1. The title of the subject entrusted to me is very wide, and might lead me to cover the whole of institutional arbitration, since its organisation and procedure are entirely questions of "relationships" between the arbitrator and the parties on the one hand, and the arbitrator and the arbitration centre on the other. The only relationship that would be excluded from my remarks would be the relationship between the parties and the institution, although it too would be concerned, if only indirectly, by the two others.

Do not worry! The subject of the colloquium itself is much narrower, since it relates only to the status of the arbitrator. Accordingly I shall only be examining these two relationships so as to determine the arbitrator's rights and obligations, since this is the theme of the morning's work.

2. For purposes of simplification, I shall refer throughout to "the arbitrator" in the generic sense of the term, disregarding the possible existence of a panel of arbitrators. Admittedly the number of arbitrators is not without practical consequences for these relationships overall, but in law, the sole arbitrator, the co-arbitrator or the chairman of the arbitral tribunal are all three private judges, benefiting from the same confidence of all the parties and having to show the same independence1 towards ail of them.2 And although the chairman of the arbitral tribunal or the sole arbitrator will have more frequent contact with the parties and the arbitral institution in the conduct of the case, this circumstance has no effect on his legal relationship with the parties or with the centre.

3. As I have just pointed out, the arbitrator exercises a judicial function. His duties as a private judge are modelled on the duties of national judges, and he is entitled to benefit from certain prerogatives accorded to the latter, particularly in the aim of protection.

4. But this transposition cannot be a total one, nor will it suffice for characterising the status of the arbitrator. Indeed, arbitration is essentially contractual in nature, and defining the rights and obligations of the different protagonists of necessity involves analysing the contracts that bind them.

What contracts? In the case of institutional arbitration, four different types can be discerned.

5. The arbitrator is not a party to the first two.

The first of these is, of course, the arbitration agreement itself, concluded solely by the parties to the dispute (litigants) whereby they agree to submit any dispute that may arise to arbitration ("arbitration clause" or "agreement to arbitrate") or that has arisen already ("arbitration contract" or "submission agreement").

The second is the agreement that will bind the arbitration centre and the two parties.3 In laying down and publishing its arbitration rules, the centre offers its services to the public on an ongoing basic, in accordance with the [Page13:] conditions stipulated by the rules in question. Its offer is accepted by the parties when they conclude an arbitration clause attributing jurisdiction to the centre in the event of a dispute. However, the contract itself is not concluded until the dispute arises and the claimant has submitted its request for arbitration to the centre. The centre may even refuse to administer the arbitration if there is no apparent arbitration clause binding the parties, or if the dispute submitted to it does not fall within the scope of its particular specialist field.

6. Two further relationships, which concern the arbitrator directly, are also established: firstly, the relationship between the parties and the arbitrator, and secondly the relationship between the arbitration institution and the arbitrator.

My present task is to analyse these two relationships in the light of the status of the arbitrator.

My task will be facilitated by the recent conclusions of a working party that I have had the honour of running within the ICC Commission on Arbitration. It has pinpointed a number of "elementary principles" (twelve in all) constituting a sort of universal status of the international arbitrator (Published in the ICC International Court of Arbitration Bulletin, Vol. 7/No. 1, May 1996). It would be interesting to check whether the participants in this colloquium agree with the findings of this group of specialists, who represent a variety of different legal backgrounds.

As the next two speakers, Messrs Carter and Hausmaninger, will be addressing you on the rights and obligations of the arbitrator towards the parties and the arbitral institution, I do not intend to go into the details of the content of these relationships, but rather to characterise them, to distil their nature, but clearly only so far as this research is necessary, in other words insofar as the nature of these relationships entails practical consequences.

7. Quite naturally, these two relationships need to be examined one by one.

The first relationship, between the arbitrator and the parties (I) is the more simple. It is inherent in any arbitration, whether ad hoc or administered by an arbitration centre. Indeed, although the arbitrator is a "judge", nobody disputes that this relationship is also contractual in character. Whether or not an arbitration centre is involved makes very little difference, accordingly this relationship may be examined at the outset without taking account of the presence of the arbitral institution.

The second relationship, between the arbitrator and the arbitral institution (II), is obviously a factor of complexity peculiar to institutional arbitration. It is also the more delicate to characterise. Although, to my mind, it is of necessity contractual in character, simply classifying this relationship as a contractual one is not sufficient for resolving the numerous difficulties liable to arise in the course of the arbitrator's dealings with the arbitration centre.

I. The relationship between the arbitrator and the parties

8. Although the arbitrator is a judge, he is only a judge by virtue of a contract, whereby he has promised the parties (and possibly the arbitration institution) that he will carry out a clearly defined task, that is usually remunerated. Hence, his status is contractual in origin. Today, the existence of such a contract is no longer seriously disputed (A), even if the precise consequences of this analysis still give rise to certain areas of uncertainty (B).

A. The contractual nature of this relationship

9. Certain authors, particularly in Great Britain, take the view that the arbitrator's rights and obligations are linked, if not to a quasi-contract, at least to a "status" stemming directly from the law, comprising, in the aim of general interest, rights and obligations to the benefit and burden of the arbitrator.4 However, their scepticism regarding the existence of a contract is based above all on the "ingenuity" that is needed to discover it, and the original features of the relationship between the parties and the arbitrator.5

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In actual fact, most academic writers side with this contractual analysis.6 However, as the contract has seldom been studied systematically,7 it is useful to discover and define it more precisely.

