Looking for the rights and duties of arbitrators is something like a treasure hunt. They can be found, to a limited extent, in the thickets and underbrush of the rules of arbitral institutions.1 Turning over the rocks in national statutes and court decisions also leads to some clues.2 For arbitration practitioners in the United States, however, there is a map that provides a starting point for the hunt: the Code of Ethics for Arbitrators in Commercial Disputes prepared in 1977 by a Joint Committee of the American Arbitration Association and the American Bar Association.3

The arbitrator's rights and duties should be viewed as somewhat different from arbitral jurisdiction or powers - a subject with its own voluminous literature.4 While recognizing that distinctions in this area are debatable, I would like to focus on the type of rights and duties that most often are classified as aspects of arbitrator ethics. These are the principles that tell us what the arbitrator should do, typically in situations where there is no express rule to apply and the principle is inherently difficult to codify in detail.

There is, of course, a debate about the extent to which one should attempt to codify the arbitrator's ethical obligations.5 But American lawyers have determined to do so, at least for arbitrators in U.S. domestic commercial arbitrations,6 and have approached the task by formulating a set of very general principles called "Canons", each followed by a series of [Page25:] slightly more specific descriptions of obligations. The six Canons of the American Code of Ethics comprise a list of duties all built on the word "should":

Canon I: An Arbitrator Should Uphold the Integrity and Fairness of the Arbitration Process.

Canon II: An Arbitrator Should Disclose Any Interest or Relationship Likely to Affect Impartiality or Which Might Create an Appearance of Partiality or Bias.

Canon III: An Arbitrator in Communicating With the Parties Should Avoid Impropriety or the Appearance of Impropriety.

Canon IV: An Arbitrator Should Conduct the Proceedings Fairly and Diligently.

Canon V: An Arbitrator Should Make Decisions in a Just, Independent and Deliberate Manner.

Canon VI: An Arbitrator Should Be Faithful to the Relationship of Trust and Confidentiality Inherent in that Office.

In addition, the American Code of Ethics includes a seventh Canon entitled "Ethical Considerations Relating to Arbitrators Appointed By One Party". After extensive debate, the drafters of the Code accepted that, in certain types of arbitration, it has been the practice that two arbitrators appointed by the parties are not considered to be neutral and are expected to serve as advocates, at least to some extent, for the parties appointing them. The Code of Ethics therefore recognizes the concept of a "non-neutral arbitrator" who may be "predisposed" toward one party and for whom there are various exceptions to the general ethical considerations. The Code of Ethics states, however, in an introductory note to this list of exceptions, that

in cases conducted outside the United States, the applicable law might require that all arbitrators be neutral. Accordingly, in such cases, the governing law should be considered before applying any of the following provisions relating to nonneutral party-appointed arbitrators.

There is also a codification of ethical principles designed for international commercial arbitration: the International Bar Association's Ethics for International Arbitrators of 1987.7 Although drafted by many hands, it, too, is a common law-inspired product. Unlike the American Code of Ethics, the IBA Ethics concentrates in somewhat more detail on the definition of "bias" and disclosure obligations, as well as on mechanics concerning communications with parties. On the other hand, it says little about some of the other obligations it mentions, which the American Code elaborates in sub-paragraphs.

But the topic today includes a subject not truly addressed by either of these two sets of ethical principles: the rights of the arbitrator within this framework of "shoulds". The AAA/ABA Code of Ethics and the IBA Ethics speak loudly of the duties of the arbitrator, but they say relatively little about an arbitrator's rights. I would like to consider further what some of those rights might be. My list is illustrative, rather than exhaustive, and entirely personal; but it does reflect certain issues that are very much alive in the courts and the arbitration literature.

The following is my personal list of arbitrator "rights", each corresponding to some degree to the Code's six categories of obligations:

1. The right to limit disclosure about the arbitrator's background to what is reasonable under the circumstances.

2. The right to reasonable flexibility in dealing with a party who may appoint the arbitrator.

3. The right to conduct the arbitral proceedings in what the arbitrator considers a sensible way.

4. The right to decide the case on the basic of the arbitrator's own assessment of the necessary issues and proof.

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5. The right of an arbitrator in the minority to write a dissent from an award.

6. The right of the arbitrator to tell appropriate "war stories".

There is no document proclaiming these rights, and few of them can be found in any institution's rules. They are, nevertheless, inherent in the arbitrator's role. They arise from the interplay between some of the major factors that shape that role: (i) the arbitrator's quasi-judicial responsibilities, (ii) the autonomy of the parties to agree on how their dispute is to be handled, and (iii) the arbitrator's responsibility to the parties and to the process of arbitration for efficient results. They are all aspects of the arbitrator's inherent right to ask that those who review his or her conduct incorporate in the ethical standards a "rule of reasonableness" permitting the arbitrator to exercise responsible, sound judgment.

Each of these rights on my list can be juxtaposed with one of the arbitrator's specific duties, and each of them exists in tension with that duty. For example, one of the Canons of the AAA/AB A Code of Ethics calls for appropriate arbitrator disclosure, and this is a subject to which the IBA Ethics also devotes considerable attention. Arbitrators obviously have duties in this area, but do they have corresponding rights? Is there, for example, a related right not to be required to search in every conceivable place for a possible conflict and thus not to disclose certain arguably significant matters?

