Much has been written about the amorphous, yet fundamental notion of independence of arbitrators. '[A]rbitral independence . . . is an elusive concept which is beyond rational description in the abstract, may only be identified when one sees it and often depends on who is seeing it.'1 The different perspectives from which arbitral independence may be seen-those of courts, counsel and arbitral institutions-are masterfully presented by our esteemed co-contributors to this publication. As perceived by an arbitrator, independence is a spiritual notion, a state of mind, a relentless exercise in self-imposed rigour and, above all, the cornerstone of the arbitrator's jurisdictional function. For an arbitrator, the duty of independence is also the source of some of the most difficult practical problems that he may face in the exercise of his mission. Often, the most practical of problems strike at the most fundamental of concepts. 2 This is certainly the case here, for our reflections on the solutions to these problems and the concept and legal duty of independence concern the arbitrator's role as judge.

I Notion

Independence is a multifaceted concept. It overlaps with other neighbouring concepts such as impartiality, neutrality and objectivity. 3 The obligation of independence is likewise many-sided and can be considered vis-à-vis not only the parties and their counsel (as is normally the case unless otherwise indicated), but also co-arbitrators, the arbitral institution and even the arbitrator himself.

That arbitrators must be independent is a universal requirement of arbitration law. This omnipresent requirement is protected legally at contractual, legislative, constitutional and international levels. An arbitrator who breaches his duty of independence violates an obligation under the contract that assigns him his office and any institutional rules to which the arbitration agreement may refer (for such rules invariably require arbitrators to be independent). Under French law, independence is a matter of domestic as well as international public policy, and is applicable without any need to refer to a particular legal text. 4 Under Swiss law, the duty of independence is protected by the Constitution, Article 30.1 of which guarantees a citizen's 'natural' right to be judged by an independent and impartial court established by law. Swiss courts have relied on this text[Page43:] to sanction an arbitrator's 'devoir d'indépendance' . 5 Arbitrator independence is also a part of European public policy and a fundamental human right, since Article 6.1 of the European Human Rights Convention, which epitomizes a jus commune6 for equitable process, provides that 'everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'.

II Conceptual basis of the arbitrator's duty of independence

Independence is the cardinal virtue of one who judges. 7 After much debate over the legal nature of arbitration and the arbitrator, the question L'arbitre est-il un juge?, asked by Serge Lazareff8 and others, is today largely regarded as settled: the arbitrator is a judge and, in the discharge of his jurisdictional function, should act as one. Hence, independence is a quality-and a legal duty-of central importance to the arbitrator. 9 It is precisely the nature of his role as judge-in other words, his jurisdictional function-that conceptually underpins the requirement that he be independent. According to the Paris Court of Appeal: 'Arbitration finds its jurisdictional value in the independence of arbitrators and the respect of fundamental guarantees.'10 In this context, the famous saying 'L'arbitrage vaut ce que vaut l'arbitre!' takes on normative significance.

Marc Henry, in his monograph on the subject, 11 considers independence to be an inherent part of the definition of an arbitrator. An arbitrator who violates his obligation of independence would be incapable of rendering a valid award. Accompanied by effective sanctions, the duty of independence is normally a sine qua non for arbitration to function properly. 12

The central importance of independence also finds support in modern functional conceptions of natural justice as a process incorporating basic guarantees for a fair trial. 13[Page44:]

III The paradox

An arbitrator's duty of independence, albeit of the same nature as that of a State judge, is more problematic, for it has a greater bearing on the integrity of arbitral justice and is more difficult to attain.

While errors and failings in the operation of State justice are subject to review by a higher court, arbitrators render final awards on the merits, which may be challenged only if basic due process has been violated. 14 The independence of arbitrators is problematic, due to the nature of arbitration as contractual justice or justice by consent, where arbitrators are chosen by the very parties they judge and from whom they are supposed to be independent. It is specifically because they are chosen by the parties that arbitrators need to be independent of them. 15

The problem of arbitrator impartiality thus acquires a 'quasi-metaphysical' dimension; 16 and the responsibility of the arbitrator becomes fundamental. 17 To arbitrate is a 'noble task which challenges the whole personality, all of its intellectual and physical capacities'. 18

IV Independence as an intellectual process

For an arbitrator, independence is usually a matter of personal honour and professional ethics, not merely a legal obligation. No matter how they are appointed, arbitrators today almost invariably see themselves as needing to be independent. A questionnaire on the status of arbitrators prepared by ICC and addressed to 47 practitioners from 24 countries showed that, as might be expected, total independence is almost always perceived as essential. 19 Beyond that basic requirement, there is today a growing body of widespread beliefs amongst international arbitrators concerning arbitrator independence, which provides well-settled answers to common problems.