10. The concept of the arbitrator's "status" is obviously not incorrect. The task of this private judge is too special to stem solely from the will of the parties. In order to benefit from the judicial power accorded to him by the national laws and courts, the arbitrator (and with him the whole of arbitration) operates in a legal and procedural framework that is not available solely to the parties and the judge that they provide themselves with. Moreover, this does not mean that this judicial task is necessarily subject to a given national law, since trends in the law and practice of international arbitration reveal that the conflictual method is on the wane and that a set of transnational substantive rules are emerging that are firm enough and sufficiently harmonised to constitute an adequate legal framework for this form of private dispute settlement. In other words, the fact that the international arbitrator has a status of his own simply means that the contract which is the source of the arbitrator's power cannot disregard the fundamental principles of this type of judicial dispute settlement, without, clearly - in the case of such distortion - ceasing to be subject to the law of arbitration.

11. Over the past few years, in various countries, established case law has nonetheless had the opportunity to recognise expressly the existence of such a contract between the arbitrator and the parties to the arbitration, and to draw various conclusions from this. This has occurred in England, for example, where the Court of Appeal has confirmed that by accepting his appointment the arbitrator undertakes contractually to act with due diligence, in consideration of remuneration,8 whereas an earlier judgment had field that by accepting his task, the arbitrator became an additional party to the arbitration agreement.9

Similarly, French case law has confirmed the existence of a contract between the arbitrator and the parties, and from this deduced that the arbitrator was civilly liable under the contract,10 or that the judge was prohibited from "breaking the contractual links" with the "validly constituted" arbitrators.11

12. National laws do not formally sanction - aside from the arbitration agreement (concluded between the parties to the arbitration alone) - a contract concluded between the parties and the arbitrator or arbitrators. Their caution can be explained. They thus avoid having to classify this contract, and having to settle its conditions and effects, hence adding a further stage and extra complication to the implementation of the arbitration.

13. Yet, in both law and practice, in all legal systems and under all arbitration rules, a contractual relationship between the parties and the arbitrator is established and performed gradually and informally. The scenario is as simple as it is unvaried. On the one hand the parties nominate the arbitrator or arbitrators: whatever the modalities of this nomination, the parties' intention to entrust the task of settling their dispute to given individuals is not in doubt. The fact that, in certain cases, a preconstituted third party or an institution is commissioned to [Page15:] make the final appointment or confirmation of one particular arbitrator or another is of little importance; they take this action on behalf of the parties, and the parties have agreed in advance that their "judge" should be selected indirectly, by the said agents. On the other hand, as nobody is ever bound to act as an arbitrator in relation to a given dispute, the arbitrator's consent is absolutely necessary. It is the acceptance of his task, which enables the final constitution of the arbitral tribunal.12 It is expressed either by the signature of a submission agreement, when the terms of reference have been drawn up, or at the time of any manifestation of the will of the prospective arbitrator to fulfil the task that the parties entrust to him.

14. This contract creates rights and obligations to the benefit and burden of the arbitrator and the parties. It is performed throughout the whole duration of the arbitral procedure. It ends, usually, by the completion of the arbitrator's task, in other words by the handing down of the arbitral award, which discharges the arbitrator.13 Exceptionally, the duration of the contract is extended if the arbitrator is entrusted with the power of interpreting or correcting material errors in his award. On the other hand, it is sometimes shortened, either by the parties withdrawing from the arbitral procedure (for example, by means of an agreed settlement), or for a reason stemming from the arbitrator himself (death, disqualification, resignation, challenge or removal).

15. What is the nature of this contract? Can it be "classified"? The interest of such a classification - dear to lawyers from the civil law countries - is first of all theoretical, in that it makes it possible to define the status of the arbitrator in the international commercial field. But it is also practical. As this contract is concluded gradually, without the backing of a single legal instrument expressly recording the parties' rights and obligations, it is useful to seek to attach it to a known model, so that, where applicable and necessary, it will be subject to the legal regime applicable to the contract so classified.

16. This contract between the parties and the arbitrator resembles an agency contract. Swiss academic writers in particular regard it as a type of agency, conferred by both parties jointly on the arbitrator.14 Moreover, Article 14 of the Swiss Concordat speaks of the arbitrators' acceptance of "their commission" ["mandat"] (whereas the German version of the same text uses the expression "Amt", which rather describes a function). It is true that under the Swiss Code of Obligations (Art. 394), the definition of the term "agency" is very wide, in that the agent undertakes "to manage the matter for which he is responsible or to render the services that he has promised". More generally, certain rules relating to the conclusion and termination of an agency are fairly broadly compatible with those applicable to the arbitrator's task. The agency is concluded intuitu personae; the agent may only be dismissed by both parties jointly. In addition, if French established case law regarding the "mandat d'intérêt commun" (agency of common interest) applies, unless the dismissal is justified by the agent's fault, the agent will be entitled to damages. So far as the agent is concerned, he may not resign his agency without indemnifying the principal for the detriment that such resignation would cause him.

