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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Introduction
Several years ago, the ICC issued a publication that provided a preliminary overview of the practice at the International Court of Arbitration with respect to the appointment, confirmation, challenge and replacement of arbitrators.1 Since then, leading arbitration specialists have voiced their regret over the dearth of information available as to the ICC practice in this area.2 The aim of the present study, which is based on decisions handed down by the Court from the second half of 1988 to 1994 inclusive, is to compensate for this lack of information for the benefit of readers of the Bulletin and those interested in arbitration in general. Accordingly, this article aims to illustrate, and add to, as well as to clarify, what has been written on this subject to date.
The International Court of Arbitration decides on the appointment, confirmation, resignation, challenge and replacement of arbitrators. Article 2, paragraph 13, of the Rules states that decisions of the Court on any of these subjects "shall be final". This provision is clearly intended to eliminate the possibility of a party appealing the decision of the Court.3 Thus, if a party challenges a decision on grounds identical to one that has already been filed with and rejected by the Court, the Court will refuse to hear it. However, the Court might reconsider its decision if new evidence were to come to light.
Furthermore, Article 2, paragraph 13, of the Rules states that the reasons for the Court's decisions on these matters shall not be communicated to the parties.4 The reason for this provision is that there is no right of appeal. Nonetheless, the Court's decision must be based on relevant grounds. In the context of the Rules, all decisions rendered by the Court are administrative in character. As the functions of the Court with respect to any of the Court's decisions are limited to tasks of scrutiny and administration and do not extend to judicial acts, neither the parties nor the arbitrators appear before the Court.
Although the procedure and timing of decisions rendered by the Court regarding these issues are different, this article is not organized around such formal distinctions. Furthermore, the discussion of these issues is complicated by the fact that there is not one term that adequately describes the appointment and confirmation process.5[Page5:]
Therefore, in an effort to clarify the discussion of these various practices, this article is divided into two sections according to when in the proceeding any changes to the arbitral tribunal occurred.
I. The practice prior to confirmation or appointment
Before his confirmation or appointment to an arbitral tribunal can take effect, an individual nominated to act as an arbitrator in an ICC arbitration is required to give an undertaking concerning his independence. A prospective arbitrator has to inform the Secretary General of the Court in writing of "any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties".6 As the arbitrator must remain independent throughout the proceeding, he has an ongoing obligation to comply with this requirement.7 Should any facts or circumstances arise which call into question an arbitrator's independence, the Secretariat informs the parties immediately and invites them to submit their comments.
The statement of independence must be completed by every prospective arbitrator before his confirmation or appointment by the Court. The Secretariat then sends the statement, together with the arbitrator's curriculum vitae, to the parties to allow them a period of time to present any of their observations. In certain situations, for example, if the Secretariat knows of matters that have been omitted from the statement, the candidate will be asked to clarify his statement of independence. It might be appropriate in such instances to ask the other party for a written statement approving the proposed arbitrator. The statement of independence allows the Court to have the maximum possible amount of information at its disposal when it confirms or appoints a prospective arbitrator.
The requirement that an arbitrator act independently, and the simple, concrete system detailed above for ensuring that he does so, were introduced into the Rules in 1988.8 The 1955 version of the Rules did not contain such a requirement and it was not until the 1975 version that this requirement was inserted with respect to co-arbitrators. In 1980, the Internal Rules extended this requirement to sole arbitrators and chairmen of tribunals.9
The statement of independence form remitted to all prospective arbitrators asks the arbitrator to indicate "... whether there exists any past or present relationship direct or indirect, with any of the parties or any of their counsel, whether financial, professional or of another kind ..." One comment is necessary at the outset. By definition international arbitration brings together a set of players - arbitrators, lawyers, parties - from a wide variety of backgrounds, each of whom provides a rich contribution stemming from his own culture and his distinctive characteristics.10 Moreover, it should be remembered that the concept of independence varies greatly amongst cultures, so that there is no universally accepted definition of the term.11 ICC arbitrations in 1994 involved arbitrators from over fifty countries and parties of over one hundred different nationalities.12 Thus, the way in which the facts recorded in the statement of independence are perceived will clearly vary depending upon the background and cultural concepts of each individual.13
A study of the statements of independence previously submitted by arbitrators throws light on the relationship between arbitrators and parties, between arbitrators and the parties' lawyers and between the arbitrators themselves. The Rules refer only to independence prior to the constitution of the arbitral tribunal. This is an objective notion, since the existence of previous links can be verified. Impartiality, on the other hand, rarely comes to light at the outset. Lack of [Page6:] impartiality - a more subjective notion - may arise during the hearings or in the award itself, as we shall see when we come to deal with the issue of a possible challenge of an arbitrator "for an alleged lack of independence or otherwise".14 These concepts of independence and impartiality can be considered separate from the requirement that the arbitrator adopt a neutral position with respect to the arguments and interests asserted by the party who nominated him. It is accepted that the system of the "partisan arbitrator" is allowed in certain types of arbitration.15 It is also possible to consider that prior to the constitution of the arbitral tribunal, the notion of independence is broad enough to include all of these concepts.16 Although the expression "facts and circumstances" refers to objective factors, the use of the conditional "that might be of such a nature as", in the sense of "is likely to", may suggest that the whole of Article 2, paragraph 7, of the Rules can be viewed as subjective. Nevertheless, the purpose of the provision is to reveal facts that might call into question the arbitrator's independence in the eyes of the parties (and not in the eyes of the arbitrator), if they were to discover them by themselves.17 This is further reinforced by the fact that the phrase referring to disclosure is underlined in the statement of independence form. It states:
... and whether the nature of any such relationship is such that disclosure [of the said relationship] is called for ... Any doubt should be resolved in favor of disclosure.
One author, J. Martin H. Hunter, has deplored the fact that far too many parties still nominate arbitrators in the hope that they will plead the parties' cause within the arbitral tribunal and he regrets the ICC's lack of rigour in preventing this practice.18 The Court's decisions make clear, however, that it considers whether or not the parties have made any objections with respect to the acceptance or refusal of an arbitrator to be an important factor when deciding upon the constitution of the arbitral tribunal. Thus, to this extent the composition of the arbitral tribunal depends very largely on initiatives taken by the parties.
Out of the 3,400 or so appointments or confirmations made during the period under study, some 275 arbitrators submitted qualified statements of independence. These can be divided into the following categories:
A. Relationships between arbitrators and parties
Business relationships between arbitrators and parties may predate the time of nomination or may continue after that time. For example, where a prospective arbitrator or one of his partners, acting either directly or as an employee or manager of a company, has a pre-existing business relationship with the parties or for a company in the same group. The prospective arbitrator may still be carrying out duties or may have previously held an office in a company which owns shares in [Page7:] the company of the party that now nominates him, or may be the director of a professional association to which the party in question belongs. Other possible links between the arbitrator and the parties may be of a personal nature, such as having known the managers of a party 15 years or more before the arbitration. There may also be cultural connections between the arbitrator and the parties, for example, where the arbitrator is the chairman of a lawyers' association that links his own country and the party's country. In none of these situations has the opposing party objected to the confirmation of the party in question and all of these arbitrators were confirmed.