When put to the test, independence is above all about strength of character. 20 The passage from moral ideal to legal duty, from a state of mind to the performance of an obligation, brings forth a number of tasks that reflect the complexity of the arbitrator's role as a private third party entrusted with the quasi-divine power to judge others.

Independence, as a modus operandi, is the 'intellectual process which would allow the arbitrator, when faced with a dispute, to reach a jurisdictional decision free of all contingency'. 21 In its basic form, it refers to the customary mental operations performed[Page45:] in evaluating opposing claims and rendering justice, i.e. logical reasoning, analytical skills, good judgment, a general sense of fairness or equity, and the imperative need to treat the parties and their contentions with absolute equality. It also calls for intellectual rigour and a constant yearning for objectivity. An arbitrator must distance himself from subjectivity, both in his personal actions and in the exercise of his jurisdictional function. This process of 'self-neutralization' means rising above any potential bias or predisposition towards any one party, on whatever grounds. An arbitrator should look at the conflicting positions of the parties and then form his own decision through the independence of his mind and spirit.

V Prevailing criteria and conceptual limitations to the legal duty of independence

As often happens with legal obligations imbued with strong moral overtones, the duty of independence is torn between two opposing trends: puritanism and pragmatism, in other words between an absolute obligation and a tempered requirement.

Objectivity: appearance of independence

In general, independence is assessed objectively. Arbitrators should not only be independent, but also appear as independent. 22 Accordingly, a mere appearance of bias is sufficient to disqualify an arbitrator. 23 The standard used in both civil and common law jurisdictions is a reasonable suspicion of bias rather than proof of actual bias or a real likelihood of bias. 24

The objective or absolutist approach to independence has been denounced by some as a dogma, cult, or tyranny of appearance, 25 and by others as 'excessive and dangerous puritanism'. 26 Mr Henry has similarly advanced the view that if the obligation of independence is too strict, the arbitration world would be deprived of some of its most famous arbitrators. 27 In a very recent case, 28 the Court of Appeals for the Second Circuit in the USA qualified the 'appearance of partiality' standard as improper, replacing the per se test with a rule of reason approach, whereby failure to investigate a potential conflict of interest is a mere indication of 'evident partiality' under section 10(a)(2) of the Federal Arbitration Act and must be considered along with other elements.

Pragmatic considerations should not, however, be a pretext for tolerating doubts over the independence of arbitrators. 29 The principle of appearance or objective independence is the rule in comparative law. It finds support in fundamental[Page46:] conceptions of justice. In the famous words of Lord Hewart, it is 'of fundamental importance that justice not only be done, but should manifestly and undoubtedly be seen to be done'. 30

Absolute independence: a myth?

Although independence, as a requirement, should be extended to its utmost limits, an arbitrator, as a human being, can never be independent in the full sense of the term. Just as perfect justice may be impossible to attain, pure and absolute independence may well be a myth and an inaccessible ideal. 31 This is especially true in an international context, where arbitrators, counsel and parties often come from different cultural backgrounds and have diverging conceptions of justice.

Even with the best of intentions, an arbitrator can hardly avoid rendering a decision tainted with some degree of subjectivity, for the decision will bear the imprint of his personality, cultural environment and experience. This truth has been expressed with particular force by Judge Mohammed Bedjaoui: 'Like all men, an arbitrator has a conscience which gives him a certain outlook on the world. He cannot detach himself from all the emotional ties which, consciously or unconsciously, may influence his thoughts. Whenever men are judged, including judgment by arbitration . . . a wager is laid on impartiality. An arbitrator is not a disembodied, floating being, without origins, or ethnic, cultural, religious, social and other attachments. . . . I think it would be destructive to exaggerate these considerations, and naïve or suspicious to ignore their existence completely in certain East-West or North-South arbitrations. These are the problems of arbitral 'neutrality' of the harsh times we live in.'32

Although absolute independence may be difficult to attain and arbitrators may be prisoners of their own subjectivity, an arbitrator must constantly strive for perfect impartiality and perfect justice. Only then will he truly discharge the more earthly legal duty of independence. Dealing with complex and difficult situations is part of the art of arbitrating, and that art goes to the essence of judicial wisdom, which can be acquired and crafted only by experience.