Nonetheless, such a classification is arguable, since the very purpose of an agency is to grant the agent a power of representation. Yet, the arbitrator does not "represent" the parties, less still the party that appointed him; the power lie is granted is inherently "judicial". A careful distinction should be drawn between this power and prerogatives that the parties would be able to exercise themselves - for example by adding to or adapting the contract - and which, when they vest them in a third party, can actually be classed as an agency.15 In addition, without being in a subordinate position, the agent is, in [Page16:] fact, bound to follow the principal's instructions (Swiss Code of Obligations, Art. 397), and to account to him for his administration (French Civil Code, Art. 1993; Swiss Code of Obligations, Art. 400).

French case law has clearly refused to classify the arbitrator (whether domestic or international) as an agent of the parties.16 It takes the view that the judicial function vested in the arbitrator is exclusive of any dependence or representation vis-à-vis the parties or either of them.

17. The contract for hire of services (or work by contract agreement in the old-fashioned terminology of the French Civil Code) is certainly closer to the contract binding the arbitrator to the parties, because its aim is wider than that of agency. In fact, it is possible to analyse the arbitrator's task as the provision of a whole set of services of an intellectual nature, that he carries out in the interest of the parties, independently, in consideration of a fee. The arbitrator, like other legal professionals, or specialists in particular techniques, undertakes to provide the parties with the benefit of his experience and knowledge, and to carry out certain tasks: investigation of the case, hearing of the parties, etc., within a certain time limit. There is no doubt that these are services, which the arbitrator has contractually undertaken to provide.

A macro-economic analysis would lead to the same findings; the "market" of international arbitration brings together customers (the companies) and legal specialists (and possibly specialists in finance, construction, etc.) who compete one with another to supply their highly specialised services, either as independent self-employed professionals, or even as large firms of lawyers, accountants, or engineers.

From a legal point of view, this analysis remains inadequate, since it does not take into account the actual object of the arbitrator's task, which is judicial. Aside from the caricatural American advertisement offering "rent-a-judge" services, the settlement of a dispute is not an "undertaking" or a "work" as such. Admittedly, the arbitrator is bound to comply with the arbitration agreement and rules that the parties have adopted, but the parties are not allowed to not go so far as to give him "instructions" on the manner in which he is to conduct the proceedings, less still in relation to the direction or content of his decision.

In fact, although, from certain standpoints, the arbitrator is indeed in the contractual position of a service provider, the legal classification resulting from this is only of interest in those legal systems where service providers are subject to a modern legal regime. This is not the case of the French Civil Code, but the other, more recent Codes in the Germano-Roman family (German, Swiss, Italian, etc..) have gradually designed a stricter regime for them (for example, the Werkvertrag - service contract - of Article 611 of the German BGB). However, in view of the diversity of "undertakings" that it covers, this is far from giving the arbitration agreement a truly useful legal framework. In addition, as the status of the international arbitrator obviously has to aim for a global approach, shutting the relationship between the arbitrator and the parties into a predetermined contractual framework would seem to be far removed from the spirit of the common law systems, whose lawyers doubtless consider that this attempt at classification is a somewhat pointless operation. In addition, its consequence would be to make it useful, or even necessary, for this contract to be attached to a given national law. This is an additional factor of complication, and the determination of substantive rules - so common in international arbitration - is a method that is much to be preferred.

18. It will be facilitated if emphasis is placed on the particularities of the contract binding the arbitrator to the parties. Hence it is preferable to view it as a contract sui generis.

Indeed, the contractual relationship formed between the arbitrator and the parties cannot be categorised as a known type of civil contract. This contract contains the mixed characteristics [Page17:] of arbitration - contractual in source, judicial in object. Its judicial purpose must not be confused with the purely contractual effects that it engenders.17

Moreover, to concede that this contract is sui generis does not prevent its legal regime from being determined, or mean that it will vary at the whim of each case. In reality, its content has been stabilised over many years of practice, and the rules that national systems have been led to apply to it are broadly similar, as will be noted throughout our studies. Despite, or thanks to an increasing specificity, it, in its turn, has become a "named" contract.

19. For want of more appropriate terminology, certain authors call it a "contrat d'arbitrage" (contract of arbitration).18 Ought the German expression "schiedsrichtlichter Vertrag" (literally translated as "arbitrator's contract" - as distinct from the arbitration agreement: "Schiedsvertrag") to be preferred? It has its equivalent in Italian where academic lawyers call it the "contratto di arbitrato".19 This expression has the merit of indicating that the person of the arbitrator is at the heart of this contract, but it does not clearly show who the parties to it are. Other authors, supported by certain courts, view it as a "contract of investiture",20 for this term clearly shows the actual aim of the contract: the parties institute one or more arbitrators to settle their dispute, and the arbitrators undertake to exercise this power and fulfil this task.

Lastly, certain people prefer to go no further than the terminology of Roman law; this contract was then called the receptum arbitrii,21 because it was the contract whereby the arbitrator "received" the arbitration, in other words accepted his task.

20. In fact, the particularities of this contract between the arbitrator (all the arbitrators) and the parties (all the parties) can only result from a practical analysis of its contents, which will show the importance of the contractual component of the status of the arbitrator.