On the other hand, certain situations have given rise to objections from one of the parties. For example, parties have objected to the arbitrator's confirmation where the prospective arbitrator has translated written submissions or completed a technical study linked to the dispute on behalf of the nominating party, where he has been previously employed by an entity with an interest in the outcome of the dispute, or where one of the arbitrator's partners was the director of a foundation aimed at promoting the commercial interests of the nominating company's group. Further examples are cases where the prospective arbitrators were law professors who had given legal opinions either to the parties or to entities with interests in common with such entities (companies in the same group, lenders, etc.). The Court has refused to confirm these arbitrators.
The case of civil servants proposed as arbitrators deserves special attention. State agents nominated by a public enterprise have been confirmed on a regular basis. A co-arbitrator who, in the context of his duties as a consultant for the public enterprise that nominated him, kept the public authorities informed of the negotiations of the contract in dispute and took part in an attempted conciliation between the parties was also confirmed without objection. It should be pointed out, however, that in a situation where the civil servant is employed by an administrative department that usually has the task of defending or representing the interests of public entities, the parties are likely to have doubts as to his independence.19
Prospective arbitrators may have previously acted as arbitrators in separate proceedings involving the same parties, a company in the same group as the parties, or the parties' lawyers.20 Indeed, it is even relatively common that a co-arbitrator who is nominated has previously been chosen for other arbitrations by the same party or by a subsidiary of that party. In the case of civil servants referred to above, the arbitrator may be repeatedly nominated in connection with disputes involving public enterprises in his country. The systematic nomination of the same arbitrator by a party does not necessarily affect that arbitrator's independence. Rather, the ability of the arbitrator to act independently will often depend upon the arbitrator's personality.21
The question of contacts between the party and the person it wishes to nominate as an arbitrator is a delicate one. Such contacts are inevitable and are frequently necessary to enable the party to select the best arbitrator that it can find and to give the prospective arbitrator an opportunity to see if he is well suited to handle the case. These contacts should be limited to providing information about the subject matter of the dispute, the parties, and, where applicable, about any counsel or arbitrators already involved. These contacts do not call into question the arbitrator's independence, although one author has written "[...] in choosing an arbitrator to be nominated by a client, I took for the maximum predisposition towards my client, consistent with the minimum appearance of bias". 22 However, everything is a question of degree. The Court did not confirm a co-arbitrator to whom the opposing party objected [Page8:] where the arbitrator indicated in his statement of independence that he had received some 50 to 60 hours of preparation by the appointing party's lawyers.
B. Relationship between the arbitrators and the parties' lawyers
Social relationships, such as having been a fellow-student, a professor, or an acquaintance of one of the lawyers, have not prevented the confirmation of an arbitrator. However, a number of cases have given rise to objections from the opponent party. The following examples provide illustrations: where the co-arbitrator knew the lawyer of the party who nominated him for approximately forty years; where the co-arbitrator's cousin and brother worked for the same firm as the nominating party's lawyer; or where the co-arbitrator's spouse was a partner of the law firm that represented the nominating party, 23 Conversely, arbitrators have been confirmed whose children or relations by marriage were assistants or attorneys in the same office as the lawyers for one of the parties, and no objection was raised.
Special reference should be made to links of subordination. Examples are cases where the arbitrator was the hierarchical superior of a party's lawyer, or where either the arbitrator or the lawyer previously worked in the other's office as either an employee or trainee, or as colleagues or partners in the same law firm or company. Such situations have not given rise to objections and the arbitrators were confirmed.
Quite a significant number of statements of independence contain reservations stemming from the prospective arbitrator's membership in the bar. This article is not concerned with insignificant matters such as statements indicating that the prospective arbitrator had previously met the parties' lawyer at a conference or in court, or that they were both members of the same chamber of commerce Or on the same editorial board of a law journal. The reader will recall the controversy of several years ago over the extent to which a lawyer chosen as an arbitrator should disclose facts relating to his professional relationship with the parties' counsel. 24 It was maintained that too broad an interpretation of this obligation would lead to experienced arbitrators being prevented from fulfilling the same duties as they had in the past, as a result of the links they developed with their fellow members of the bar - whether as a lawyer or as an arbitrator - in each successive case. Fortunately, this has not proven to be the case, as is shown by the wide variety of situations notified in the statements of independence that, as a general rule, have not prevented the Court from confirming or appointing the arbitrator.
(i) Activities of the arbitrator's associates and partners
Fairly often, the prospective arbitrator is a partner or associate in a multinational law firm with a large number of employees and numerous offices worldwide. It can happen that certain members of the lawyer's firm have carried out, or are in the course of performing, services for or against the parties, or indeed for subsidiaries or other companies in the same group as the parties; have some type of business relationship with the parties; or are involved in the same professional associations as the parties. It may also happen that another member of the same firm is acting as an arbitrator in a different proceeding involving one of the parties, In one case, one of the chairman's partners had been contacted by the claimant prior to the submission of the Request for Arbitration in connection with an attempt to settle the dispute amicably. It was doubtless because no actual intervention took place that the party failed to object to the confirmation of the arbitrator.
(ii) Opinions and advice given by the arbitrator
Objections are often raised against the confirmation of a co-arbitrator whose firm habitually advises either the nominating party or the opponent. In fact, a clear conflict of interest arises if the arbitrator's partners have in-depth [Page9:] knowledge of the opponent party's business. However, there have been cases where the confirmation of an arbitrator who had advised one of the parties or a company in the same group as the nominating party, or even an opponent of that party, was not contested because either the subject-matter of the dispute was not related to the present dispute, or the services were performed long before the start of the arbitration (5 to 20 years). Examples can also be cited of situations where arbitrators had previously been involved in cases with the parties' lawyers on behalf of mutual clients or otherwise; of cases where the arbitrator had previously been a lawyer in an arbitration proceeding in which the lawyer of one of the other parties acted as an arbitrator; or where the arbitrator's firm had previously acted as the affiliate for one of the party's taw firm. The Court confirmed the arbitrators nominated in this way without objection from the parties.
