Introduction

Judges and arbitrators exercise very similar functions, at least when it comes to deciding the cases submitted to them. 1 This similarity causes them to be likened to each other as far as the guarantees of independence and impartiality required of them in the fulfilment of their judicial duties are concerned. 2 Furthermore, the legal grounds on which judges may be challenged have often been extended (non-exhaustively) to arbitrators, so as to ensure protection of the fundamental right to a fair trial. 3 The contractual and voluntary basis that characterizes arbitration and distinguishes it from State justice has an impact on the appointment of arbitrators and the way in which they carry out their functions. 4 This article will show that, although there is some overlap between the independence of the judiciary and that of arbitrators, there are differences in the way independence is apprehended in each case.

I) Institutional independence: State justice and arbitration compared

Leading human rights instruments-the Universal Declaration of Human Rights of 10 December 1948, 5 the International Covenant on Civil and Political Rights of 16 December 19666 and the European Convention on Human Rights of 4 November[Page77:] 19507-make the independence and impartiality of judges an essential requirement for a fair trial. The UN Basic Principles on the Independence of the Judiciary mention that independence shall be guaranteed by the State and enshrined in a Constitution or law, and add that all governmental and other institutions have a duty to respect it. 8 At national level, at least in countries belonging to the French legal tradition, the independence of the judiciary is often enshrined or affirmed in constitutional or statutory instruments. 9 The independence of the courts can flourish fully only when part of a structure that is independent of other authorities. Hence, when judges perform the duties of their office within a hierarchical system answerable to a central government authority responsible for justice, as in the Napoleonic tradition, they can discharge their judicial functions convincingly only up to a certain point. One cannot, therefore, ignore the links between the judiciary and the other branches of public authority. Depending on the extent to which the executive is involved, the appointment, training, discipline, career, remuneration and immunity of judges-all of which contribute to their independence-may be affected. The place of State justice within the system of public authorities is thus highly important in evaluating the independence of the judiciary.

The independence of the judiciary refers, in particular, to an absence of external pressures or allegiance to other authorities. 10 In the course of the preparatory work for the Dakar Conference of the Association des Hautes Juridictions de Cassation des pays ayant en partage l'usage du Français ('AHJUCAF'), in November 2007, the report from the Court of Cassation of Egypt stressed that judges 'should free themselves from restrictions, powers, influences or threats, and direct or indirect interference. At the same time, they should have human qualities such as fair-mindedness, courage, objectivity, tolerance and knowledge. They should also be independent of their superiors and any other authority. 11 This view underlines the fact that judges must remain independent of public authorities and any other influences, such as the power of money, if only to shield the judiciary from corruption. On this last point, the independence of the judiciary implies first and foremost that sufficient means be granted and that judges be remunerated in keeping with their level of responsibility and the dignity of their office. 12 There is a close relationship between the extent of autonomy that the judicial system enjoys in preparing or managing the budget made available to it and the degree of independence of the judiciary. As far as supreme courts are concerned, for example, their role in relation to finance can range from negotiating[Page78:] the draft budget with the Ministry of Justice-as the government is responsible for presenting to parliament the finance bill that includes the budget for the entire judicial system, of which a supreme court is but one part-to complete autonomy with the judiciary negotiating directly with parliament. 13 While there is clearly no real budgetary independence where the Ministry of Justice controls court financing, 14 it must be recognized that direct dealings between the judiciary and parliament can be problematic if they are not based on a well-established tradition of separation of powers. It is always possible for the legislative authority to respond to the judiciary through budget allocations, for popularity is not a priority for the judiciary, although public confidence is, of course, a prerequisite for its effectiveness. 15 The European Court of Human Rights has, moreover, pointed out that courts in a democratic society have a duty to inspire confidence in the citizens who are subject to their jurisdiction. 16 ECHR case law underlines the importance of appearance where independence is concerned. 17 This reflects the approach taken by English case law in affirming that 'justice should not only be done, but should manifestly and undoubtedly be seen to be done'. 18

While the obligatory nature of State justice requires that judges be seen by the public to be independent, a system of justice like arbitration, to which the parties submit voluntarily, must also command the confidence of the parties in order to work. Being, as we know, of contractual origin, arbitration falls outside the State court system. However, this does not mean that institutional considerations have no place in arbitration. The independence of arbitration institutions within the structures to which they belong is of particular interest in this regard. The Swiss Federal Tribunal spelt out the requirements for the independence of an arbitration institution in a case relating to the Statute of the Court of Arbitration for Sport ('CAS'). In its decision of 15 March 1993 in Gundel v. Fédération équestre internationale, the Federal Tribunal expressed the wish that the CAS be more independent of the International Olympic Committee ('IOC'), particularly if the IOC were itself involved in the arbitration. At the time, the IOC had responsibility over the Statutes of the CAS, provided its funding and played an important part in compiling the list of arbitrators. 19 The administration and financing of the CAS are now in the hands of an autonomous foundation, the International Court of Arbitration for Sport ('ICAS'). 20 The influence of the IOC in choosing CAS arbitrators has also decreased markedly for it now proposes only a fifth of the arbitrators appointed to the CAS list. In its judgment of 27 May 2003 in Lazutina, the Federal Tribunal held that these structural changes made the CAS sufficiently independent of the IOC and any parties able to call upon its services. At the very most, the Federal Tribunal expressed a[Page79:] wish that, to increase the clarity and transparency of the system, the way in which the arbitrators are appointed should be mentioned so that, for example, an athlete does not think he is choosing an arbitrator outside the IOC when that arbitrator is registered on the CAS list by virtue of the IOC. 21