B. The effects of this relationship

21. This afternoon, a number of speakers will stress that arbitrators should benefit from similar protection than that accorded to judges. This protection is all the more necessary nowadays as litigious combat has intensified, and certain parties seek to destabilise the arbitrator by a variety of means, particularly in the course of the arbitration.

However, we must not let this socio-psychological background prevent us from singling out the elements of a balanced contractual status, which spares the arbitrator from being subjected to any type of harassment in relation to his obligations, while at the same time reminding him what these fundamental duties are.

The subject remains haphazard, for up till now international arbitration practice has been wary of offering full and balanced models of this contractual relationship between the parties and the arbitrator. The said elements are to be found in instructions to the arbitrator, in the usages of arbitration centres and in a number of provisions of their rules. More interesting are the Codes of Conduct or rules of ethical practice that the Bars or Bar Associations have adopted in relation to arbitrators' duties and rights.22

1) The arbitrator's obligations towards the parties

22. In the first place, it goes without saying that any arbitrator is bound to behave equitably and impartially, and to treat the parties on an equal footing throughout the whole duration of the procedure. He must also ensure that they are given every opportunity to assert their pleas. Such duties stem first of all from his status as a [Page18:] private judge, but they also represent precise contractual obligations that he is bound by as a direct result of accepting his task.

A number of arbitration rules mention this obligation,23 as do various codes of ethics.24 But such stipulations are not even necessary, because such behaviour is already imposed on arbitrators by international conventions, laws, and the national courts.

23. The second set of obligations on the arbitrator, though still relating to the conduct of the procedure, has a more direct impact on his contractual status: the arbitrator must fulfil his task within the legal or contractual time limits laid down for him.

In addition, and in any case, in accepting his task, he undertakes to fulfil it with due diligence. This rule is also a definite one, although it is seldom expressed in this form. It echoes the expression "reasonable time limit" imposed by the international conventions and declarations relating to human rights in the field of justice.

An arbitrator who is a member of an arbitral tribunal is also failing in his duty of due diligence if he refrains from taking part in the hearings or in the deliberations. If he were to seek to use this as a means of paralysing the procedure, particularly if this was in the interest of the party who nominated him, it would constitute a deliberate wrongful act.

24. The third set of obligations is complementary to the foregoing. However it is often stipulated expressly in arbitration laws or rules: the arbitrator must carry out his task until its completion, in other words until the final award is rendered. In consequence, from the moment that he accepts his task, in principle, he can no longer divest himself of it - in other words resign - at least, not without good reason.

Many legal systems have clearly adopted this view, in particular the following laws: French (Art. 1462 New Code of Civil Procedure), Italian (Art. 813 Code of Civil Procedure), Belgian (Art. 1689 Judicial Code), Dutch (Art. 1029.2 Code of Civil Procedure). Hence any arbitrator who comes to find the burden and length of his duties wearisome can be accused of irresponsibility or capriciousness. But the main aim of the rule is to combat a tendency towards delay which is not uncommon; an arbitrator feeling that he is in the minority in the tribunal resigns in the aim of preventing it from delivering an award that is unfavourable to the party who nominated him. It is for this reason that the Dutch Code and the UNCITRAL, Model law (Art. 14) specify that any resignation must be accepted, either by both parties, or by a predetermined third party, or by the supervising authority.25 The Swiss federal law does not cover this question, however academic writers consider that in accordance with the "general law of arbitration" (expressed by the Belgian and French texts cited above) "an arbitrator who has accepted his task must in principle conduct it until it is completed" and that "he can only divest himself of it for legitimate reasons".26 As another Swiss author has underlined, this view is perhaps too optimistic27 since a recent federal appeal court judgment28 has held that an award rendered by the two remaining arbitrators, in a case where the ICC had refused the third arbitrator's resignation, was irregular.

We shall see this afternoon that there are a variety of means whereby such conduct can be rendered ineffective. For the moment it is sufficient to point out that several sets of arbitration rules prohibit the arbitrator from untimely resignation.29 The most restrictive rules are certainly the Rules of the Irano-[Page19:] American dispute settlement tribunal, Article 13 § 5 of which significantly limits the arbitrator's right of resignation: he must remain a member of the tribunal in all the cases in which he has already taken part in a hearing on the substantive issues.

Naturally, provided he has legitimate reasons for resigning, for example if he is unable to continue his task, or if, through no fault of his own, a circumstance of a kind that would affect his independence vis-à-vis the parties arises, the arbitrator may resign, with or without the authority of the arbitration centre or his colleagues.

25. The arbitrator's fourth contractual obligation is his duty to respect the confidentiality of the arbitration. It is seldom stated expressly and in general terms. However, we should like to cite Article 35 of the AAA International Rules of Arbitration:

Confidential information disclosed during the proceedings by the parties or by witnesses shall not be divulged by an arbitrator or by the administrator. Unless otherwise agreed by the parties, or required by applicable law, the members of the tribunal and the administrator shall keep confidential ail matters relating to the arbitration or the award.

Like the AAA, the ICC also refers to the confidential nature of arbitration, but in its internal rules it only refers to it in relation to the work of the International Court of Arbitration, that is to say its permanent administrative body (Internal Rules of the Court of Arbitration, Art. 2).