(iii) Barristers and solicitors
The special case of English practitioners who, as is well known, are classified as either barristers or solicitors, should also be examined. Barristers enjoy a privileged position with regard to the conduct of cases in court. They are appointed by solicitors to appear on behalf of parties in public court proceedings. Although barristers do not have a monopoly on the right to act as arbitrators, they are frequently nominated by solicitors who are advising parties to the arbitration. In accordance with the arbitrator's obligation to provide such information, barristers who are nominated or proposed as arbitrators duly report in their statements of independence that they have received cases in the past from the firms of solicitors acting for the parties. It is not a question of creating a special status for barristers in international arbitration, but merely of making them subject to the obligation to inform the parties, who may not be British nationals and may thus be legitimately unaware of the way the legal profession is organised in England. 25 Indeed, since arbitrations should respect the cultural and legal traditions of each of the parties, it is essential that they avoid manifestations of legal nationalism. 26
Nonetheless, in a number of cases before the national courts, arbitral tribunals have been held to be duly constituted where they included an arbitrator who was a barrister from the same chambers as a barrister representing one of the parties before the tribunal. The Court did not object because the sharing of premises and services did not bear on the independence of the barristers belonging to the same chambers. 27 Further, it is accepted practice at the English bar that barristers from the same chambers are allowed to represent opposing parties in the same case. While this practice is not harmful in itself, it should at the very least be disclosed and explained to the parties to enable them to accept the individual chosen as arbitrator with full knowledge of the situation.
(iv) Cooperation between firms
The practice whereby several firms combine to set up offices for their joint use, which is a growing trend in Europe, should also be considered. For instance, on several Occasions, the arbitrator's firm established an office in collaboration with a number of other firms, one of which was the firm of the claimant's attorney. In another case, the co-arbitrator nominated by the defendant had worked in a firm that was a member of the same European economic interest group as the firm of the defendant's lawyer. 28 in yet another case, both the chairman of the tribunal who had been nominated by the two co-arbitrators and the co-arbitrator nominated by the claimant were members of firms from different countries in the European Union that were contemplating setting up a European economic interest group. Although the degree of cooperation between the firms will naturally vary depending on the terms of the agreement of the European economic interest group, none of these situations creates an inherent incompatibility with the concept of the independence of arbitrators, any more than it does in the case of English barristers. However, once again it is preferable that the parties be made aware of the situation and be given an opportunity to express their views. With the exception of one case where objections were raised by the other party, the Court confirmed the arbitrators. In any [Page10:] event, so far as access to the office of the arbitrator is concerned, the requirement of independence cannot be used as a pretext for favouring or discriminating against the particular professional structure that may be adopted by different types of legal practitioners.
The prospective arbitrator may have been an arbitrator in a previous procedure in which the parties' lawyers were involved. In such a case, it may appear to the parties as if a chairman who accepts a nomination by one of the parties to act as co-arbitrator in a subsequent arbitration was being rewarded for services he had previously rendered.
C. Pre-existing relationship between arbitrators
Although the statement of independence does not require them to do so, arbitrators sometimes mention pre-existing relationships they have with other arbitrators. Accordingly, it may be helpful to reassure the parties that one arbitrator will not have an influence over the other because of these relationships that exist apart from the case. These situations might be linked with the need to dispel any doubt the parties may have as to the arbitrator's intellectual independence. Such relationships, whether they derive from occasionally teaching in the same university or from the existence of other professional relationships, have never created an obstacle.
D. Information in the possession of the arbitrator
Unless the arbitration clause is appropriately worded, or there is a mechanism providing for the compulsory joinder of cases (which is scarcely compatible with the spirit of arbitration), 29 it may he tempting where there are several related arbitrations to seek a procedural solution by appointing the same arbitrators, or at least the same chairman or sole arbitrator. As a result, in practice, the same arbitrator is frequently appointed. This issue has been the subject of intense interest in the law journals, leading experts to comment that where one arbitrator participates in several related arbitrations, questions arise regarding the equality of the parties, the arbitrator's impartiality and due process concerns.' 30
Professor Claude Reymond has emphasized that where the joinder of cases is impossible, 31 the use of the same arbitrators may be the answer. This is the practice of the ICC. In reality, there are two aspects to the use of the same arbitrators in related cases: prior knowledge of information about the case which is not problematic in itself - and the existence of preconceptions about the case - which is not acceptable. The same arbitrators should not he used when this entails an infringement of either party's right to receive due process under the law. 32 The Court refused to confirm the defendant's nomination of a co-arbitrator in a case where a claimant objected to his nomination on the ground that he had rendered an award between the same parties in a previous arbitration and this award was currently under [Page11:] attack in the state courts. The Court no doubt viewed this case as an instance in which the use of the same arbitrators would entail an infringement of the claimant's due process rights. Although each case involved a different contract, the issue of force majeure was identical in both proceedings. In a case involving two parallel proceedings with the same parties but addressing separate contracts, the Court has confirmed the same co-arbitrator for both proceedings despite opposition from one of the parties that the rendering of a partial award in the first case would result in prejudgement in the second. However, no award had been rendered in the first case at the time the Court made its decision. 33
E. Overall assessment
The motive behind asking prospective arbitrators to make known all aspects of their situation that relate to the parties in the case is to provoke a discussion between the arbitrators and the parties, and between the parties themselves, to enable the parties to acquire confidence in the prospective arbitrator. The function of the procedure that takes place before the Court by virtue of the provision in Article 2, paragraph 7, of the Rules, is to ensure that the arbitral tribunal is not constituted unless there is a sense of confidence on both sides. 34 Indeed, once an arbitrator has been appointed to the arbitral tribunal, he carries out his duties on behalf of both parties and must provide both parties with the sense that he will act independently and impartially. Of course, the court considers the seriousness of the objections raised by the parties against the confirmation or appointment of an arbitrator. Even when neither of the parties raises an objection, the Court evaluates the arbitrator's situation to ensure that it is in compliance with the requirement of independence stipulated by Article 2, paragraph 7. However, a refusal to confirm or appoint an arbitrator is rarely decided by the Court on its own initiative. Furthermore, those which have been raised have borne little relation to the issue of the arbitrator's independence. Rather, they have included, for example, objections to an arbitrator's nationality or residence, or his refusal to act in accordance with particular provisions in the ICC Rules, for instance where the arbitrator made an agreement on fees with a party in violation of the schedule of arbitration costs (Appendix 3 of the Rules). The Court on its own initiative has also refused to confirm the replacement of a co-arbitrator because he did not know the language of the proceedings specified in the Terms of Reference.
During the period studied, there were approximately forty cases where the Court refused to appoint or confirm an arbitrator. The practices prior to the confirmation or appointment of an arbitrator, as discussed thus far, can be defined as "preventative challenges" in that the decision whether or not to change the arbitrator will depend largely upon whether or not either of the parties wishes to raise an objection. In contrast, and as the next section of this article will show, after the arbitrator has been confirmed or appointed, the parties themselves are required to challenge an arbitrator on the basis of objective and substantiated reasoning.