VI Practical challenges to the duty of independence

At a more fundamental level, the world with which arbitrators have to deal is inevitably imperfect. It is therefore important at all stages-from initial selection to the rendering of the award-to set philosophical and idealistic conceptions of independence against the realities of arbitration and the practical problems that are commonly encountered.

Firstly, where arbitrators are designated by the parties, the parties' psychological baggage will determine the kind of difficulties arbitrators face when discharging their duty of independence. Parties commonly have a twofold approach to independence. They have a legitimate expectation of independence and judge-like behaviour from the arbitrator[Page47:] appointed by the opposing party, while they expect partiality from their own arbitrator. Authors have warned that this imbalance could threaten the fundamental equilibrium of arbitral proceedings33 and underlies many practical problems.

Secondly, in the world of globalized business and legal services in which international commercial arbitration operates, many, if not most, players are in some way acquainted with each other. It is now widely recognized that what matters in the large majority of cases is not the existence of business or personal relations, but the declaration of such relations by the arbitrator. It is secrecy that is problematic.

Thirdly, the increasing use of strategic challenges to arbitrators' independence is a blight on arbitration today. Deliberate attempts to compromise arbitrators' independence are frequent and come in various forms.

Given these structural and behavioural realities, there are a number of particularly problematical areas, which are considered below, together with the possible solutions that may be drawn from the emerging international consensus on arbitrator independence.

VII Preliminary contacts

Preliminary communications between a party and a prospective arbitrator are almost unanimously accepted in practice. However, they can be problematic because they are unilateral, and arbitrators need to be particularly aware of specific difficulties.

Selection of party-appointed arbitrators

There is much obscurity surrounding the legal status of party-appointed arbitrators. This is a direct consequence of the complex and sometimes contradictory psychological setting in which they are selected. A party-appointed arbitrator may well be known to the party or the party's counsel and may have previously encountered them, professionally or otherwise. He or she may be tempted to show some leaning towards that party in order to increase the chances of being appointed as arbitrator. Yet, any degree of bias the arbitrator might show would compromise his independence and could be used against him or her by an appointing party whose expectations are disappointed.

It has been said that 'the intention of each party in arbitration is to persuade the panel that their position is correct, not to achieve some idealized version of perfect justice'. 34 No one would today question the fact that party-appointed arbitrators must be independent, yet parties nonetheless seek to appoint arbitrators who are predisposed in their favour. While this often remains an unspoken fact of arbitral life, it has on occasion been made explicit, as in the words of Martin Hunter: 'when I am representing a client in arbitration, what I am really looking for in a party nominated arbitrator is someone with the maximum predisposition towards my client, but with the minimum[Page48:] appearance of bias'. 35 In similar vein, Hans Smit, professor at Columbia University, New York, teaches his students that the selection of party-appointed arbitrators should only depend on how sympathetic the arbitrator is to the thesis of his appointing party. 36

Craig, Park and Paulsson, on the other hand, have criticized the practice of appointing biased arbitrators. They have intimated that choosing a predisposed or biased arbitrator is counter-productive, since an arbitrator who displays partiality will lose credibility with the other members of the arbitral tribunal37 and thus undermine the cause of his appointing party. Sometimes arbitrators act as advocates of the parties that appointed them. Although this is to be regretted, it is happily not always the case and it would be wrong and harmful to arbitration to systematically presume bad faith and partiality. 38 Some arbitrators, wishing to rebut potential presumptions of bad faith, have attempted to demonstrate their independence by being overly critical of the position of the appointing party. This too is regrettable, since it distorts the process of rendering justice. 39

Prevailing thinking is that a balance should be sought between the ideal of independence and the realities of the world of arbitration. A distinction is usually made between positive bias and general sympathy towards the appointing party. 40 It is quite acceptable, and even natural, that a party should wish to appoint an arbitrator with the same cultural, business or legal background as itself. 41 A party-appointed arbitrator is a 'friend, who must be independent enough to award against the party who appointed him should the merits of the case warrant it, but who will ensure that all the arguments of his party get a thorough and fair hearing'. 42 Marc Blessing takes a similar view: 'as a rule it can be expected that a party-nominated arbitrator considers it as nobile officium to remain impartial. This commitment to impartiality does not prevent the arbitrator from examining the arguments advanced by 'his party' with particular care, seeing to it that they are carefully examined and weighed within the framework of the deliberations.'43 Accordingly, '[t]he arbitrators selected, one by each side, ought not to consider themselves the agents or advocates of the party who appoints them. When once nominated they ought to perform the duty of deciding impartially between the parties, and they will be looked upon as acting corruptly if they act as agents or take instructions from either side.'44