The reticence of the various texts is of little importance. One of the fundamental principles - and one of the most definite advantages - of international arbitration is its confidential character. This is so true that it is imposed on the parties as well.30

2) The parties' obligations towards the arbitrator

26. First of all they are pecuniary.

Indeed, in order to carry out the services he has promised, the arbitrator will incur a variety of expenses, which he can obviously ask to have reimbursed, in ail circumstances. And above all, as he rarely carries out his task free of charge, he is entitled to ask the parties who request him to settle their dispute, for remuneration - in other words fees.

It is unnecessary to describe here the modalities for the reimbursement of expenses, calls for advances on costs, and the determination and payment of fees, which are mainly matters of practice.

Certain national laws settle these questions, such as the Italian Code of Civil Procedure (Art. 814). It firstly points out that the arbitrators are entitled to the reimbursement of their costs and to fees for the work carried out, unless they have waived them. It then goes on to specify that the parties are jointly bound to pay them, without prejudice to their rights of recourse one against the other. Lastly it adds that, if the parties do not agree to the calculation of the costs and fees that the arbitrators have carried out directly, the amount will be determined by the court.

Such principles are also liable to be applied outside the Italian legal context, and rules of arbitration, which lay down the most relevant provisions in this connection, generally take them into consideration.

Most institutional rules of arbitration lay down a scale of fees, which takes into account the commercial amount in dispute, and, possibly, the difficulty of the case and the time spent by the arbitrators in deciding it.31 Such scales, as well as the decisions taken for applying them by the centres' administrative structures, are obviously contractual in character.

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Impliedly, such payments lay down a fundamental principle, that is essential for safeguarding the independence of all arbitrators: prohibition of any unilateral financial arrangement between an arbitrator and the party who nominated him.32

It is less certain whether, if the parties so requested, a national judge could check and, where applicable, reduce the amount of the arbitrator's fees, if he considered they were excessive. It is true that several legal systems afford the courts such power in relation to remuneration fixed unilaterally by agents or contractors. But if the amount of the arbitrator's fees stems from the application of a scale, the parties are deemed to have known it and to have accepted it. Hence, in order to win their case they would have to maintain that the pre-established provisions of the standard form contract in question were imposed on them by an abuse of economic power... The argument has little chance of being convincing if they are international commercial operators, with long experience in the field of arbitration.

On the other hand, the arbitrator's fees may be reduced or refunded, in whole or in part, if he committed errors in the course of performing his duties. This is a consequence of the bilateral contractual nature of the arbitration agreement, and several French33 and Italian34 decisions have stated this expressly.

The final responsibility for the fees is decided by the arbitrator in his award. Most arbitration rules provide as follows:35 an order to pay all or part of the costs and fees of the arbitration is one of the usual heads of the award, which the arbitrators decide on the basic of the respective success and conduct of the parties to the arbitration.

However, the arbitrator may not only decide which of the parties shall bear the payment of his fees; he may also determine the amount of these fees in his award. The question that then arises is whether he can in this way award himself a right to recover any remuneration which he has not yet received, or, owing to res judicata authority and subsequent enforceability of the award, prohibit any subsequent challenge by a party of the amount thereof. The French courts have replied in the negative, holding that the arbitrator cannot be both judge and party at one and the same time 36

27. The parties have other obligations, of a moral character, towards the arbitrator. This service provider is in fact charged with rendering justice; he has to comply with the arbitration agreement and the applicable procedural rules, he is not subordinate to the parties in the conduct of the arbitration proceedings. Because of the judicial nature of his task, he holds appropriate prerogatives for conducting the procedure.

Correspondingly, the arbitrator has the right to meet with faithful and cooperative behaviour from the parties throughout the whole of the arbitration procedure. This principle goes without saying, even if it is not generally referred to in rules of arbitral procedure. This is regrettable, especially at a time when certain excesses are occurring.

Likewise, the arbitrator has the right to continue his task until it is completed. He may only be dismissed with the unanimous agreement of the parties.37 It is true that if they agree to terminate the arbitration, the arbitrator cannot oppose this. On the other hand, he may not be a plaything at the whim of one party alone, and in particular may not be dismissed unilaterally by the party who nominated him. This role is essential for safeguarding the arbitrator's authority and independence in relation to that party.

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II. The relationship between the arbitrator and the arbitral institution

28. When a permanent arbitration centre has been chosen to administer the procedure, the contractual relationship existing between the litigants and the arbitrator becomes triangular.38

29. As we have seen, a contract already exists between the litigants and the centre, whereby the former acknowledge that the arbitration institution has certain prerogatives, whilst the institution is bound to carry out certain actions in relation to the parties.

We also know that in principle, arbitration centres do not themselves act as arbitrators; they solely provide what French case law calls the "policing of the arbitration procedure",39 or what Swiss case law refers to as "the administration of the procedure".40

This contract between the parties and the administrative centre ressembles an agency, since the centre is charged with carrying out a certain number of legal acts,41 in the name of the litigants. It is also a contract for the hire of services, since the centre undertakes to perform various material and intellectual services listed in its rules. The said institutional functions are accepted by the parties when they choose the arbitration institution in their arbitration clause, thereby referring to the said rules, impliedly at least.42

30. We will now deal with the other relationship, the one binding the arbitration centre and the arbitrator. It is more difficult to define than the two others. By endeavouring to remove a little of its mystery and its subtlety, I will seek above all to provoke future discussion.