II. The practice after the confirmation or appointment
Challenge
The expected surge in the number of challenges of arbitrators has not taken place. 35 The facts speak for themselves: on average a dozen arbitrators are challenged each year out of more than 1,000 arbitrators acting in ICC tribunals. Roughly seventy-five percent of these challenges were introduced by the defendant party. Without doubt one of the main factors that contributed to stemming this tide has been the implementation of the statement of independence procedure. This preventative measure has succeeded in staving off possible criticism of the individual nominated as arbitrator. Challenges based on a want of professional experience, inadequate linguistic skills, limited knowledge of the law applicable to the dispute, and other qualifications - such as the fact that the arbitrator is not a member of the bar of the place of arbitration, or, in the case [Page12:] of the chairman or sole arbitrator, that he was not a national of the country of the place- of arbitration or that he was a national of the country where a subsidiary of one of the parties had its registered office - have all been unsuccessful. In reality, the facts cited as grounds for these challenges were already known before the arbitral tribunal was constituted. 36 So few challenges have been made and so few of these have been allowed (ten during the period studied) that it seems clear - as was pointed out above - that the statement of independence fulfills its preventative function satisfactorily. Regardless of the circumstances, the practice of making repeated challenges against the same arbitrator for the most esoteric of reasons is a disturbing one. One illustration of this practice was a case in which an arbitrator was criticized on the basis of his nationality, as his country - once the centre of an empire that was broken up at the end of the First World War - had included amongst its provinces the defendant's country that it had conquered during the early sixteenth century. Although such historical references may well make us smile, in many cases it may lead to the party attempting to drive the arbitrator to commit an error by repeatedly challenging the arbitrator so that it can blame the arbitrator's resulting irritation with the party on the arbitrator's alleged lack of impartiality. For example, a party has submitted a challenge of an arbitrator based on the fact that as it had instigated court proceedings against the arbitrators and the ICC, the arbitrator could no longer remain impartial.
A. Procedure
The challenge or replacement procedure is surrounded by a maximum of precautions and guarantees. It strives to address pragmatic concerns while at the same time respecting the need to make the process intelligible to all involved. The challenge submitted by a party 37 is communicated by the Secretariat to the other parties, to the challenged arbitrator and to the other members of the arbitral tribunal. If the arbitral tribunal is not fully constituted when the challenge is submitted, only the challenged arbitrator and any arbitrator who may already have been appointed will he invited to make comments. Any such comments, together with the reply from the arbitrator who is being challenged, that are received within a reasonable time limit laid down by the Secretariat, will then be communicated to the Court. 38 The Court makes its decision on the matter in a plenary session based on the information it has received and on the report of one of its members. 39 In accordance with Article 6, paragraph I, of the Rules, the parties normally exchange only their written statements. They also supply them to the arbitrators. The Secretariat does not communicate to the parties either the reply from the challenged arbitrator or, depending on the case, any comments from the other arbitrators - who were acting as it were as witnesses to testify regarding the accusations levelled against their colleague. On the other hand. there is nothing to prevent the arbitrators from communicating their comments to one another and/or to the parties on their own initiative.
Any arbitrator may be challenged, including the co-arbitrator nominated by the party submitting the challenge. The Rules stipulate, however, that "if it is to be admissible", the challenge must be submitted, either within the 30 days following the receipt of the notification of appointment or confirmation of the arbitrator by the Court, or within the 30 clays following the date when the facts and circumstances on which the challenge is based came to the knowledge of the party entering the challenge, if this date is subsequent to the receipt of the said notification.40 It could [Page13:] be argued that the short period of time provided within which the party must submit its challenge raises doubts as to whether the arbitrator can properly comply with his obligation to provide full and genuine information about his situation. These provisions, however, must be read in the context of the Rules as a whole, and particularly Article 26, which requires the Court to act in the spirit of the Rules and make every effort to ensure that the award will he enforceable. The Court's practice, naturally, is to see to it that a request is not lodged in a dilatory fashion. The very act of issuing a decision, whether it rejects or accepts the challenge, implies that the Court has checked that it is admissible. The issue that remains paramount, however, is to ensure that the award cannot be set aside as contrary to international public policy.
B. Grounds for challenges
According to the Rules, any challenge must be based on "an alleged lack of independence or otherwise". 41 This is a broader concept than the objective facts discussed in relation to the concept of independence. Indeed, in the context of challenges to an arbitrator, it is no longer a matter of simply assessing the relationships between arbitrators and parties, but rather of taking into account all grounds for criticism of the arbitrators' action, only the first of which is lack of impartiality. 42 However, when the various cases where an arbitrator has been challenged are classified, they fall into roughly the same categories as the challenges already considered in relation to non-confirmation or refusal to appoint arbitrators.
Professional and business contacts that have not been mentioned by the arbitrator, in his statement of independence, form the basis for a significant number of challenges. If it appears that the arbitrator has an interest in common with the parties or their lawyers at the financial, business or professional level, the Court has generally allowed the challenge of the arbitrator. 43 The Court rejected a party's challenge of the chairman of a tribunal based on the fact that he was a partner in a firm that shared offices with another law firm that had a client in the same group of companies as one of the parties to the arbitration. In a separate case, the Court allowed a challenge based on the fact that the co-arbitrator was also a member of a conciliation committee responsible for settling the dispute. In that case, the arbitrator in question had been appointed to the conciliation committee by the authorities of the defendant's country in order to represent the interests of the defendant, which was a state enterprise. In yet another case, the Court rejected a party's challenge of an arbitrator based on the grounds that the arbitrator was a member of a conciliation committee that involved a company with the same shareholders as the party. The Court also rejected the challenge of a co-arbitrator by the same party that had nominated him, where the party objected to the fact that in the course of the proceeding the arbitrator in question had been appointed to a constitutional court of the state whose public enterprises were involved in the dispute.
Challenges based on the manner in which the arbitrators conducted the proceeding are submitted for a wide variety of reasons. For example, the issue in question may be the arbitrators' decision on the admissibility of new claims; the drafting and communication of the summary record of the hearing; the holding of a preparatory meeting between the arbitrators; the conduct of the hearings; the inclusion of a disputed clause in the Terms of Reference; the refusal to reconsider a decision not to extend the time limit for communication of written statements; the expulsion of a party from expertise proceedings; the refusal to appoint an expert; the alleged secretive exchange of letters between arbitrators; the use by a co-arbitrator of the telex machine of the party who had nominated him to communicate with a colleague to choose the chairman of the tribunal; a request from the [Page14:] arbitrator to the parties to have VAT reimbursed; a decision regarding interim measures, applicable law, or the cancellation of a hearing. This long list shows that most of the grounds on which challenges have been made have been directed at preventing the tribunal from functioning smoothly. Thus, these challenges are frequently directed against several, or all, of the members of the arbitral tribunal.