International arbitrators may, furthermore, have to grapple with divergent conceptions of party-appointed arbitrators under civil law and common law. Civil law imposes the same standard of independence on all three arbitrators, whereas the common law applies a more lenient standard to a party-appointed arbitrator, who may to some extent act as an advocate of the party who appointed him or as a non-neutral arbitrator. The dichotomy between those systems that require a judicial standard of conduct and those that do not[Page49:] goes to the very core of the international arbitral process and often causes practical problems. 45 A collision between different perspectives is highly likely, and even unavoidable, where the arbitral tribunal is composed of party-appointed arbitrators from cultures with opposing conceptions of arbitrator independence. 46 In such cases, the chairman of the arbitral tribunal has the additional task of reconciling the arbitrators' divergent approaches to independence.

Swiss law offers a framework for such monitoring by the chairman of the arbitral tribunal. At first sight, Swiss case law seems to call for a higher degree of independence from the chairman of the arbitral tribunal. 47 However, some legal writers consider that, rather than imposing a higher standard of independence on the chairman, Swiss law simply adds to the chairman's obligation of independence an additional requirement to monitor and check the independence of the party-appointed arbitrators. 48

Although cultural conceptions of arbitrator independence may be converging, there is a trend towards the stricter, civil law view of independence, as reflected in the International Bar Association's rejection of non-neutral arbitrators in 1987. Michael Tupman has clearly explained the unsuitability of non-neutral arbitrators in an international context: 'Unquestionably all members of the tribunal in international arbitration should be held to the same standard of independence, whether appointed by a party or not. The concept of a non-neutral arbitrator as it exists in some common law systems simply has no place where the parties are of different nationalities and might lose faith in the arbitral process if a foreign, apparently lesser, standard were applied.' 49 Some of the most prominent international arbitrators are of the view that: '[t]oday there is evidence, backed by the contribution of ICC practice, of a more general custom requiring independence and impartiality of party-appointed arbitrators in all international commercial arbitrations'. 50

The 'no questioning on the merits' rule

A party or its counsel may try to ascertain a prospective arbitrator's thoughts on the substance of the dispute, with a view to excluding that arbitrator if his thoughts are not in the party's interest. Testing may take the form of a question on a particular point of law. An unsuspecting arbitrator, who may be unaware of the nature of the dispute, might give an answer that would taint his independence for the rest of the proceedings. Even a general question on, say, lex mercatoria51 or a jurisdictional matter like the extension of the arbitration agreement to non-signatories may often be sufficient to sense the direction in which the arbitrator is likely to decide. [Page50:]

Here, more than elsewhere, silence is golden. To avoid traps or twilight zones between legitimate and illegitimate questions, an arbitrator should avoid any questions of a substantive nature. Some arbitrators take this part of their duty of independence very seriously. According to Gerald Aksen, interviews should be kept within strict limits with regard to duration (30 minutes maximum), the persons attending (the party, the party's counsel and an assistant), and substance (questions drawn from a finite list and no reference to the substance of the dispute). 52

VIII Disclosure

The cornerstone of an arbitrator's duty of independence is disclosure, which is increasingly seen as an international custom or usage. 53 The purpose of disclosure is to bring to the parties' knowledge all the facts they need to know to assess the arbitrator's independence. Disclosure has what has been described as a 'cleansing effect'. 54 Events disclosed and accepted by the parties are immunized and may not be relied upon in any challenge that might subsequently be made against the arbitrator's independence. It is a wide-ranging duty, from which the arbitrator is not discharged by mere partial or summary disclosure. 55 All events that are likely to taint the arbitrator's independence in the eyes of the parties must be disclosed. This includes relations of proximity with the appointing party, as well as antagonism or conflicts of interest with the other party. 56 Disclosure also extends beyond the parties themselves to relations with their counsel and with the other arbitrators.