Although arbitration accounts for a very large part of ICC's resources, the International Court of Arbitration is merely a department of ICC, with no financial or budgetary independence. However, this situation of mere internal autonomy has not given rise to any particular concerns. There was, of course, the curious Cubic case, where it was claimed that the independence of the members of the International Court of Arbitration meant that there was no control over the Court's activities. 22 In any event, there is no known example of the governing bodies of ICC, whose members are in fact companies, non-profit-making organizations and employers' associations (that may or may not constitute national committees), trying to exert pressure on the Secretariat staff or members of the Court. On the contrary, the fact that the International Court of Arbitration has no legal personality provides it with welcome protection from external influences and enables it to preserve the confidence of parties from all backgrounds that have recourse to its services. 23 Without ICC's structures and the security of its statutes, the International Court of Arbitration might well be unable to stand up alone against States, whose cases it often handles, or the representatives that States might wish to appoint within its ranks. It is true that there have been ambassadors and ministers among the Court's members but their presence has not influenced the Court's discussions and decisions, at least by the mere fact of their being public officials. 24 Confidence in arbitration institutions may also be a source of concern if there are links between the an institution's officers and the parties. The influence of a lawyer who acts for a party while at the same time playing a role in running the arbitration centre may give rise to suspicion, as seen in Métal Profil v. Intercraft, where the validity of the consent given to an arbitration clause referring to ICC was called into question, as the counsel for the opposing side was a Vice-Chairman of the International Court of Arbitration. 25 Although the Paris Court of Appeal, whose decision was appealed to the Court of Cassation, ruled that there had been no error or fraud, as the ICC International Court of Arbitration operated in such as way as to ensure that it was independent and impartial, this case led ICC at the time to include in the Internal Rules of the International Court of Arbitration a provision expressly requiring Court members to abstain when involved in a case submitted to the Court. 26[Page80:]

The activities of an arbitration institution under whose auspices an arbitrator decides a case may, notwithstanding the strictly administrative nature of those activities, 27 raise issues in relation to the arbitrator's independence if the institution encroaches upon the arbitral tribunal's decision-making powers. In such a context, possible threats to independence would call into play the contractual ties between the arbitrator and the arbitration institution. 28 The discussions on the structures of ICC in the Cubic case provide an excellent basis for reflection in this regard. Shortly before the award was rendered in Cubic, the eponymous Californian company attempted to sever its links with ICC, which it considered liable for the inadequate organization of the arbitration. Inter alia, Cubic criticized the ICC Rules which, in conferring upon the International Court of Arbitration the task of scrutinizing draft awards, created confusion between the jurisdictional role of the arbitral tribunal and the administrative role of the institution. Cubic further decried the absence of any binding obligation on the Court in the monitoring of arbitration proceedings. Dismissing Cubic's claims, the Paris Court of Appeal and the Court of Cassation held that ICC, through its International Court of Arbitration, had a duty to provide a structure that would allow the arbitration to be conducted efficiently and that the submission of the draft award contributed to that very purpose by allowing advice to be given to arbitrators on the drafting of their awards.

The case law of the European Court of Human Rights has highlighted the notion of objective impartiality of judges, which is part of independence and raises issues relating to the organization of the judicial system. 29 Adequate guarantees are needed, which here concern the separation of functions rather than the separation of powers. An example is the holding of functions relating both to the merits of a case and the granting of interim relief. In keeping with the UNCITRAL Model Law on International Commercial Arbitration, most modern laws allow arbitrators to issue interim and provisional orders. 30 The granting of such powers to arbitrators would, however, be a short-lived triumph if they were to be debarred from continuing to hear a case as a result of any interim ruling which they might have made. A distinction clearly needs to be made, depending on the type of measure ordered. Any measure involving the adoption of a position on the merits of a case, such as an order to a party to make a payment to another party, would lead to disqualification by the yardstick of objective impartiality, irrespective of the judge's personal conduct. 31 This reasoning no doubt needs to be further refined so as to avoid a systematic incompatibility between the functions of investigation and decision-making, since the judge who has investigated a case is often best placed to put forward solutions, due to his familiarity with the[Page81:] dispute, so long as he has not expressed an opinion on the merits. 32 In Philipp Brothers , which was decided in the late 1980s by the presiding judge of the Paris Tribunal de Grande Instance,33 the number of arbitrators on a closed list was too small to allow a case already heard at a first level to be decided at a second level with 'sufficient independence of mind and the necessary impartiality', just as a judge in a State court cannot hear the same case at first instance and on appeal.

II) Personal independence: the selection and conduct of judges and arbitrators compared

The appointment of judges and arbitrators should be protected from outside interference and influence, so that they can command the confidence called for by their office. It has, however, rightly been remarked that a certain degree of involvement in the appointment process on the part of the executive branch of government is desirable, at least for the highest judicial positions, where one can hardly imagine office-holders not having the confidence of the public authorities. 34 The appointment of judges raises questions concerning, first of all, their recruitment and how and to what extent the selection of candidates and the choices made are able to reflect the make-up of society. 35 The appointment procedure should be transparent to ensure the credibility of the selection process. The binding nature of an opinion on a particular appointment given by a council of the judiciary to the person making the appointment, be it the Minister for Justice or the Head of State, makes it all the more imperative to understand how the candidate has been chosen, especially when the composition of the council has to reflect a balance that is not always achieved. Public hearings of applicants for judicial positions are a further guarantee of the quality of the selection process in that they ensure a degree of control over the choice made, particularly when the judicial council is composed predominantly of union members.