31. Firstly, one type of situation that should not be overlooked is the case where the arbitration centre has confined itself to drawing up a list of people who may be appointed as arbitrators in application of its rules. Registration on such a list of arbitrators does not create any right for any individual featuring on it, nor any obligation for the institution to actually appoint him as an arbitrator one day or another. And none of these individuals is bound to accept his appointment, should he be proposed.

32. It is only from the moment of his acceptance that the prospective arbitrator and the institution actually enter into relations. They then have certain rights and obligations one towards the other, which continues throughout the whole of the arbitration procedure that is set in place. It is difficult to dispute the existence of such rights and obligations (A). On the other hand, it is less clear whether this relationship between the arbitrator and the institution is contractual in character (B).

A. Content of the reciprocal rights and obligations of the arbitrator and the arbitration centre

33. As regards the centre's obligations towards the arbitrator, the former is bound to carry out its functions of organisation, administration and supervision of the arbitral procedure as defined by the arbitration rules laid down by the centre itself.

In addition, from the moment when the arbitration institution recognises that a person acts in the capacity of an arbitrator within the terms of its rules, it must treat him as such and respect the arbitrator's distinctive powers: power to rule on his own jurisdiction, to determine the rules of the procedure and to conduct it, etc.

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More generally, and even where there is no special provision in the arbitration rules, it has to be acknowledged that the arbitration centre has the duty to provide the arbitrator with its administrative and technical assistance so as to facilitate completion of his task. If the arbitrator has little experience of the conduct of the institutional arbitration concerned he will sometimes need information or advice. As a general rule, the centre will provide assistance in the material organisation of the hearings, seeking the help of interpreters, and possibly secretarial tasks, etc.

34. So far as the arbitrator is concerned, in accepting his task, he agrees to carry it out under the auspices of and in compliance with the centre's rules. He guarantees his independence of mind and his availability to the centre as well as to the parties. He consents to the centre exercising the functions resulting from its rules (power of confirmation, challenge, dismissal...). He also consents to the duration of his task being determined and extended by the centre, to the proceedings themselves being "supervised" by the centre's relevant departments and, in the case of the ICC, for example, to his draft award being scrutinised and approved by the institution.

He also agrees that the reimbursement of his expenses, the amount of his fees and the modalities relating to their payment will be decided and fixed by the centre, in accordance with the powers accorded to the centre by the rules of arbitration.

35. Hence there is little doubt that the arbitration centre and the arbitrator are bound by certain obligations one towards the other, and that each of them can demand of the other that certain rights be respected.

All that remains is to determine the legal nature of this relationship.

B. Nature of the relationship linking the arbitrator and the arbitration centre

36. Is it a contractual one?

37. This question has given rise to doubts. It is noted in fact that the powers of the centre are Chose that the litigants have conferred on it, and that it acts basically in their name, in the capacity of an agent, without personally entering into a contract. Indeed, an agent does not become a party to a contract that binds his principal to a third party.

38. This analysis is correct in the case where the litigants have only charged the arbitration centre with the tasks of appointment (or confirmation) and possibly the challenge or replacement of the arbitrator. This is the case, for example, when the AAA or the ICC act as appointing authority in the context of the UNCITRAL rules of arbitration.43

In such a case no contract is concluded between the institution and the arbitrator that it appoints. The task of acting as a pre-constituted third party is a simple mandate conferred on the centre in question by the litigants. The centre is only their representative (their joint agent) in its functions of appointment or challenge; it does not enter into any personal obligation towards the arbitrator, nor does the arbitrator have to render account to it in any way. In the conduct of the procedure, the arbitrator's only relationship is with the litigants.

39. But this is not the commonest case. Generally, as has been pointed out, the arbitration institution carries out an ongoing task of administration and supervision of the arbitration procedure, during which it has constant dealings with the arbitrator.44 These are functions that are peculiar to the centre and, if the litigants have agreed to entrust these tasks [Page23:] to it, the arbitrator has also consented to their being exercised by this institution. Moreover, certain of these powers could not be exercised by the litigants: you only have to think, for example, of the institution's scrutiny and approval of the draft award!45 The modalities for exercising these prerogatives, laid down in the arbitration rules, are generally discretionary. And when American case law extends the immunity enjoyed by arbitrators to arbitration institutions,46 the quasi-judicial powers that it thus confers upon them can only be the powers that are peculiar to the said institution.

40. Accordingly the relationship between the arbitrator and the arbitration centre clearly seems to be based on a contract,47 even if it is a contract that is not clearly defined and less "characterised" than those previously analysed.

41. This contract results from the expression of a twofold consent: the consent of the centre which appoints or confirms the arbitrator and, by sending him a copy of its rules, informs him of the functions lie will carry out in the course of the said procedure; the consent of the arbitrator when lie reads the said rules and agrees to fulfil his task in this context and under the centre's auspices.

42. It is an innominate contract, in which each party, separately, undertakes to provide and does provide the other with intellectual services. Each also cooperates with the other to ensure that the arbitration the litigants have asked them to conduct progresses to a successful conclusion. Basically, it is in the interest of the litigants that the arbitrator and the centre exercise their procedural functions and are led to cooperate.

