9

Orange

Answer 9

Must disclose and can serve unless the party objects

Example: Close relationship with one of the counsel

Question 10

Green

Answer 10

Does not have to disclose, can serve

Spoke on the legal issue but not the actual case

In same organisation

Question 11

ICC Challenge procedure

Answer 11

ICC has the power to confirm or reject an arbitrator
HAve to bring it up within 30 days
Write it to the secretair
Secreteait asks for comments from other party and arbitrator
circulates the coments
Court decides

Wont allow counsel from other branches of same law firm to be arb

Question 12

UNCITRAL challenge procedure

Answer 12

Nornally used for ad hoc
Must raise chalenge within 15 days
Bring to aprties and arbitrator
Appointing authority decides

Question 13

ICDR Challenge procedure

Answer 13

Must bring within 15 days
To the administrator
Admin tells other party but not tribunal
Tells tribinal that theres a challenge but not who bought it
Asks the other party if they will tell them to resign
Tells member and sees if they will withdraw
If no, admin decides

Question 14

Thinsg bought up for independence

Answer 14

Ex parte
Doble hatting: Being an arb in one case, being counsel in another but for same issue- will tell to withdraw as counsel
Interviewing poyential arb
Multiple appointments
Lawyer at same firm

Question 15

Duty o dislosure

Answer 15

Concerned with things tha give rise to justifiable doubts
Not just a technicality, ha impact on proceudre

If mid way- time and expense
If end- award enforcement and recognition issue

Question 16

Test for disqualification of arb
IBA

Answer 16

Objective- reasonable doubts to their impartiality and independence

Question 17

Repeat appointments

Answer 17

Party may repeatly appoint arb for- expertise/availability/ reputation/

Question 18

Main issue w repeat appointments

Answer 18

Ineequality of arms: Knows so much about one party and doesnt know anything about another

Question 19

Independence and repeat appointments

Answer 19

Are they reliant on their appointment for a signifficant amount of their income/security of tenure

Question 20

Impartiality and repeat appointments

Answer 20

The Party wouldn’t appoint them if they repeatedly ruled against them
Tacticl advantage and there may be unconscious bias in the appointing parties favour

Question 21

Issue w large international firms

Answer 21

THats where most arbitrators come from, hard when that firm is also counsel
Especially when theres only a number of specialist arbitrators in tha area
Guidelines weakened.

Question 22

Challenges and replacement arb

Answer 22

Traditionally used to only be on death or ilness or resignation
But now du to the higher stakes, its crucial that arbitrator not be not indpeendent or impartial

Question 23

Who do you take the challenge to>

Answer 23

Insitution
if not, appointing auhtority
If not, PCA
If ad hoc, seat

Question 24

Problem w ad hoc-

Answer 24

most of the tie has to be resolved through the courts

Question 25

Which ICC and UNCITRAL guidelines on imparitlaiyt and independence

Answer 25

14.1 ICC
12 UNCITRAL

Question 26

Basis for challenge

Answer 26

Relationship between arb and counsle
Relationship between arb and party
£rd party involvement i another case
Prior coments on case

Question 27

Which articles for conflict waiver

Answer 27

40 ICC
31 ICDR
4a IBA

Question 28

Conflic waiver

Answer 28

Must disclose promptly or will sya that they accquiested
IBA within 30 days

Question 29

Flling vacancy

Answer 29

ICC 15.4- grants discretion to AA to determine

Question 30

Truncated

Answer 30

May just leave the remaining arbitrators to make a decision if too far along

Question 31

Proceudre for replacement

Answer 31

ICC- parties and discretion to determine how much of arb has to be repeated

UNCITRAL: from moment arb stopped their duties