The ICC Rules of Arbitration were expanded in this regard in 1990. Under Article 2.7 of the Rules then applicable, arbitrators were required to be independent and to make a statement to that effect. When making that statement ('statement of independence'), they were (and still are) asked to take into account 'whether there exists any past or present relationship, direct or indirect, with any of the parties or any of the counsel, whether financial, professional or of another kind and whether the nature of such relationship is such that disclosure is called for . . .'. The obligation to disclose past relations with counsel or other arbitrators has been criticized by some authors as too broad and unpractical, targeting the most experienced and well-known arbitrators. 57 Other writers consider that the ICC form results in discrimination between arbitrators, for there are those who feel they need to disclose 'trivia', such as co-authoring a legal article or playing golf with one of the parties' counsel, and those who take what one author refers to as a 'much more common-sense approach'. 58[Page51:]

It is not entirely clear whether distant business relations should be disclosed. This does not seem to be the case in the United States, since the Federal Arbitration Act does not require a 'complete and unexpurgated business biography'. 59 Social connections with the parties, their counsel, and perhaps even with witnesses, should be disclosed. 60 As a rule, in deciding what to disclose, it is always preferable to disclose anything conceivably compromising. 61 In case of doubt, an arbitrator should lean towards disclosure.

The ratione personae scope of the duty of independence may raise particular difficulties in multiparty arbitrations, in addition to those normally encountered in selecting arbitrators in such proceedings. The widespread development of arbitration and the increasing occurrence of complex and intertwined business relations have meant that international arbitral tribunals are very often asked to assert jurisdiction over non-signatories or non-parties, or required to rule on third-party claims. While the exact extent of the duty of independence in relation to non-parties or third-party intervention remains largely unsettled, one thing is clear: an arbitrator's duties to treat the parties equally, observe due process and be independent cover all parties to the proceedings. In other words, an arbitrator's duties expand in keeping with the situation he faces. His obligation to disclose is owed to signatories and non-signatories alike, and to both the initial parties and all those who may subsequently be compelled or entitled to come under the arbitral tribunal's jurisdiction. Thus, statements of independence made at the time of appointment with only the initial parties in mind should be completed, if need be, at the time of the decision on jurisdiction, so as to cover all potential conflicts of interest or other disclosures concerning the new parties to the proceedings. It remains unclear, however, what would be the effect of a challenge made by the initial parties or the third party on the basis of the newly disclosed information.

IX Ex parte communications during proceedings

We have seen that unilateral communications between arbitrators and the parties appointing them are normal during the selection phase. It may also be appropriate for the party-appointed arbitrator to obtain the general views of the appointing party with respect to the selection of the third arbitrator. 62 However, during the course of proceedings, the rule is that all unilateral contacts with one of the parties or its counsel, including meetings, telephone calls and emails, are prohibited. All communications should be made through the arbitration institution or the secretariat of the arbitral tribunal. This is one of the golden rules of the international consensus on arbitrator independence and it is generally observed. As a baseline, the prior consent of the opposing party must be obtained for all ex parte communications. 63

On occasion, however, one may find extreme cases of ex parte communications during the proceedings, such as sharing hotel rooms with one of the parties or the party's counsel. In a US case that received media attention, a thorough investigation by the counsel of the losing party (which was ordered to pay US$ 92 million) revealed that the[Page52:] chairman of the arbitral tribunal had shared the same hotel suit for two nights with the counsel of the party that prevailed. 64

Instances of laxity at one end of the spectrum are matched at the other end by examples of self-imposed rigour where arbitrators prefer to adhere to the highest standards of caution. Typical examples of such rigour include turning down invitations to social events organized by or involving the parties and, where a State is a party to the arbitration, refusing to attend any gathering where officials of that State are present.

In all such cases, the arbitrators are in control and remain free to decide whether or not to initiate or accept unilateral and unacceptable contacts. In other, more difficult and frustrating situations, they may be subject to deliberate attempts by one party to compromise their independence. A popular example is a party's attempt to record a telephone conversation with one of the arbitrators, with a view to using the recording to frustrate the proceedings later, should the need arise.