Unlike State judges, arbitrators are entitled to judge a dispute only to the extent that they are empowered to do so by the parties. The parties' initial free choice of arbitrators is a principle deeply rooted in arbitration law; and public policy prevents any breach of equality between the parties in the constitution of the arbitration tribunal, as held by the French Court of Cassation in the Dutco case. 36 As a procedure based on the parties' will, arbitration brings a personal colour to the arbitrator's role, which is characterized above all by a bond of trust between the parties that must be maintained throughout the proceedings. 37 This produces a number of consequences. Arbitration practice clearly shows that when it comes to choosing arbitrators, the parties regularly opt for people[Page82:] who have or have had dealings with the parties or their advisers and that it cannot really be otherwise. In the Lazutina case referred to above, the Swiss Federal Tribunal described the situation in the following terms: 'Encounters are commonplace within the limited confines of international arbitration; as pointed out by the IOC, it is not unusual for the same person to act on one occasion as arbitrator in a given case, and on a subsequent occasion as adviser to one of the parties in another case, pleading before his co-arbitrator in the earlier case. Such contacts will necessarily be all the more frequent where arbitrators are required to be on a closed list and to have legal training and recognized skill in the field of sport, as at the CAS'. 38 The repeated appointment of an arbitrator by the same party poses yet further problems. 39 In specialized arbitrations, for example, where a large number of cases are decided by a limited body of specialist arbitrators, there is necessarily a rapid turnaround of arbitrators on the cases. The essential question is whether a repeated appointment is objectively justified or whether it is a sign of dependence.

In the context of arbitration, which is a voluntary process instituted for a limited period of time, the personal independence of an arbitrator is a central concern, whereas in a State and institutional judicial system what is foremost is the judge's integrity and professional record. It is true that in both cases personal independence is measured in relation to the parties and, by extension, their counsel, 40 who generally choose arbitrators on behalf of their clients. Although not always the case, independence is normally a guarantee of impartiality-that is to say complete receptivity to the parties' arguments. Indeed, independence strongly implies that until an arbitrator or a judge has studied a case, he will not decide for or against any given party for the very reason that he has no personal preferences, in other words he will also be impartial. 41 Irrespective of the position he holds within the arbitral tribunal, an arbitrator has a contractual relationship with each of the parties, to whom he owes objectivity and intellectual honesty. 42 The English Arbitration Act refers merely to impartiality, for, as explained by V.V. Veeder, in the tradition of commodity trade or reinsurance arbitrations in England, or that of the arbitrator-advocate, where the two party-appointed arbitrators had to find a solution together and, if unable to see eye-to-eye, would become the parties' representatives vis-à-vis the umpire, 43 the arbitrators, themselves often businessmen, were seldom independent. Moreover, In any event, if, as we see happen, an arbitrator lacks independence, he should at least remain impartial. In a more international context where the Swiss Private International Law Act or the ICC Rules of Arbitration are likely to be applicable, their very pragmatic reference only to the arbitrator's independence, which does not of course imply the exclusion of impartiality, is acknowledgement of the fact that an arbitrator who is not independent is very unlikely to be impartial. It is impartiality alone that really matters. 44[Page83:]

According to French case law, the independence of an arbitrator is an essential part of his judicial function. 45 Extending to arbitrators the presumption of independence that is found in the case law of the European Court of Human Rights, 46 the Paris Court of Appeal has held that as soon as an arbitrator is appointed he acquires the status of a judge, which necessarily excludes any subordination to the parties. 47 This position expresses great confidence in arbitration, particularly when one thinks that in the civil law tradition a career as judge generally rules out any contact with clients and with a Bar where the judge has never practised. This very liberal approach means that the presumption of independence can only be rebutted if it is first shown that the arbitrator's situation vis-à-vis the parties has influenced his judgment and then that there was a definite risk of bias arising from the arbitrator's judgment. The Court of Cassation subsequently replaced proof of a definite risk of bias with the less stringent requirement of proving that a reasonable doubt exists in the minds of the parties. 48 It is not a question of knowing whether an arbitrator is independent in the absolute, but whether he would be considered so by a reasonable observer, which expression also includes a judge who is required to rule on a case. An outside perspective is inevitable, particularly as the link with independence is generally necessary to guarantee impartiality, which is an essentially subjective notion. There is no reason, at least in theory, to distinguish between the chairman of an arbitral and the co-arbitrators, for the appointment of each is a risk freely accepted by the parties on account of their personal and professional knowledge and their experience which, as we have seen, is precisely why they exercise their choice. A former member of the International Court of Arbitration once reported having sought an arbitrator with the maximum predisposition towards his client and the minimum appearance of bias. 49

A choice made in such circumstances will only be valid if the parties have accepted the situation resulting from such connections, which presupposes an awareness of such conflicts of interest. The International Bar Association Guidelines on Conflicts of Interest in International Arbitration aim to facilitate the management of such situations by arbitrators and parties. French case law calls for an arbitrator to explain anything about his situation that is not common knowledge and in light of the impact that situation can reasonably be expected to have in the minds of the parties on his judgement. 50 In any case, there should never be any automatic disqualification or absolution for incomplete information, where the undisclosed facts do not justify a finding of partiality or subordination on the part of the arbitrator. 51 A judge can always request additional information on the arbitrator's situation, as any complaint that an arbitration tribunal was incorrectly constituted will, if admissible, be examined separately, when the award is examined. 52 Lastly, parties certainly have the right to challenge arbitrators but are under no obligation to do so. If they refrain from doing so, it will thereafter be impossible for[Page84:] them to question the arbitrator's independence. 53 It is, moreover, possible to waive all grounds for objecting to an arbitrator simply by not raising them. As far as the European Court of Human Rights is concerned, the waiver of a right guaranteed under the Convention, such as those associated with a fair trial, will not be valid unless asserted unequivocally. 54 The Court has thus held that Article 6 of the Convention was not violated by the dismissal of an appeal against an award rendered by a tribunal that included, as co-arbitrator, the lawyer who represented a third party in negotiations for terminating a joint venture, which was indirectly owned by the applicants through a company, the control of which was the subject of the arbitration. The Court held that the petitioners, who were aware of these facts, had knowingly waived their right to an independent arbitrator and that their decision had been accompanied by the guarantees afforded through representation by counsel. 55