43. In any case, the first step in assessing whether the arbitrator and the centre have performed their respective obligations satisfactorily is to refer to the applicable arbitration rules, which define the roles of the arbitrator and the centre.

44. One final comment, ending in a wish.

Without here emphasizing the arbitrator's claim to immunity and - insofar as it is recognised - that of the arbitration institution, it must not be forgotten that the arbitrator's task is judicial in character and that the purpose of the arbitration centre's activity is to encourage its satisfactory completion. In such an area, the assessments of each, in the conduct and administration of the arbitral procedure, are or should remain both cautious and final; there is very little room for internal quarrels and even less for recourse to claims for liability. Fortunately, there are very few examples of these in present day court proceedings, and I hope that our discussions today will not disappoint this optimism.

1
The arbitrators' independence towards the parties is not the subject of the present study. This question was examined at a previous colloquium organised in Paris in 1988 by the same three Centres: See ICC, The Arbitral Process and the Independence of Arbitrators, ICC Publishing, 1991.

2
With the sole notable exception of American practice (See in particular the concept of the non-neutral arbitrator of the AAA/ABA Code of Ethics, canon VII), all national legal systems require the same independence of spirit of the arbitrator nominated by a party as is required of other arbitrators. In particular, the said co-arbitrator must not communicate directly with the party who nominated him, in the course of the arbitral procedure.

3
Ph. Fouchard "Les institutions permanentes d'arbitrage devant le juge étatique (à propos d'une jurisprudence récente)", Rev. arb., 1987, p. 225, esp. pp. 248 et seq., and note Rev. arb., 1988, p. 674; Ch. Jarrosson, "Le rôle respectif de l'institution, de l'arbitre et des parties dans l'instance arbitrale", Rev. arb., 1990, p. 381.

4
M. Mustill & S. Boyd, Commercial Arbitration, 2nd ed., 1989, pp. 220 et seq.

5
Ibid., pp. 222 et seq.

6
See, among the vast body of literature in England: A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration, Sweet & Maxwell, p. 209; M. L. Smith, "Contractual obligations owed by and to arbitrators: model terms of appointment", Arbitration International, 1992, p. 17; in Germany: B. von Hoffmann, "Die international Schiedsrichtervertag ( eine kollisionsrechtliche Skizze", Festschrift für Ottoarndt Glossner zum 70. Geburtstag, Heidelberg, 1993, p. 143; in Italy: G. Mirabelli, "Contratti nell'arbitrato (con l'arbitrato; con l'instituzione arbitrale", Rassegna dell'arbitrator, 1990 (1-2), p. 3 and the references; in Belgium: M. Huys & G. Keutgen, L'arbitrage en droit belge et international, 1981, No. 174; in France: M. de Boisséson, Le droit français de l'arbitrage interne et international, GLN Joly, 1990, pp. 174 et seq.; pp. 575 et seq.; in comparative law: R. David, L'arbitrage dans le commerce international, 1982, No. 292 et seq., E. Gaillard, "Les manoeuvres dilatoires des parties et des arbitres dans l'arbitrage commercial international", Rev. arb., 1990, p. 759, esp. p. 792.

7
See esp. Franz Hoffet, Rechtliche Beziehungen zwischen Schiedsrichter und Parteien, Zurich, 1991; A. Ditchev, "Le 'contrat d'arbitrage'( Etude sur le contrat ayant pour objet la mission d'arbitrer" Rev. arb., 1981, p. 395, and G. Mirabelli, Art. cited above.

8
K/S Norjahl A/S v. Hyunday Heavy Indsutries Co. Ltd, [1991] Lloyd's Rep., p. 524.

9
Cie européenne de Céréales SA v. Tradax Export SA [1986] Lloyd's Rep., p. 301.

10
TGI Paris, 13 June 1990, Gaz. Pal. 1990. Som. p. 417 and Paris, 22 May 1991, Bompard, unpublished.

11
Paris, 4 May 1988, République de Guinée, Rev. arb. 1988, p. 657, 2nd decision, note Ph. Fouchard.

12
In this sense in particular, Article 1452 of the French New Code of Civil Procedure (NCPC).

13
In this sense in particular, Article 1475 of the French NCPC.

14
P. Jolidon, Commentaire du Concordat suisse sur l'arbitrage, ed. Staempfli, Berne, 1984, p. 231. P. Lalive, J-F. Poudret, Cl. Reymond, Le droit de l'arbitrage interne et international en Suisse, 1989, p. 332.

15
Regarding these institutions, which are close to but different from arbitration, see Ch. Jarrosson, La notion d'arbitrage, no. 2 et seq., 302 et seq., 685 et seq.

16
TGI Paris, réf., 22 March 1983, Rev. arb., 1983, p. 479, 2nd decision, note B. Moreau; TGI Paris, 28 March 1984, Raffineries d'Homs, Rev. arb., 1985, p. 141, 1st decision; TGI Paris, 13 June 1990 and Paris, 22 May 1991, Bompard, cited above; Paris 24 March 1992, Pelfanian, unpublished.