Attacks on arbitrators' independence may even take on an aggressive and personal tone, as was seen in the investment arbitration between Himpurna California Energy Ltd. (Bermuda) and the Republic of Indonesia. 65 Counsel to one of the parties challenged the impartiality of the chairman of the arbitral tribunal, who was one of the world's most widely recognized arbitrators, claiming that he was 'well known throughout the arbitration community to be in a constant crusade to elevate international arbitration, and thus the power of international arbitrators such as himself, to a level above and beyond the jurisdiction of any court in the world. He has now found himself in a situation in which he believes he can prove his theory and ignore the rightful jurisdiction of the Indonesian courts, at the same time preventing such courts from engaging in their proper and legal authority to review his previous decision.'66

Situations such as these should be handled dispassionately and with legal rigour. Experience is an invaluable asset here and may be an important part of what an acclaimed recent sociological study refers to as the 'symbolic capital' of an arbitrator. 67

In some cases, party-appointed arbitrators may even be subject to special and severe forms of pressure. Jacques Werner paints an interesting, but disturbing picture of civil servants appointed as arbitrators on behalf of non-democratic States. 68 ICC's former practice of automatically confirming State officials selected as arbitrators on behalf of State or parastatal parties drew wide criticism and had to be reconsidered. Although this practice may in the past have served the pragmatic and political purpose of encouraging recourse to arbitration in countries that would otherwise have remained impervious to arbitration, that realpolitik has lost its relevance, now that arbitration is universally recognized and has become the normal method for settling disputes arising under international contracts. [Page53:]

X Conclusion: a changing role for arbitrators

The arbitrator's duty of independence is the keystone of his jurisdictional mission. It is dictated by and stands alongside his other fundamental obligations, including the equal treatment of the parties and the rendering of an enforceable award. In the words of Martin Platte: 'At the very heart of this duty [of arbitrators to render an enforceable award] is the requirement to treat the parties fairly and equally, and give both (or all) parties a fair and equal opportunity to present their case'. 69 It is a duty that also serves the wider interest of the international commercial community in a workable and fair dispute resolution system. With the emergence of international arbitration as the choice method of resolving disputes under international contracts, international arbitrators need to be seen to act in the global interest of the arbitration system at large. Put simply, arbitrators must avoid behaviour that would be detrimental to arbitral justice. An essential part of their responsibility is therefore to adhere strictly to a judicial standard of independence. This responsibility is part of a broader trend towards the moralization of international commercial law in general, 70 which also embraces the parties' counsel. International arbitrators are the primary guardians of public interest in a workable system of international commercial justice, and their behaviour should reflect the tradition of nobility and serenity that since time immemorial has characterized a procedure whereby 'gentlemen were settling a dispute between gentlemen in a gentlemanly way'. 71[Page54:]

1
H.A. Grigera Naon, 'Factors to consider in Selecting an Efficient Arbitrator', ICCA Congress Series No. 9, 286 at 290.

2
Concepts elaborated upon in H. Molutsky, Ecrits, t. II (Paris: Dalloz, 1974) at 44; and by Ph. Fouchard, Ecrits, Comité français de l'arbitrage (Paris, 2007) at 147ff.

3
Recent thinking has pointed to the futility of drawing distinctions between concepts that refer to the same reality and seek to achieve the same goals at law. T. Clay, L'arbitre, (Dalloz, 2000) 248.

4
Cass. civ. 1re, 3 December 1996, Bull. civ. I, No. 427.

5
Tribunal fédéral, 1re Cour civile, 26 October 1966, ATF 92.I.271.

6
S. Guinchard, 'Le procès équitable: garantie formelle ou droit substantiel ?' in Mélanges en l'honneur de Gérard Farjat (Paris: Frison-Roche, 1999) 163.

7
'L'indépendance d'esprit est indispensable à l'exercice du pouvoir juridictionnel, quelle qu'en soit sa source.' T. Clay, supra note 3 at 267 and the decisions to which he refers, notably Paris, 8 May 1970 (Ury), Rev. arb. 1970. 80.

8
S. Lazareff, 'L'arbitre est-il un juge ?' in Mélanges en hommage à François Terré (Paris, 1999) 173.

9
T. Clay, supra note 3 at 267.

10
Paris, 5 May 1989, Rev. arb. 1989.723.

11
M. Henry, Le devoir d'indépendance de l'arbitre (Paris : L.G.D.J., 2001).

12
E. Cárdenas & D.W. Rivkin, 'A Growing Challenge for Ethics in International Arbitration' in G. Aksen, K.-H. Böckstiegel, M.J. Mustill, P.M. Patocchi, A.M. Whitesell, eds., Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in honour of Robert Briner (Paris: ICC, 2005) 191 at 193ff. Denouncing deviations from this cardinal rule: S. Lazareff, 'L'arbitre singe ou comment assassiner l'arbitrage' ibid. 477.