In arbitration, the transparency of the appointment process is also indispensable to the parties as a means of checking the reality of an arbitrator's situation vis-à-vis the parties or the dispute, so as to ensure the validity of any decision to forego an arbitrator's independence. The obligation to disclose, pioneered by ICC through the arbitrator's statement of independence, has now become a characteristic feature of arbitration law and is widely accepted in all modern arbitration legislation and practice. 56 It was in the late 1980s57 that the French courts identified this obligation, which extends at the very least from the appointment of an arbitrator to the end of his functions, and the obligation has never been questioned since. This obligation to disclose eases the burden of proof on parties, who are responsible for proving breaches of independence. It also clears an arbitrator's situation, for any subsequent attempt by a party to call the arbitrator into question for facts of which it was aware but to which it did not react will be inadmissible. The Paris Court of Appeal has specified that the obligation lies on the arbitrator alone, for it would be weakened if divided between the arbitrator and the parties. 58 This solution does not exonerate a party that proposes an arbitrator without revealing his connections from liability towards the other party for wrongful performance of the arbitration agreement, which entails a general obligation to cooperate in good faith in the organization and conduct of the arbitration.

Independence carries with it, as we have seen, a presumption of impartiality, which is also dependent on the conduct adopted in a case. Professor Fadlallah has pointed out that 'a system whereby each of the parties chooses an arbitrator is hardly likely to result in a court which is totally indifferent to the parties and their concerns'. 59 Warning against generalizations, Pierre Bellet, former President of the French Court of Cassation, wrote that the office of an arbitrator should not be purely and simply equated with that of a judge, for the independence of a party's arbitrator is seldom equivalent to that of a judge and it would be hypocritical to think otherwise. 60 Another writer has stated that 'the idealistic concept of the status of an arbitrator chosen by one party alone is an[Page85:] ideological façade'. 61 The arbitrator is not there to promote the interests of the party that chose him, but his presence within the arbitral tribunal could be seen as a guarantee that the arguments of that party will be carefully examined by the other members of the tribunal, that those other members have understood the issues at stake and the facts of the case for the party in question, and that the consequences of the decision have been carefully weighed up. 62 This is a far cry from the collegiality of State courts, if only because judges are disinterested and not beholden to the parties, or to their advisers, for their appointment or the prospect of sitting on subsequent cases. It would be surprising indeed if a judge were to take up the arguments of one or other of the parties, insisting on the merits and strengths of those arguments and checking that they have been properly examined and understood by the other members of the bench (not that we would wish to suggest that the arguments of the parties are treated with scorn by State judges). Deliberations are no less real in arbitration, so long as an arbitrator retains his influence by remaining present and credible to his colleagues. They are simply conducted differently and in a different spirit from deliberations in State courts. Although, as we have seen, it may be at the price of a certain hypocrisy, the fiction of independence as understood in judicial circles is maintained when it comes to choosing arbitrators, albeit superficially, giving way to greater realism when a solution has to be found. 63 It has been said that an arbitrator is impartial 'in his own way', 64 which, without implying a negative judgment, is different from that of judges.

A Belgian writer has decried the existence of 'a judge's fundamental right to intellectual virginity, which he should keep intact until the day he renders his decision'. 65 This remark is also valid in arbitration, where it has been rightly pointed out that deliberations begin at the very outset of the proceedings. 66 It has to be admitted that there is a difference between expressing an opinion that casts serious doubt on the possibility of adopting a different point of view in an ongoing case and engaging in an exchange with the parties during which the judge or arbitrator can examine the various solutions available to him. It is far more dangerous for a person being judged not to know what his judge thinks, which is frequently the case where there is no real distinction between the judiciary and other public service departments due to the anonymity of judges. The French courts consider an arbitrator who has already rendered a decision on the merits in previous or parallel proceedings to be guilty of prejudice, unless the parties in parallel proceedings have consented to having the same arbitrator in both proceedings. 67 The connection between the cases calls rather for independence on the part of the arbitrator, at least until such time as a decision is rendered in the other arbitration. In successive proceedings, however, the fact of already having ruled in one case on issues similar to those arising in a subsequent case is not, according to the Paris Court of Appeal, a ground for challenging the arbitrator. 68[Page86:]Such a solution must be approved if we are not to condemn the use of the most experienced arbitrators, who, in all logic, will have previously ruled on similar legal issues.

Oppetit observed that: 'In the absolute, remedies would lie either in arbitration before a single judge, or in generalizing the appointment of arbitrators by authorities unconnected with the parties: the adoption of such heroic measures is still doubtless a long way off . . . hence the current preference is to insist on the role of ethics'. 69 The interest in codes of ethics for arbitrators stems from the feeling that arbitral tribunals were increasingly being challenged. The ethical obligations of judges derive from provisions of praetorian origin and from statutory provisions that are specific to judges and from other provisions applicable to civil servants in general. Some European countries-although not the majority-have adopted codes of ethics for judges that closely follow the Bangalore Principles. 70 The question arises as to the legitimacy of the authority that draws up the 'code', be it an organization of business lawyers71 or a professional association of judges. Public authorities are in theory excluded from such an exercise, which must demonstrate sufficient maturity on the part of the judicial bodies to acquire inherent legitimacy through the adoption of self-regulating standards. 72 These codes are above all guidelines and violations do not automatically amount to a disciplinary offence, as codes of ethics have a pedagogical and preventive purpose. 73 Similarly, in arbitration, failure to abide by any of these rules does not automatically lead to a challenge or an appeal against the award. The exhaustiveness of such ethical codes raises problems caused by the creation of guidelines that are too detailed, restrictive and rigid, and lack universality. 74 Their effectiveness is questionable. For example, situations said to require disclosure by an arbitrator may lead to the disqualification of a considerable number of arbitrators, as has pointed out in connection with the IBA Guidelines. 75

