Tribunal Independence Flashcards
What is the significance of Independence and impartiality
They have the ability to set aside the award or have it refused enforcement
What is independence
The relationship with others, how that impacts impartiality
What is impartiality
The lack of perceived or actual bias
What is the standard of disclosure for:
Model Law
ICC
IBA
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
Why is there a focus on the eyes of the parties
Autonomy and allows for their opinion and decisions to matter
What are the IBA guidelines on conflict of interest
The most cited and referenced guidleines
The ICC and other insitutions arent bound, but still always reference them
what are the 3 categories of guidelines
Red: Gives rise to justifiable doubt
Orange: May give rise to justifiable doubt
Green: Does not give rise to justifiable doubt
Red
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
Orange
Must disclose and can serve unless the party objects
Example: Close relationship with one of the counsel
Green
Does not have to disclose, can serve
Spoke on the legal issue but not the actual case
In same organisation
ICC Challenge procedure
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
UNCITRAL challenge procedure
Nornally used for ad hoc
Must raise chalenge within 15 days
Bring to aprties and arbitrator
Appointing authority decides
ICDR Challenge procedure
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
Thinsg bought up for independence
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
Duty o dislosure
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
Test for disqualification of arb
IBA
Objective- reasonable doubts to their impartiality and independence
Repeat appointments
Party may repeatly appoint arb for- expertise/availability/ reputation/
Main issue w repeat appointments
Ineequality of arms: Knows so much about one party and doesnt know anything about another
Independence and repeat appointments
Are they reliant on their appointment for a signifficant amount of their income/security of tenure
Impartiality and repeat appointments
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
Issue w large international firms
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.
Challenges and replacement arb
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
Who do you take the challenge to>
Insitution
if not, appointing auhtority
If not, PCA
If ad hoc, seat
Problem w ad hoc-
most of the tie has to be resolved through the courts
Which ICC and UNCITRAL guidelines on imparitlaiyt and independence
14.1 ICC
12 UNCITRAL
Basis for challenge
Relationship between arb and counsle
Relationship between arb and party
£rd party involvement i another case
Prior coments on case
Which articles for conflict waiver
40 ICC
31 ICDR
4a IBA
Conflic waiver
Must disclose promptly or will sya that they accquiested
IBA within 30 days
Flling vacancy
ICC 15.4- grants discretion to AA to determine
Truncated
May just leave the remaining arbitrators to make a decision if too far along
Proceudre for replacement
ICC- parties and discretion to determine how much of arb has to be repeated
UNCITRAL: from moment arb stopped their duties