One case of note involved charges of prejudgement levelled against an arbitrator on grounds that he had published a legal article that allegedly concerned the subject matter of the case the parties were involved in, 44 or was the subject of a previous dispute between the same parties. In another case, those arbitrators who continued to serve as members of the arbitral tribunal after the resignation of other members were accused of prejudgement on the ground that their judgement had already been affected by the arbitrators who resigned, In yet another case, a charge of prejudgement was levelled against an arbitrator who allegedly was on bad terms with one of the parties. To the extent that the arbitrator decided this case on the basis of his feelings, it is preferable to think of it as an instance where the arbitrator allowed prejudice to motivate his decision to the exclusion of the search for truth or justice. 45 All of the challenges described above were rejected by the Court, including another one where the arbitrator's earlier partial award had been set aside. However, in all of these cases, the Court replaced the arbitrators in question, holding that they no longer had the necessary independence of judgement to continue to serve in the proceeding.46
In several instances, the practice of repeatedly using the same arbitrators has led to challenges of the arbitrator on grounds that he prejudged the case. The Court has rejected challenges directed against both the chairman and a co-arbitrator where they participated in a parallel arbitration to the full knowledge of the parties, as the parties had been informed of the situation in the statement of independence before the arbitral tribunal was constituted and failed to raise an objection. Similarly, the Court rejected a challenge on grounds that the fact that the arbitrator had rendered a final award in the first case established his prejudgement in the second. The Court reached this decision even though the first procedure had just been completed by the rendering of a final award. It found that this circumstance on its own was not sufficient to establish that the arbitrator had prejudged the case, since he had merely decided the two cases one after the other in accordance with the task entrusted to him. 47 This leads to the delicate question of what the arbitrator's attitude should be during the deliberation stage when he is involved in two related arbitrations. Should he keep information that he received in the first arbitration to himself, or should he share it with his colleagues in the second arbitration? If he does keep the information to himself, he runs the risk of incurring the accusation that by not revealing this information to both parties (provided confidentiality concerns would allow him to reveal it), he failed to respect the parties' rights to clue process. The Court rejected a challenge against a co-arbitrator who had acted in a previous case involving the same parties in relation to the same contract. The party making the challenge alleged that the arbitrator in question had preconceptions about the case based on the fact that the first arbitral tribunal had declared that it had no jurisdiction. However, the Court concluded that there could have been no direct prejudgement in relation to the second case since it concerned counterclaims that had not been examined in the first case. 48
Is prejudgement also an issue when the arbitrator in making his decision bears in mind the many cases he has dealt with in the past? In other words, one might fear that the arbitrator has decided the question in advance before hearing the dispute and without examining it at all. According to Professor Reymond, the issue of prejudgement [Page15:] by an arbitrator does not arise in a case if the same question of law is at issue, since an arbitrator is not bound by his previous decisions any more than he is by his writings, and, accordingly he is free to change his mind; moreover, experienced arbitrators will have come across many situations, some of which they may not even remember. 49 Even when the questions involved are purely matters of law, however, it is questionable whether the arbitrator will approach the issues of law free of prejudice.
C. Consequences of omissions in the statement of independence
Claims that the arbitrator has been unwilling to divulge relationships in his statement of independence, if substantiated, will generally have serious consequences for the arbitrator involved. In such instances, the Court will allow the challenge, meaning that the arbitrator is removed. However, the mere failure to reveal certain facts relating to the subject of the challenge is insufficient in itself to automatically substantiate the challenge. One cannot conclude from the fact that certain situations arose during the proceeding that related to the matter that is the subject of the challenge that the challenged arbitrator is carrying out his task in a deceptive fashion.
Three situations will be examined:
• The Court rejected a challenge brought by the claimant against a co-arbitrator nominated by the defendant party. The challenge was based on the grounds that the co-arbitrator, who was qualified to appear before the Court of Appeals, had argued cases on appeal for clients of the defendant's counsel as well as for other clients in the defendant counsel's jurisdiction. In order to fully understand this decision, it is important to be aware that the arbitrators had already begun deliberating on the award when the challenge was made, In addition, the counsel of the party making the challenge had offices in the same city as the co-arbitrator and defendant's counsel. Accordingly, it seems highly unlikely that the claimant was unaware of the situation.
• During the proceeding, a member of the firm of which the chairman of the tribunal was "of counsel" became the honorary consul of the State where the claimant had its registered office. The claimant had taken out a State-guaranteed foreign trade insurance policy. The consulate general for the State and the chairman of the tribunal's law firm were located on the same premises, shared the same office equipment (fax machine, etc.) and the same personnel. In addition, the chairman of the arbitral tribunal was one of the owners of the premises rented to the law firm and, accordingly, to the consulate general. However, as this combination of circumstances did not give rise to any legitimate doubts as to the arbitrator's independence, the Court rejected the challenge introduced by the defendant.
• The chairman of the arbitral tribunal. was a consultant of the firm advising both the defendant and the defendant's parent company, although the latter was not involved in the arbitration. The chairman had made no reference to this fact in his statement of independence, but the letterhead on the paper used by the chairman to communicate with the parties included the name of the defendant company's counsel. The chairman, who in fact was nominated because he was a member of a major law firm, had been chosen by the co-arbitrators without the objection of either party. Nevertheless, parties are not bound by the co-arbitrators' mutual error in selecting the individual to serve as chairman, since arbitrators are not the equivalent of agents appointed by parties pursuant to an agency agreement. 50 In this case, the Court allowed the claimant's challenge because it considered that the list of names on the letterhead was insufficient in itself to serve as due notice of the chairman's position. The arbitrator should have emphasized this fact in his statement of independence. 51[Page16:]
D. Proof of the facts alleged in support of the challenge
There is no general rule that is applied uniformly in the area of challenges. Nevertheless, it is possible to divide the established case law of different national courts into three categories. 52 The first category is a rigid one, involving those cases in which justice must be seen to be done: 53 the second category is a liberal one, for cases in which the arbitrator is given the benefit of a genuine presumption of impartiality; 54 and the third falls in the middle of these two, for those instances where circumstances are such as to east legitimate doubts on the arbitrator's independence. 55
For challenges before the ICC Court to be successful, it is necessary that the information collected from the challenged arbitrator, the other members of the arbitral tribunal and the parties corroborate the pleas set out in the challenge. In every case, substantiated objective grounds - in other words, precise, full and relevant proof of the facts that adversely affect the arbitrator's independence or judgement - must be submitted.
This is in sharp contrast with the requirements for the period prior to the constitution of the arbitral tribunal, where the rationale behind rejecting an arbitrator stems from a concern that the parties may not have confidence in the arbitral tribunal. After the tribunal is constituted, if the party submitting the challenge can merely proffer vague assertions, unsupported by evidence that can he checked objectively, the Court will reject the challenge.