The public at large has intruded into the field of judicial discipline, as the secrecy which traditionally surrounded disciplinary matters is no longer acceptable. The handling of complaints against judges should be sufficiently credible to win the public's confidence. 76 Procedural transparency is necessary to remove any suspicion of [Page87:]corporatist protection and to allow rights of defence to be exercised effectively. 77 The need for transparency is also seen in challenge procedures, which are becoming increasingly akin to lawsuits, requiring rights to be respected and standards of efficiency to be met. 78 Independence stops errors being treated as disciplinary matters. 79 Errors do not necessarily imply any fault on the part of the judge, and the purpose of appeal procedures is precisely to rectify flawed decisions. Errors in judicial decisions have led public opinion to call for disciplinary action where serious errors of judgment have occurred, while the rules of civil liability applying to judges in France, for example, which do not permit direct action against the judge by the victim, reinforces the impression of a judge's impunity and non-accountability. 80 There is no specific sanction provided for errors made by arbitrators in their awards, for the purpose of customary procedures against awards in international cases is rather to set aside, not amend a decision. The Paris Tribunal de Grande Instance has ruled that an arbitrator cannot be held liable in relation to his judicial function unless there is evidence of fraud, deceit or gross misconduct. 81 The case in question concerned an unsuccessful application by a party for the correction of an arbitral award containing a clerical error. The arbitrators considered that the application was in fact aimed at revising the reasoning given. When an arbitrator commits an error that leads to the setting aside of an award, the aggrieved party is entitled to compensation. 82 This is not to say that an arbitrator can only be held liable where there are grounds for setting aside an award, for instance if he has failed to fulfil his obligation to act promptly by taking longer than is reasonable to deliver his decision. The requirement that a State provide compensation in the event of a miscarriage of justice caused by serious misconduct on the part of a judge clearly does not exist in arbitration, for arbitrators are not entrusted with a public function. 83 Only a voluntary insurance scheme, or one arranged by an arbitration centre for arbitrators acting under its aegis, can offer a measure of security, provided, of course, that there is no deliberate fault or fraudulent intent.

Conclusion

Adapting independence and impartiality to the practical needs of arbitration is likely to give parties confidence in this method of dispute resolution. Whilst the contractual aspect of appointing arbitrators leads to tensions between the two poles of arbitration as[Page88:] a contractual and jurisdictional procedure, 84 the freedom to organize arbitration outside State structures, which can be assumed to respect civil liberties, is conducive to the independence of arbitration. To curb excesses, of which there is always a risk, arbitration practice and case law have developed corrective mechanisms like the obligation to disclose. State justice, on the other hand, which can be described as regulated, is enwrapped in statements and enactments, but has not always managed to secure full public confidence. 85 It has to be said that the doubts voiced all too often across the world over the independence and integrity of the State justice system cause parties to turn to arbitration. The quality of justice is in the balance and this is the challenge to which judicial systems in democratic societies must rise if they are to meet the expectations of users, for justice can no longer command respect by the use of force alone. 86[Page89:]

1
B. Oppetit, 'Justice étatique et justice arbitrale' in Etudes offertes à Pierre Bellet (Paris: Litec, 1991) 415

2
Swiss Federal Supreme Court, 15 October 2001, (2002) 20 ASA Bulletin 321.

3
For France, see Cass. civ. 1re, 28 April 1998, J.C.P. 1999.II.10102 (Annot. Pralus-Dupuy), Gaz. Pal. 1998.2.868 (Annot. G. Flécheux), Rev. trim. dr. civ. 1998.744 (Annot. R. Perrot). See also L. Dittrich, 'La procédure de récusation du juge en droit italien', B. Hess, 'L'impartialité du juge en droit allemand', G. Closset-Marechal, 'L'impartialité du juge : récusation et dessaisissement en droit belge' in J. van Compernolle & G. Tarzia, eds., L'impartialité du juge et de l'arbitre, Etude de droit comparé (Bruylant, 2006) 139, 157 and 179; H. van Houtte, 'Les critères de récusation de l'arbitre' in Les arbitres internationaux, Colloquium of 4 February 2005, Société de législation comparée, Centre français de droit comparé, Vol. 8 (2005) 95; G. Canivet, 'Les influences croisées entre les juridictions nationales et internationales : Eloge de la « bénévolance » des juges', Revue de science criminelle 2005.798.

4
B. Oppetit, Théorie de l'arbitrage (PUF, 1998).

5
'Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.' (Art. 10)

6
'In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.' (Art. 14)

7
'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.' (Art. 6)

8
Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

9
'Recueil des réponses au questionnaire sur l'indépendance de la justice', Second AHJUCAF Congress, Dakar, 7 & 8 November 2007, Cour de cassation du Sénégal/Organisation internationale de la francophonie, 2007, <www.ahjucaf.org/-L-independance-de-la-justice>.

10
In a judgment delivered on 29 July 2002 (No. 2A.484/2001), the Swiss Federal Tribunal held that 'in order to establish whether a court is independent for the purposes of Article 6(1) of the ECHR, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (judgments of the European Court of Human Rights Çiraklar v. Turkey (28 Oct. 1998) para. 38; Kadubec v. Slovakia (2 Sept. 1998), para. 56; Incal v. Turkey (9 June 1998) para. 65)'. See S. Guinchard, 'Indépendance et impartialité du juge, les principes de droit fondamental' in J. van Compernolle & G. Tarzia, eds., L'impartialité du juge et de l'arbitre, Etude de droit comparé supra note 3, 3.

11
'Question 5 : Is judicial independence defined in legislation and/or case law ? If so, how is it defined?' supra note 9 at 54.

12
'It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.' Basic Principles on the Independence of the Judiciary, supra note 8. See also the Council of Europe Committee of Ministers Recommendation No. R (94) 12 of 13 October 1994 on the independence, efficiency and role of judges ('Principle III - Proper working conditions').