17
See in this sense, F. Hoffet, op. cit., supra note 7.

18
In this sense, A. Ditchev, Art. cited above, Rev. arb., 1981, p. 397.

19
In this sense, G. Mirabelli, article cited above.

20
In this sense, M. de Boisséson, Le droit français de l'arbitrage interne et international, 1990, pp. 175 et seq.; pp. 575 et seq.; also in this sense, TGI Paris, 13 June 1990 and Paris, 22 May 1991, Bompard, cited above.

21
R. David, L'arbitrage dans le commerce international, n° 267, p. 292; A. Foustoucos, L'arbitrage interne et international en droit privé grec, Lib. techn., 1976, n° 149: P. Jolidon, op. cit., pp. 232 et seq.; P. Lalive, J.-F. Poudret & Cl. Reymond, op. cit., pp. 92 et seq., pp. 332 et seq.

22
For example the Rules of Ethics for International Arbitrators of the International Bar Association, 1987.

23
UNCITRAL Rules, Art. 15; Italian Arbitration Association Rules, Art. 21; Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Art. 16.

24
IBA Rules, Art. 1.

25
E. Gaillard "Les manoeuvres dilatoires des parties et des arbitres dans l'arbitrage commercial international", Rev. arb. 1990, p. 759.

26
P. Lalive, J.-F. Poudret, Cl. Reymond, op. cit., p. 333.

27
F. Knoepfler, comment under Trib. féd. suisse, 30 April 1991, Rev. suisse. dr intern. dr. eur, 1993, p. 197, esp. p. 192.

28
Cited in the preceding note, and also published, ATF 117 I at p.166, JT 1992 I p. 313, Bull. ASA, 1992, p. 259.

29
In this sense, the following rules: ICSID, Art. 8, which entrust the arbitral tribunal with the task as to whether or not to accept the resignation of the arbitrator acting for the party; ICC, Art. 2.10 which provides that the arbitrator's resignation must be accepted by the Court; CEPANI, Art. 18.4, which provides that the arbitrator's departure must be "duly accepted".

30
J. Paulsson & N. Rawding, "The Trouble with Confidentiality", ICC ICA Bull. , May 1994, p. 48.

31
ICC Internal Rules, Art. 18, and scale of fees; UNCITRAL Rules, Art. 39, which, in the absence of a scale, specifies that the amount of the fees must be reasonable; AAA Internal Rules, Art. 33 et seq.

32
In this sense, expressly, the IBA Rules of Ethics (cited above).

33
TGI Paris, 9 Dec. 1992, Société Annahold B. V. and TGI Paris, 12 May 1992, Société Raoul Duval, Gaz. Pal. 1993, Summary, p. 578.

34
Italian Arbitration Association, Art. 12 para. 3; Milan Chamber of Arbitration, Art. 22 para. 6.

35
UNCITRAL, Art. 40; ICC, Art. 20.1.

36
Cass. civ. II, 28 Oct. 1987, Rev. arb., 1988, p. 149, note Ch. Jarrosson; Cass. civ. 11, 10 Oct. 1990, Bull. civ. II, No. 187, p. 95; Journ. not. av., 1991, p. 729, note P. Laroche de Roussane.

37
According to the wording of Article 1463.2 French NCPC.

38
In this sense, see G. Mirabelli, Art. cited above; A. Ditchev, Art. cited above.

39
TGI Paris, 28 Match 1984, Raffineries d'Homs, Rev. arb., 1985.141, TGI Paris, 28 Jan. 1987, République de Guinée, Rev. arb., 1987, p. 371, 3rd decision.

40
Zurich Obergericht, 26 Jan. 1987, ASA Bull. 1987, p. 6

41
Included among such legal acts are, the payment to the arbitrator of his costs and fees, with a view to which the parties have remitted advances to the centre; as the said remittance did not have as its principal aim the conservation of the said sums but rather the performance of the said task, we do not view the said operation as a separate contract of deposit. The definition of agency will be retained: in this sense Cass. coin., 1 June 1993, Bull civ., IV, No. 221, p. 158; Gaz. Pal., 29 Aug. 1995, Summary, comments p. 15, obs. B. Moisson de Vaux.

42
Paris, 4 May 1988 and TGI Paris, 23 June 1988, République de Guinée, Rev. arb., 1988, p. 657, note Ph. Fouchard.

43
AAA, Procedures for Cases under the UNCITRAL Arbitration Rules; ICC, The ICC as Appointing Authority under the UNCITRAL Arbitration Rules, ICC publication No. 409, 1983.

44
See, however, disputing ( in our view wrongly this "power of action" of the arbitration centre after the setting up of the arbitral tribunal: Paris, 18 Nov. 1987 and 4 May 1988, République de Guinée, Rev. arb., 1988, p. 657, note Ph. Fouchard.

45
ICC Rules of Arbitration, Art. 21.

46
Latterly, Thiele v. RML Realty Partners, 18 Cal. Rptr: 2d 416 (Cal. Ct. App. 1993); Boraks v. AAA, 517 N.W. 2d 771 (Mich. Ct. App. 1994).

47
This was the virtually unanimous view of the Working Party referred to above: see Article A.I, para. 2 of the "Principes élémentaires d'un statut de l'arbitre international", cited above.