It has been noted that the Court applies differing degrees of severity to its decision whether to allow the challenge depending upon when in the proceeding - at the beginning, middle or end - the challenge is made. 56 In practice, challenges that have been made towards the end of the proceedings, during the arbitrators' deliberations or while the draft award was being scrutinised by the Court, have been rejected because they appeared to have been made for dilatory purposes. 57
Replacement
Replacement of an arbitrator occurs in the following situations: after a successful challenge of an arbitrator; in the event of the death or resignation of an arbitrator; 58 in the event of the arbitrator's unavailability, whether "de jure or de facto";59 or if the arbitrator fails to fulfill his duties in accordance with the Rules or within the time limits allowed by the Court for drawing up the Terms of Reference or handing down the award. 60 This article is concerned with the last of these situations. The organisation of the replacement procedure is virtually identical to that used when a challenge is brought. The Secretariat receives [Page17:] the parties' and arbitrators' comments and transmits them to the Court. The replacement procedure differs, however, in that it is triggered by the Court on its own initiative. The Secretariat first brings any information that may be grounds for replacement to the attention of the Court. If the Court considers that the replacement procedure should be commenced, the Secretariat then, in this second stage, communicates this information to the arbitrator concerned, the other members of the arbitral tribunal and the parties for their comments. The Court then meets in a plenary session to examine whether or not the arbitrator should be replaced. 61
Although both challenge and replacement are aimed at the removal of the arbitrator, each one is its own separate, distinct procedure. The first is available to the parties and the second to the arbitral institution. Although an arbitrator does not have the opportunity to challenge or replace a colleague, he may, as can the parties, inform the Secretariat of circumstances that in his estimation call for such procedures. Nonetheless, the situation has arisen where a party has introduced a request for replacement on the basis of paragraphs 8 to 11 of Article 2, either because it had misgivings about whether it could comply with the time limit under Article 2, paragraph 8, or perhaps because replacement appeared less controversial than challenging the arbitrator in question. Naturally, the Court has full power to rectify the way the recourse is described in its decision and may conclude, despite the name the patties have attributed to it in their request, that it constitutes a challenge. 62 Examples of replacements are few and far between: during the years in question, approximately five replacements were made. From 1988 to 1994, on average two replacement proceedings were initiated each year. Replacements have been made based on the arbitrator's inadequacy in conducting the proceeding, or where dissension between the arbitrators became so great that they threatened one another with criminal proceedings, making the future of the proceeding and the possibility of deliberations amongst the arbitrators appear far too uncertain.
Resignation
The arbitrator's resignation is only valid if it is accepted by the Court. 63 In fact, an arbitrator who has accepted his task has entered into contractual ties with the parties and the arbitral institution that then cannot be broken off lightly. 64 In order to avoid possible instances of fraud, such as a resignation submitted during the deliberations because of a disagreement with the majority of the arbitral tribunal, 65 it is essential in all cases to check that the arguments put forward in favour of resignation are genuine. In practice, the reasons for resignation that are invoked most often concern health matters. However, other cases have arisen in which the impossibility of holding the arbitration in the place originally chosen by the parties - because of serious troubles in that country, or a professional link between the arbitrator and a party's lawyer, or professional incompatibility between the parties that arose in the course of the arbitration - has led to the arbitrator's resignation. Although the arbitrator has an obligation to familiarize himself with the particular circumstances of the dispute prior to his appointment, it is conceivable that elements of the proceeding, such as the language or the real significance of the case, are only specified in detail after the appointment of the arbitrator. The arbitrator's traits may no longer correspond with this new information. In a case where a party's counsel threatened the arbitrators, as well as derided them in front of third parties, the Court accepted the collective resignation of all the members of the tribunal, as the deterioration in the relationship between the counsel and the arbitrators had made it impossible for the arbitrators to continue with their task.
Also, in some instances, an arbitrator faced with a challenge procedure prefers to submit his resignation before the Court makes a ruling on the challenge. Finally, in some instances, an arbitrator submitted his resignation even though the challenge brought against him had been rejected. [Page18:]
Conclusion
One may well ask whether the issue is not so much the lack of independence on the part of arbitrators but is rather the lack of training or lack of practice in arbitration techniques on the part of parties and their representatives, as well as lack of knowledge of the fundamental principles of ethical conduct in this area that is really the problem. What is one to make of the lawyer who, rather than challenging the arbitrators, prefers to make critical remarks about the arbitrators' professional or moral qualifications to those outside of the proceeding?
However, it is essential to recognise that the composition of arbitral tribunals should reflect the wide variety of cultural conceptions of independence, at least if one thinks that participation by all the parties - regardless of their origins - is desirable for the spread of arbitration and the development of international law. It is also advisable to be selective in choosing facts from among those mentioned in the statements of independence, only the most significant, since many qualifications, as we have seen, are trivial. The ICC strives to ensure that arbitrations conducted under its Rules proceed smoothly and with the trust and confidence of all ''of the parties involved. The Court pays close attention to the parties' acceptance of, or opposition to, the arbitral tribunal to make sure that the parties maintain their confidence in the arbitration. 66 Provided the parties do not object when the arbitral tribunal is constituted, and the arbitrators communicate amicably, the Court cannot do otherwise than to accept them as well. 67
1 Report by Aguilar-Alvarez in The Arbitral Process and the Independence of Arbitrators, p. 23; Bond, "The Experience of the ICC in the Confirmation/Appointment Stage of an Arbitration" in The Arbitral Process and the Independence of Arbitrators, ICC Publication No. 472, 1991.
2 Bellet, Rev. arb. 1992, note p. 568.
3 The French courts have held that appeals against decisions of the Court that relate to the challenge of arbitrators are inadmissible. However, they will entertain cases alleging that the ICC has applied its Rules incorrectly, CA Paris, 15 January 1986, Rev. arb. 1986, p. 87 and Cass. 2e civ., 7 October 1987, Rev. arb. 1987, p. 479, notes Merger, TGI Paris 28 March 1984 and CA Paris 15 May 1985, Rev. arb. 1985, p. 141; Moreau, "L'influence du modèle français sur l'arbitrage international," L'internationalité du droit et des institutions, Etudes Alain Plantey, Pedone, p. 213; Fouchard, "Les institutions permanentes d' arbitrage devant le juge étatique", Rev. arb. 1987, p. 225.
4 Article 2, paragraph 13, subparagraph 2.
5 In some cases the Court confirms arbitrators who are nominated by the parties or chosen by the co-arbitrators. In other cases, it appoints the arbitrators itself, generally with the assistance of the National Committees (Article 2 of the Rules). In principle these decisions are taken by the Committee of the Court. It may happen that the parties have provided in the arbitration clause that the arbitrator is to be chosen by a third party (the chairman of a professional association, a national court, etc.). Even in such cases, however, the Court should be satisfied that the person thus designated is independent and it must rule on subsequent issues, such as the challenge and replacement of arbitrators.
6 Article 2, paragraph 7.7.
7 Article 2, paragraph 7, subparagraph 3.
8 Arnaldez & Jakandé, "Les amendements apportés au Règlement d'arbitrage de la CCI", Rev. arb., 1988, p. 67.
9 Bond, "The Experience of the ICC in the Confirmation/ Appointment Stage of an Arbitration", op. cit., p. 9. Craig, Park, Paulsson, ICC Arbitration, Oceana-ICC Publishing, 2nd ed., 1990, Chapter 13.