13
L. Gardocki, 'Financing Activities of Supreme Courts in European States', Warsaw Colloquium of 12 June 2006, Network of the Presidents of the Supreme Judicial Courts of the European Union, <www.uepcsj.org>.

14
Ibid.

15
T. Melchior, Introductory Report, Warsaw Colloquium 12 June 2006, Network of the Presidents of the Supreme Judicial Courts of the European Union.

16
Belilos v. Switzerland (No. 10328/83) 29 April 1988; Rojas Morales v. Italy (No. 39676/98) 16 Nov. 2000.

17
Cases Piersack v. Belgium, 1 Oct. 1982; Bulut v. Austria, 22 Feb. 1996; Incal v. Turkey (41/1997/825/1031) 9 June 1998; Çiralkar v. Turkey (70/1997/854/1061) 28 Oct. 1998; Belilos v. Switzerland (No. 10328/83) 29 April 1988; Morel v. France, 6 June 2000; Rojas Morales v. Italy (No. 39676/98) 16 Nov. 2000. P. Martens, 'La tyrannie de l'apparence', Rev. trim. Droits de l'Homme 1996.640.

18
R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 KB 249.

19
Federal Tribunal, 15 March 1993, Gundel v. Fédération équestre internationale et Tribunal arbitral du sport, Digest of CAS Awards 1986-1998 (Staempfli, 1998) 545.

20
'With the aim of facilitating the resolution of disputes in the field of sport, an arbitration institution entitled the 'Court of Arbitration for Sport' (hereinafter the CAS) has been created, and . . . with the aim of ensuring the protection of the rights of the parties before the CAS and the absolute independence of this institution, the parties have decided by mutual agreement to create a Foundation for international sports-related arbitration called the 'International Council of Arbitration for Sport' . . . under the aegis of which the CAS will henceforth be placed.' (Preamble to the Paris Agreement of 22 June 1994 concerning the constitution of the International Council of Arbitration for Sport)

21
'In competitive sport, especially the Olympic Games, it is indispensable, both for the athletes and for the smooth conduct of the competitions, that disputes be solved quickly, simply, flexibly and inexpensively by specialists with knowledge of both law and sport. . . . The system of a list of arbitrators applied by the CAS helps towards this end. Through the establishment of ad hoc Divisions, in particular, the parties concerned are able to obtain a judicial decision quickly from informed individuals with legal training and acknowledged expertise in the field of sport, while at the same time protecting their right to a trial.' Federal Tribunal, 27 May 2003, Lazutina v. CIO and FIS, Digest of CAS Awards, 2001-2003 (Kluwer Law International). See also A. Plantey, 'Quelques observations sur l'arbitrage sportif international. A propos d'un récent arrêt du Tribunal fédéral suisse' J.D.I. 2003.1085. See A. Rigozzi, L'arbitrage international en matière de sport (Bruylant/LGDJ/Helbing & Lichtenhahn, 2005) at para. 529ff.

22
Paris Court of Appeal, 15 Sept. 1998, Rev. arb. 1999.103 (Annot. P. Lalive), J.D.I. 1999.162 (Annot. E. Loquin); Cass. civ. 1re, 20 Feb. 2001, Rev. arb. 2001.511 (Annot. Th. Clay), Rev. cri. dr. internat. privé 2002.124 (Annot. Ch. Seraglini), M-L Niboyet, Gaz. Pal. Cahiers de l'arbitrage, 2002.35.

23
'2006 Statistical Report' (2007) 18:1 ICC ICArb. Bull. 5.

24
The composition of the International Court of Arbitration is from time to time published in the ICC International Court of Arbitration Bulletin.

25
Cass. civ. 2e, 31 March 1978, Rev. arb. 1979.457 (Annot. Ph. Fouchard).

26
Now Article 2 of the Internal Rules.

27
Paris Court of Appeal, 15 Jan. 1985, Opinter, Rev. arb. 1986.87 (Annot. E. Mezger); Trib. gr. inst. Paris, 28 March 1984 and Paris Court of Appeal, 15 May 1985, Raffineries d'Homs et de Banias, Rev. arb. 1985.141, Gaz. Pal. 1985.580 (Annot. Dupichot), J.C.P.II.20755 (Annot. P. Level.).

28
Ph. Fouchard, 'Relationships between the Arbitrator and the Parties and the Arbitral Institution' in The Status of the Arbitrator, Special Supplement, ICC ICArb. Bull. (ICC, 1995) 12; Th. Clay, L'arbitre (Dalloz, 2001) at 787ff.

29
J. van Compernolle, 'Avant-propos' in J. van Compernolle & G. Tarzia, eds., L'impartialité du juge et de l'arbitre, Etude de droit comparé, supra note 3, vii.

30
A. Reiner, 'Les mesures provisoires et conservatoires et l'arbitrage international, notamment l'arbitrage CCI', J.D.I. 1998.853.

31
Cass. Ass. plén., 6 Nov. 1998, Bord Na Mona, J.C.P. 1998.II.10128 (Rapp. Sargos), Gaz. Pal. 15 Dec. 1998 (Annot. Pansier & Bladier), D.1999.1 (Concl. J-F Burgelin), Rev. trim. droit civ.1999.183 & 193 (Annot. J. Normand & R. Perrot). M-A Frison-Roche, 'L'impartialité du juge', D.1999.53. N. Gérardin-Sellier, 'La composition des juridictions à l'épreuve de l'article 6-1 de la Convention européenne des droits de l'Homme', Rev. trim. Droits de l'Homme 2001.961. The ICC Rules for a Pre-Arbitral Referee Procedure do not, unless the parties agree otherwise, allow the referee to act as arbitrator in any subsequent proceedings between the parties to the pre-arbitral referee proceedings or in other proceedings in which there is an issue or question identical to any raised in the pre-arbitral referee proceedings.