13
See e.g. Art. 6.1 of the European Human Rights Convention focusing on fair process. See also J. Rawls, A Theory of Justice (Oxford, 1999), where justice is seen as consisting largely of procedures rather than outcomes. Procedural fairness is also central to the common law tradition, see U. Muessig & N. Seif, 'The Common Legal Tradition of a Court Established by Law: Historical Foundations of Art. 6 Para.1 European Convention on Human Rights' (2005) 47 American Journal of Legal History 161).

14
M. Reisman, W.L. Craig, W.W. Park, J. Paulsson, International Commercial Arbitration (Foundation Press, 1997).

15
T. Clay, supra note 3 at 236.

16
M. Bedjaoui, 'The Arbitrator: One Man - Three Roles' (1988) 5:1 J. Int. Arb. 7.

17
J-D. Bredin, 'Qu'est-ce que l'indépendance du juge ?', Justices, 1996, n° 3, p. 161. Since the arbitrator is, in the words of Ph. Fouchard, a 'juge privé investi par la confiance mutuelle des parties', he should possess what the Paris Court of Appeal calls 'indépendance d'esprit'. Ecrits, supra note 2 at 156-57.

18
O. Glossner, 'Sociological Aspects of International Commercial Arbitration' in J.C. Schultsz & A.J. van den Berg, eds., The Art of Arbitration: Essays on International Arbitration (Kluwer Law & Taxation, 1982) 143.

19
(1996) 7:1 ICC ICArb. Bull. 32.

20
T. Clay, supra note 3 at 239 and the references cited in the footnotes.

21
Ibid. at 244.

22
Cass. civ. 3e, 11 June 1987, D.1988.527. The question has been directly addressed by the European Commission of Human Rights, which made it clear that nothing less than total objective independence could be accepted of arbitrators. (Rapport Comm. Eur. D.H., 12 December, 1983. Vol. 38. p.18).

23
T. Clay, supra note 3 at 279.

24
M.L. Smith, 'Impartiality of the Party-Appointed Arbitrator' (1990) 6:4 Arbitration International 320 at 326.

25
J-F Kriegk, 'L'impartialité, contrepartie exigeante de l'indépendance', Petites Affiches, 1999, no. 137, p. 5; see also T. Clay, supra note 3 at 274 and the references cited in footnote 5.

26
P. Bellet in case comment on Paris 28 June 1991, Rev. arb. 1992.568 at 578.

27
M. Henry, supra note 11 at para. 470.

28
Applied Industrial v. Ovalar Makine, Case No. 06-3297 (9 July 2007).

29
T. Clay, supra note 3 at 277.

30
Rex v. Sussex Justices (Ex parte McCarthy), [1924] 1 K.B. 256.

31
T. Clay, supra note 3 at 289

32
M. Bedjaoui, supra note 16 at 9-10.

33
W.L. Craig, W.W. Park & J. Paulsson, International Chamber of Commerce Arbitration, 2d ed. (Oceana, 1990) at 240.

34
M. Reisman, W.L. Craig, W.W. Park & J. Paulsson, supra note 14 at.559.

35
M. Hunter, (1987) Arbitration at 222-23.

36
T. Clay, supra note 3 at 301, note 6.

37
W.L.Craig, W.W. Park & J. Paulsson, supra note 33 at 212.

38
J. Werner, 'Dissenting Opinions: Beyond Fears' (1992) 9:4 J. Int. Arb. 24.

39
Interview with Torbjörn Spector of the Stockholm Chamber of Commerce in Stockholm (21 March 1989), cited in J.C. Chiu, 'Consolidation of Arbitral Proceeding and International Arbitration' (1990) 7:2 J. Int. Arb. 53 at 58-59.

40
M. Hunter & J. Paulsson, 'A Code of Ethics for Arbitrators in International Commercial Arbitration?' (1985) 13 Arbitration 153.

41
W.L. Craig, W.W. Park & J. Paulsson, supra note 33, pt III.

42
J. Werner, 'Editorial. The Independence of Party-Appointed Arbitrators: For a Rule of Reason' (1990) 7:2 J. Int. Arb. 5.