10 Alain Plantey, "International Arbitration in a Changing World", ICCA Congress Series No. 6, 1994, p. 67.
11 Matray Report, Consultative Commission of the Bars of the European Community, October 1984,
12 Bulletin of the Court 1995, vol. 6, n° 1, p. 3,13
13 Bellet, "Des arbitres neutres et non neutres", Etudes Lalive, Helbing & Lichtenhahn 1993, p. 399.
14 Article 2, paragraph 8, subparagraph 1. See Lalive, "Sur l'impartialité de l'arbitrage international en Suisse", SJ 1990, p. 362, which refers to "the persistent vagueness and ambiguity surrounding basic concepts such as arbitrators' impartiality and independence". Bernini, L'Arbitrato, diritto interno, convenzioni internazionali, Ed. Clueb Bologna, 1993, p. 287, et seq.
15 ABA Code of Ethics for arbitrators in commercial disputes, Canon VII, which specifies that "Non-neutral arbitrators may be predisposed toward the party who appointed them but in all other respects are obligated to act in good faith and with integrity and fairness": P. Bellet, "Des arbitres neutres et non neutres", op. cit.
16 The Swiss law of private international law likewise only refers to the notion of independence (art. 180). This does not mean that arbitrators should lack impartiality, but the essential factor is that all arbitrators, including those nominated by the parties, should be independent of the party who nominated them. See Lalive, Poudret, Reymond, Le droit de 1'arbitrage interne et international en Suisse, Payot, Lausanne, 1989, pp. 339-340.
17 CA Paris, 2 June 1989, Rev. arb. 1991, p, 87, 1st and 2nd cases. Setting out its views on the extent of the duty to inform, the Paris Court of Appeal states: "for parties to be able to exercise their legal rights of challenge, the legal obligation of information that is binding on the arbitrator […] must be assessed in the light both of the public nature of the situation objected to and its impact on the arbitrator's judgement."
18 "Unfortunately, the ICC has itself effectively been forced to condone the practice in the way that the system of reviewing party-nominations and confirming appointments [...] is operated time and again, the ICC confirms the appointment of a nominee who is actually manifestly not independent by reason of being an employee of a government, where an agency of that government is a party to the arbitration"; Hunter, "Ethics of the International Arbitrator", The Journal of the Chartered Institute of Arbitration, 1 November 1987, p. 219. See also Hunter and Paulsson, "A Code of Ethics for Arbitrators in International Commercial Arbitration'?" International Business Lawyer, April 1985, p. 153.
19 Regarding the independence of an arbitrator who is a civil servant, see CA Paris, 2 June 1959, Rev. arb. 1991, p. 92. 2nd case.
20 The arbitrator's partner may have been an arbitrator in procedure involving one of the parties. "Such independence also implies - an aspect that is often disregarded or hidden - the courage to displease, and in particular in the case of the arbitrator nominated by a party, the lack of any desire to be chosen by the same party on a subsequent occasion," See Lalive, "Sur l'impartialité de l'arbitre interne et international en Suisse", op. cit.
21 Reymond, "Des connaissances personnelles de l'arbitre à son information privilégiée", Rev. arb, 1991, p. 3; Lalive, Poudret, Reymond, Le droit de l'arbitrage interne et international en Suisse, op. cit., p. 341.
22 Hunter, ICC Publ. No. 472, op. cit., p. 25.
23 For example, the judgement of the Swiss Federal Court which excluded an arbitrator whose wife was the assistant (Zone of the parties' attorneys. ATF 92 I 276; Jolidon, Commentaire du concordat suisse sur l'arbitrage, Staempfli, 1984.
24 ASA Bulletin 1990, pp. 7 and 226.
25 Kendall, "Barristers, Independence and Disclosure", Arb. Intl. 1992, Vol. 8, No. 3, p. 287.
26 Lalive, "On the Neutrality of the Arbitration and or the Place of Arbitration", Recueil de Travaux Suisses sur l'Arbitrage International, Schulthess Polygraphischer Verlag Zurich 1984, p. 23.
27 CA Paris, 28 June 1991 Rev. arb. 1992, p. 568, note Pellet; Kendall, op. cit.
28 Gaillard, Carreau, Lee, Le Marché unique européen, Pedone, 1989.
29 Delvolvé, "Final Report on multi-party Arbitrations", The ICC International Court of Arbitration Bulletin, Vol. 6/No. 1, May 1995, p. 26.
30 CA Paris, 2 June 1989 2nd case, op. cit.; Reymond, "Des connaissances personnelles de l'arbitre à son information privilégiée", op. cit.; Bedjaoui, "Des fortes vérités de Cassandre aux modestes correctifs de Némésis", op. cit., p. 385.
31 Reymond, "Des connaissances personnelles de l'arbitre et son information privilégiée", op. cit.
32 (TGI Paris, 13 January 1986, Rev. arb. note Bellet, p. 63). The Setec case decided by the Paris Court of First instance provides is Useful illustration. A first arbitration had taken place between companies A and B at the end of which company A was ordered to pay damages to B. Company A joined company C as a third party defendant in a second arbitration in which it intended to nominate the same co-arbitrator as the one previously nominated in the first arbitration. On an appeal by company C, Judge Pluyette held that: "for this arbitrator; the knowledge of the previous procedure is not such as to call into question his impartiality and his objectivity, Or even his aptitude to decide the dispute dependably, since he as an individual is not the subject of any serious challenge."This is an example of the first aspect discussed in the body of the text above. However, the award rendered in the first arbitration comprised an incidental declaration relating to company C's liability. the Court went on to say: "Whereas in having taken part in drafting the said award from which the principle that company [C] is liable can be deduced, even if the reason is presented in an apparently doubtful form, Mr X, an arbitrator and member of the said arbitral tribunal, has impliedly but of necessity made a ruling on the present dispute ,whereas company [C] was not a party to the first arbitration and the arbitrators were not aware that company [A] intended to bring a claim against it as a third party defendant."This illustrates the second aspect: where the arbitrator has already expressed an opinion on company C's liability in an arbitration to which C was not a party, there is prejudgement and also inequality of the parties, to C's detriment, if A is allowed to nominate the same arbitrator again.
33 "True, one may 'fear', 'imagine', 'suppose', or even 'suspect' [...], thus succumbing oneself to a certain ... prejudice against the arbitrator in question. But one cannot be certain that this is truly the case, or will always be the case, in all events and in all circumstances; thus, the greatest fear remains generalisation, based, moreover, on mere suppositions." Bedjaoui, "Des fortes vérités de Cassandre aux modestes correctifs de Nemesis", Etudes Lalive, op. cit., p. 396.