32
ECHR, Morel v. France, supra note 17, concerning non-disqualification of an insolvency judge for having previously considered the viability of the recovery plan of the company in question, D. 2001.II.328, Chron. Ch. Boyet.

33
Trib . gr. inst. Paris, 28 Oct. 1988, 14 & 29 June 1989, Rev. arb. 1990.497.

34
Appointment of Judges at the Supreme Court, Remarks by Lord Phillips, Warsaw Colloquium, 12 June 2006, Network of Presidents of the Supreme Judicial Courts of the European Union, <www.uepcsj.org>.

35
Appointment of Judges at the Supreme Court, Remarks by Sir Brian Kerr, Warsaw Colloquium, 12 June 2006, Network of Presidents of the Supreme Judicial Courts of the European Union, <www.uepcsj.org>. See UN Basic Principles on the Independence of the Judiciary, supra note 8: 'Qualifications, selection and training.  10. . . . In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status . . .'

36
Cass. civ. 1re, 7 Jan. 1992, Dutco, Rev. arb. 1992.470 (Annot. P. Bellet). See Art. 10(2) of the ICC Rules of Arbitration.

37
Paris Court of Appeal, 12 Jan. 1999, Sté Milan Presse v. Sté Media Sud Communications, Rev. arb. 1999.381.

38
Federal Tribunal, 27 May 2003, supra note 21.

39
C. Reymond, 'Des connaissances personnelles de l'arbitre à son information privilégiée', Rev. arb. 1991.3.

40
See e.g.. Art. R 721-3 of the French Code de l'organisation judiciaire.

41
The UNCITRAL Model Law on International Commercial Arbitration and Arbitration Rules refer to impartiality and independence.

42
Ph. Fouchard, supra note 28.

43
V.V. Veeder, 'L'indépendance et l'impartialité de l'arbitre dans l'arbitrage international' in L. Cadiet, ed., Th. Clay, E. Jeuland, Médiation et arbitrage (Litec , 2005) 219, para. 308. See also M.J. Mustill & S.C. Boyd, Commercial Arbitration, 2d ed. (Butterworths, 1989) 258.

44
In ECHR cases, independence and impartiality are considered together as it is difficult to separate them. See Incal v. Turkey (41/1997/825/1031) 9 June 1998, Çiralkar v. Turkey (70/1997/854/1061) 28 Oct. 1998, Belilos v. Switzerland (n° 10328/83) 29 Apr. 1988 ; Morel v. France 6 June 2000. See also Th. Clay, 'L'indépendance et l'impartialité de l'arbitre et les règles du procès équitable' in J. van Compernolle & G. Tarzia, eds., L'impartialité du juge et de l'arbitre, Etude de droit comparé, supra note 3, 199.

45
Paris Court of Appeal, 2 June 1989, TAI et Gemanco, Rev. arb. 1991.87 (1st and 2d decisions).

46
ECHR, Le Compte, Van Leuven and De Meyere v. Belgium, (Series A No. 43) 23 June 1981.

47
Supra note 45.

48
Cass. civ. 1re, 16 Mar. 1999, Qatar v. Creighton, D. 1999.497 (Annot. P. Courbe), Rev. arb. 1999.308.

49
J.M.H. Hunter, Comments in The Arbitral Process and the Independence of Arbitrators, ICC Publication 472 (ICC, 1991) 25.

50
J-D Bredin, 'La révélation' in Etudes de procédure et d'arbitrage en l'honneur de J-F Poudret (Lausanne, 1999) 349.

51
Swiss Federal Tribunal, 15 Oct. 2001, (2002) 20 ASA Bulletin 321; Paris Court of Appeal, 12 Jan. 1996, Qatar v. Creighton, Rev. arb. 1996.428 (2d case) (Annot. Ph. Fouchard). See however Cass. civ 2e., 6 Dec. 2001, Fremarc v. ITM Entreprises, Rev. arb. 2003.1231 (1st case., 1st decision) (Annot. E. Gaillard).

52
Trib. gr. inst. Paris, 9 Dec. 1992 and Paris Court of Appeal, 30 June 1995, Annahold et Frydman v. L'Oréal, Rev. arb. 1996.483 (3d & 4th decisions).

53
Art. 11(2) of the ICC Rules of Arbitration.

54
Cases Neumeister v. Austria, 7 May 1974; Pfeifer et Plankel v. Austria (Series A No. 227), 25 Feb. 1992.

55
Case Suovaniemi v. Finland (31737/96), 23 Feb. 1999. See also Paris Court of Appeal, 18 Mar. 2004, Brudey Frères v. Emeraude Lines, Rev. arb. 2006.192 (Annot L. Perreau-Saussine).

56
Th. Clay, 'L'indépendance et l'impartialité de l'arbitre et les règles du procès équitable', supra note 44; L'arbitre, supra note 28 at. 318ff.

57
Paris Court of Appeal, 2 June 1989, Gemanco, supra note 45.

58
Paris Court of Appeal, 18 Dec. 2003, Annahold v. Degueldre, L'Oréal, Mayoux, RG No. 2002/09750 [unpublished].

59
I. Fadlallah, 'L'ordre public dans les sentences arbitrales' in Collected Courses, Hague Academy of International Law, vol. 249 (1994) 369 at 378-79.

60
P. Bellet, 'Des arbitres neutres et non neutres' in Etudes de droit international en l'honneur de Pierre Lalive (Basel: Helbing & Lichtenhahn, 1993) 399 at 407.

61
P. Schlosser, 'L'impartialité et l'indépendance en droit allemand' in J. van Compernolle & G. Tarzia, eds., L'impartialité du juge et de l'arbitre, Etude de droit comparé, supra note 3, 299.