43
M. Blessing, 'The New International Arbitration Law in Switzerland' (1988) 5:2 J. Int. Arb. 9 at 39.

44
Russell on Arbitration, 20th ed. by A. Walton QC & M. Vitoria (Stevens & Sons, 1982) at 233.

45
J. G. Wetter, The International Arbitral Process, vol. II (Oceana, 1979) at 364.

46
'It would amount to wishful thinking to expect an equally balanced degree of impartiality (or independence) on both sides of the arbitral tribunal, and yet, numerous and impressive examples have shown that an arbitral tribunal (or a presiding arbitrator) can cope with such situation.' M. Blessing, 'The New International Arbitration Law in Switzerland: A Significant Step towards Liberalism' (1988) 5:2 J. Int. Arb. 9 at 39.

47
Tribunal fédéral, 1re Cour. civ. 18 August 1992, ATF 118.II.359.

48
French Court of Cassation, civ. 1re, 20 June 2006, Societe Prodim v. Pierre Nigioni (Annot. J. Ortscheidt): president of the commercial court justified in asking the party about the number of cases in which it appointed the same person during the last ten years, as part of ensuring that the parties had confidence in the arbitral tribunal, Rev. arb. 2007.463 at 466-467.

49
M. Tupman, 'Challenge and Disqualification of Arbitrators in International Commercial Arbitration' (1989) 38 I. C. L. Q. 26 at 49.

50
See W.L. Craig, W.W. Park & J. Paulsson, supra note 33 at 209.

51
T. Clay, supra note 3 at 307.

52
G. Aksen, 'The Constitution of Arbitral Tribunals: Proper Bounds for Communications between Counsel and Party Arbitrators', 14th Colloquium ICC-ICSID-AAA, November 1997 [unpublished].

53
G.A. Alvarez, 'The Challenge of Arbitrators' (1990) 6 Arbitration International 203 at 217.

54
M.S. Donahey, 'The Independence and Neutrality of Arbitrators'(1992) 9:4 J. Int. Arb. 31 at 36ff.

55
Applied Industrial v. Ovalar Makine, Case No. 06-3297 (9 July 2007). The chairman of the arbitral tribunal disclosed only part of the business relationship that tied his company to the party in whose favour a partial award was rendered.

56
Ph. Fouchard, Ecrits, supra note 2 at 161, concerning the extension of disclosure to cover the existence of a 'préjugé défavorable'. In a very recent decision, the Higher Court of Munich clarified the effect of a troubled relation with one of the parties' counsel on the arbitrators' independence. The court held that an arbitrator will not be disqualified on grounds of bias, even when the arbitrator has a poor relationship with the party's counsel, unless the animosity between the arbitrator and the counsel directly affects the party, and as long as the animosity has been duly declared. D v. E, 10 January 2007, Institute for Transnational Arbitration (ITA) Monthly Report, November 2007, vol. V, issue 11.

57
A. Hirsch, 'Les arbitres peuvent-ils connaitre les avocats des parties ? Critique d'une nouvelle notion de l'indépendance des arbitres dans les arbitrages CCI' [1990] ASA Bulletin 7.

58
J. Werner, 'The Independence of Arbitrators in Totalitarian States: Tackling the Tough Issues' (1997) 14:1 J. Int. Arb. 141.

59
Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968).

60
Merit Ins. Co. v. Leatherby Ins. Co., 714 F. 2d 673 (1983).

61
M.S. Donahey, supra note 54 at 38.

62
M. Hunter & J. Paulsson, supra note 40.

63
See M.S. Donahey, supra note 54 at 42.

64
Wall Street Journal (14 February 1990) 1.

65
The interim award was rendered on 26 September 1999 and the final award on 16 October 1999.

66
Extract from the partial award, (2000) XXV Y.B. Comm. Arb. 109 at 151.

67
Y. Dezalay & B.G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, Chicago Series in Law and Society (Chicago: University of Chicago Press, 1996).

68
J. Werner, supra note 58.

69
M. Platte, 'An Arbitrator's Duty to Render Enforceable Awards' (2003) 20:3 J. Int. Arb. 307 at 313.

70
L. Gouiffes, 'L'arbitrage international propose-t-il un modèle original de justice ?' in Recherche sur l'arbitrage en droit international et comparé : Mémoires pour le diplôme d'études approfondies de droit international privé et du commerce présentés et soutenus publiquement (L.G.D.J., 1997) 55.

71
S. Lazareff, supra note 12 at 478.