34 Fouchard, J.Cl. (dt intl) Statut des arbitres, Fasc. 586-7-3, September 1994.
35 Van den Berg, ICC Publ. No. 472, op. cit., p. 87.
36 See TGI Paris, Ord. référé - interim order - 19 December 1990 (unpublished), which rejected a challenge of an arbitrator who had been the lover of a party: "... in failing to take a stand immediately, or even entering reservations about the individual nominated as arbitrator as soon as it knew of his appointment, the [party] allowed the arbitral tribunal to be constituted without any objection on its part and, in particular, allowed the arbitrator whose appointment was unchallenged to exercise his prerogatives by choosing the chairman of the tribunal." (Presiding Judge Pluyette).
37 Article 2, paragraph 8, subparagraph 1: "A challenge of an arbitrator, whether for an alleged lack of independence or otherwise, is made by the submission to the Secretary General of the Court of a written statement specifying the facts and circumstances on which the challenge is based."
38 Article 2, paragraph 9 : "The Court shall decide on the admissibility, and at the same time if need be on the merits, of a challenge after the Secretary General of the Court has accorded an opportunity for the arbitrator concerned, the parties and any other members of the arbitral tribunal to comment in writing within a suitable period of time."
39 Article 11, paragraph (a) of the Internal Rules,
40 Article 2, paragraph 8, subparagraph 2: "For a challenge to be admissible, it must be sent by it party either within 30 days from receipt by that party of the notification of the appointment or confirmation of the arbitrator by the Court; or within 30 days from the date when the party making the challenge was informed of the facts and circumstances on which the challenge is based, if such date is subsequent to the receipt of the aforementioned notification."
41 Article. 2, paragraph 8, subparagraph 1.
42 Craig, Park, Paulsson, ICC Arbitration, op. cit.
43 The case Commonwealth Coating v. Continental Casualty Co. (292 U.S. 145 (1968)) will be recalled, in which the United States Supreme Court set aside the award of an arbitral tribunal whose chairman, unbeknownst to the other party, had had business dealings with the party who won the arbitration. Eiseman, "Déontologie de l'arbitrage commercial international", Rev. arb. 1969, p. 217.
44 See also Bernini, ICC Publ. No. 472, p. 35.
45 Article 23(c) Swiss OJ, to which article 18 of the Concordat refers, makes the existence of "circumstances that are such as to give (arbitrators) the appearance of bias in the procedure" a ground for challenge. See Jolidon, Commentaire du Concordat suisse sur l'arbitrage, op. cit.
46 The Swiss Concordat on arbitration provides that "where the award is annulled, the arbitrators shall rehear the case, unless objection is made on the ground that they participated in the previous proceedings or on some other ground." (Article 40, paragraph 4). See Lalive, Poudret, Reymond, op. cit. p. 229.
47 CA Paris, 14 October 1993. Rev. arb. 1994, p. 380, note Bellet.
48 See Reymond, "Des connaissance personnelles de l'arbitre et son information privilégiée", op. cit.
49 See Reymond, op. cit.
50 Fouchard, J.Cl. (dt intl), Fasc. 586-7-3 op. cit., § 105 et seq.
51 This reluctance to comply with the requirement of the statement of independence deprives the party of exercising its right of challenge and constitutes a violation of the party's right to due process. See CA Paris, 4 December 1979, Rev. arb. 1981, p. 146.
52 See Bellet note under CA Paris, 28 June 1991, Rev. arb. 1992, p. 568.
53 Bellet note under CA Paris, 28 June 1991, cited above. See the famous declaration of Lord Hewart in the case- In R. v. Sussex Justice ex parte MacCarthy (1924) KB 249, "Justice should not only be done, but should manifestly and undoubtedly be seen to be done." See Nariman, ICC Publ. No. 472, op. cit. p. 45; Mustill & Boyd, Commercial Arbitration, Butterworths, 2nd ed., 1992, pp. 247-257. See also Ajibola, "Powers and Ditties of Arbitrators", Moller Centre, Churchill College, Cambridge (1994).
54 It is embodied in French case law handed down under the impetus of Presiding Judges Drai and Pluyette. According to this case law, "the arbitrator's independence is the essence of his decision-making function in the sense that, on the one hand, as soon as he is nominated, the arbitrator accedes to the status of a judge, exclusive of any link of dependence, in particular with the parties, and that, on the other hand, the circumstances invoked for challenging the said independence have, by the existence of material and intellectual links, to be characterised as a situation that would affect the arbitrator's bias towards. one of the parties to the arbitration." Thus, according to this liberal view, the arbitrator is vested by the arbitration agreement with the authority of a judge. See Bellet, op. cit., with the reservations he seems to make in this connection; de Boisséson, Rev. arb. 1990, p. 880; Le droit francais de l'arbitrage interne et international, GLN July, 1990, § 768 et seq.; Robert, L'arbitrage, Dalloz, 6th ed. 1993, p. 112.
55 Article 180(c) of Switzerland's Private International Law Statute.: "1. An arbitrator may be challenged: ... (c) if circumstances exist that give rise to justifiable doubts as to his independence." Lalive, Poudret, Reymond, Le droit de l'arbitrage interne et international en Suisse, op. cit., p. 336-340. Belief note under CA Paris, 28 June 1991, op. cit.
56 Böckstiegel, ICC Publ. No. 472, op. cit., p. 23.
57 Gaillard, "Les manoeuvres dilatoires des parties et des arbitres dans l'arbitrage commercial international", Rev. arb, 1990, p. 759.
58 Article 2, paragraph 10: "An arbitrator shall be replaced upon his death, upon the acceptance by the Court of a challenge, or upon the acceptance by the Court of the arbitrator's resignation."
59 For example, de jure impossibility would correspond to legal incapacity, and de facto impossibility to long-term hospitalisation. See Arnaldez & Jakandé, "Les amendements apportés au Règlement d'arbitrage de la CCI", op. cit.
60 Article 2, paragraph 11, subparagraph 1: "An arbitrator shall also be replaced when the Court decides that he is prevented de jure or de facto from fulfilling his functions, or that he is not fulfilling his functions in accordance with the Rules or within the prescribed time limits."
61 Article 11, paragraph (a) of the Internal Rules.
62 Article 3 of the Statutes of the Court.
63 Article 2, paragraph 10. On average, a dozen resignations a year were accepted during the period under study.
64 Fouchard, J.Cl. (dt intl), Fasc. 586-7-3 op. cit, § 101; Ditchev, "Le contrat d'arbitrage", Rev. arb. 1981, p. 395.
65 Gaillard, "Les manoeuvres dilatoires des parties et des arbitres dans l'arbitrage commercial international", op. cit.
66 Lalive, Final Report, Publication No. 472, p, 131, Alain Plantey, "L'arbitrage dans le commerce international", AFDI, 1990, p. 307.
67 According to Professor Lalive: "In a word, One may even wonder, at an extreme, if in the case of the arbitrator appointed by a party a real requirement of independence really exists (or a real standard of behaviour, different from the disclosure obligation), as parties supremely value if, yes or no, they are going to accept or, on the contrary, to refuse, party-arbitrators not offering all guarantees in this regard." Final Report, op. cit., p. 123.