62
A. S. Rau, 'Integrity in Private Judging' (1997) 38:2 South Texas Law Review 485.

63
See Paris Court of Appeal, 20 Nov. 1997, Sté 3R v. Sté Phénix Richelieu, Rev. arb. 1999.329, concerning a co-arbitrator who was also counsel in the same arbitration proceedings: '3R cannot complain about this situation, which it has itself created and accepted'.

64
Symposium of 20 November 1970 on the definition of an international arbitrator, organized by ICC and the French Arbitration Committee (Comité français de l'arbitrage), Rev. arb. 1970.217; see remarks of B. Goldman at 229, cited by A.S. Rau, supra note 62 at 508.

65
P. Martens, supra note 17.

66
A. Reiner, ICC Schiedsgerichtsbarkeit (Vienna: Manz, 1989)

67
Paris Court of Appeal, 2 June 1989, Gemanco, Rev. arb. 1991.87 (2d decision); Trib. gr. inst. Paris, 13 Jan. 1986, SETEC v. Sicca, Rev. arb. 1987.63 (Annot. P. Bellet).

68
Paris Court of Appeal, 14 Oct. 1993, Ben Nasser v. BNP and Crédit Lyonnais, Rev. arb. 1994.380 (Annot. P. Bellet).

69
B. Oppetit, Théorie de l'arbitrage, supra note 4 at 33.

70
The Bangalore Principles of Judicial Conduct, which were the outcome of a meeting in The Hague on 25-26 November 2002, identify six values (1-independence, 2-impartiality, 3-integrity, 4-propriety, 5-equality, 6-competence and diligence). See the synthesis report by G. Canivet, 'The Professional Discipline of Supreme Court Judges', Warsaw Colloquium, 12 June 2006, Network of the Presidents of the Supreme Judicial Courts of the European Union.

71
International Bar Association, Rules of Ethics for International Arbitrators, (1987) XII Y.B Comm. Arb. 199, <http://www.ibanet.org/publications/ IBA_Guides_Practical_Checklists_Precedents_and_Free_Materials.cfm>.

72
Opinion No. 3 of the Consultative Council of European Judges (CCJE) on the principles and rules governing judges' professional conduct, in particular ethics, incompatible behaviour and impartiality, Council of Europe, CCJE (2002).

73
G. Canivet & J. Joly-Hurard, La déontologie des magistrats (Dalloz, 2004).

74
G. Canivet & J. Joly-Hurard, supra note 71 at 67ff; P. Lalive, Conclusions in The Arbitral Process and the Independence of Arbitrators, ICC Publication 472 (ICC, 1991) 119. Opinon No. 3 of the CCJE therefore prefers general rules offering guidance for action.

75
V.V. Veeder, 'Is there any need for a Code of Ethics for International Commercial Arbitrators?' in Les arbitres internationaux, Colloquium of 4 February 2005, Société de législation comparée, Centre français de droit comparé, Vol. 8 (2005) 187. L. Trakman, 'The Impartiality and Independence of Arbitrators Reconsidered' [2007] Int. ALR 124.

76
T. Melchior, supra note 15.

77
G. Canivet & J. Joly-Hurard, supra note 71. The impartiality of the judging body becomes an issue when the supreme court, which often decides disciplinary cases, is required to judge one of its members (see T. Melchior, supra note 15). See Recommendation No. R (94) 12 on the independence, efficiency and role of judges, adopted by the Committee of Ministers of the Council of Europe on 13 October 1994: 'Principle VI - Failure to carry out responsibilities and disciplinary offences . . . 3. . . . The law should provide for appropriate procedures to ensure that judges in question are given at least all the due process requirements of the Convention, for instance that the case should be heard within a reasonable time and that they should have a right to answer any charges'; and the UN Basic Principles on the Independence of the Judiciary: 'Discipline, suspension and removal 17. A charge or complaint made against a judge in his/her professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge'.

78
Cass. civ. 2e, 10 June 1998, Gaz. Pal. 1998.2 Pan.311, D.1998.I.R.179 (the applicant must be informed of the date on which the challenge will be considered); see S. Guinchard, 'L'influence de la CEDH et de la jurisprudence de la Cour européenne des droits de l'homme sur la procédure civile' Gaz. Pal. 1999.1246.

79
M-A Frison-Roche, 'L'erreur du juge', Rev. trim. dr. civ. 2001.819; Th. Clay, L'arbitre, supra note 28 at 451ff.

80
G. Canivet, supra note 70; G. Canivet & J. Joly-Hurard, supra note 71 at 24ff.

81
Trib. gr. inst. Paris, 13 June 1990, Bompard, Rev. arb. 1996.476. See Th. Clay, 'De la responsabilité de l'arbitre' in E. Silva Romero & F. Mantilla Espinosa, eds., El Contrato de Arbitraje (Universidad del Rosario/Legis, 2005) 543.

82
Trib. gr. inst. Paris, 12 May 1993, Sté Raoul Duval v. V., Rev. arb. 1996.411 (2d decision); Paris Court of Appeal, 18 Dec. 2003, Annahold v. Degueldre, L'Oréal, Mayoux, RG No. 2002/09750 [unpublished].

83
Trib. gr. inst. Paris, 12 May 1993, Sté Raoul Duval v. V., Rev. arb. 1996.411(2d decision).

84
A.S. Rau, 'The Culture of American Arbitration and the Lessons of ADR' (2005) 40:3 Texas International Law Journal 449.

85
Second AHJUCAF Congress, supra note 9, Question 29: 'Does public opinion have the feeling, as far as one can tell (from surveys, opinions polls), that judges are independent?'

86
On such endeavours, see e.g. the EU Council and Commission Action Plan implementing The Hague Programme on strengthening freedom, security and justice in the European Union, O.J. No. C 198 (12 August 2005) 1.