Another important subject, covered by Canon III of the American Code of Ethics, is limitations on communication between the arbitrator and the parties. Here the duties are set forth, but the rights are relatively unarticulated; yet many would maintain that corresponding rights also exist. Does an arbitrator, for example, have a right to participate in a pre-appointment interview with one of the parties? The IBA Ethics answers this in the affirmative, so long as the merits of the matter in dispute are not discussed, and the portion of the AAA/ABA Code of Ethics addressed to "non-neutral" arbitrators does the same ( and goes further, The American Code of Ethics, however, does not expressly address the subject in the context of a tribunal including two neutral party-appointed arbitrators.

To take another example, Canon IV of the Code of Ethics requires that an arbitrator conduct the proceedings "fairly and diligently". But does an arbitrator, consistent with this duty, have a right to take an activist role in shaping the procedures as he or she wishes? How active? May an arbitrator override the joint procedural decisions of both parties?

Another Code obligation calls for an arbitrator to make decisions in a "just, independent and deliberate manner". Is it consistent with this duty for an arbitrator to decide a case on the basis of the arbitrator's own assessment of the proper issues? Does the arbitrator have a right to inject issues that neither party chooses to present or that both parties simply overlook?

A very basic Canon of the Code of Ethics calls for an arbitrator to uphold the integrity and fairness of the arbitration process. Is it consistent with this duty for an arbitrator to dissent from a majority's award? Does the arbitrator have the right to use the dissent to set out in detail a basis on which an attack might be made seeking to set aside or defeat enforcement of the award in hopes of bringing about that result?

The final Canon of the Code of Ethics imposes a duty to maintain the confidentiality "inherent in [the arbitrator's] office". Does the arbitrator nevertheless have a right to comment, in appropriately generic terms, about proceedings in which the arbitrator has participated or is participating? May arbitrators, in other words, tell war stories?

Each of the major ethical duties, I suggest, can be viewed as carrying with it as a limiting principle one or more "rights" of the arbitrator intended to keep the obligation within the bounds of reasonableness. The following is a closer look at six of those obligations, considered together with a limiting right.

I. Arbitrator disclosure and its limits

Ethical codes and commentators agree that disclosure of matters that might be seen as potential conflicts of interest is required and ideally should be maximized. Matters that are [Page27:] disclosed and not made the subject of irnmediate objection by a party normally are waived. The advice to the arbitrator is unanimous: when in doubt, disclose.8

But when legislators and courts begin to prescribe specific matters that must be disclosed, if they exist, the issue becomes more complicated. A potential arbitrator may be forced to undertake significant research to look for potential "conflicts" of which he or she is not even aware. In an age of large, multi-office law firms and attorneys who make career changes with some frequency from one firm to another, this has become a problem.

The State of California has been particularly strict in policing the arbitrator's duty to make disclosures, and in the process its courts sometimes intrude upon what I submit is the arbitrator's right to limit his or her efforts to a reasonable inquiry and a reasonable disclosure and go no further. In one case, after a panel of three arbitrators had ruled in favor of one party, the loser learned that one of the arbitrators previously had been a partner in a law firm that represented interests affiliated with the winning side. Two years of litigation followed, in which the past professional relationships of that arbitrator were subjected to extensive inquiry.

In fact, as the courts eventually determined, the arbitrator had never met the party in question, never worked on any of its matters and did not know that the party had been a client of his former firm - which the arbitrator had left and which he was no longer in a position to ask for a conflicts check. Nonetheless, the trial court held that this was a failure to disclose facts the arbitrator should have discovered and that the award should be vacated. Fortunately, a California court of appeal eventually ruled otherwise.9

While the details are debatable and have been debated within ICC circles and elsewhere,10 it seems clear that an arbitrator should have the right to be reasonable in the extent of his or her enquiries and disclosures. Disclosure should be encouraged; but codification of specific matters that must be researched and discovered so that they can be disclosed may take a good principle too far and infringe an important right.

II. Communications with the parties

Canon III of the AAA/ABA Code of Ethics admonishes the arbitrator to "avoid impropriety or the appearance of impropriety" in communications with the parties. The discussion of various examples under that heading is uncontroversial, dealing with evenhandedness after the Tribunal has been appointed. However, nothing under Canon III addresses either (1) communications between parties and candidates for appointment as arbitrators before the appointment, or (2) post-appointment communications between parties and their appointees about the selection of a third arbitrator.

The IBA Ethics is more explicit about both of these matters, providing in Section 5.1 that a person approached to serve as an arbitrator "may also respond to enquiries from those approaching him, provided that such enquiries are designed to determine his suitability and availability for the appointment and provided that the merits of the case are not discussed". Section 5.2 goes on to add that: "If a party-nominated arbitrator is required to participate in the selection of a third or presiding arbitrator, it is acceptable for him (although he is not so required) to obtain the views of the party who nominated him as to the acceptability of candidates being considered."

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The AAA/ABA Code of Ethics does address the matter of party/arbitrator communications, but in a rather surprising way: it approves such ex parte communications in the case of "non-neutral" party-appointed arbitrators, whom the Code says "may consult with the party who appointed them concerning the acceptability of persons under consideration for appointment as the third arbitrator" and also may communicate with the party who appointed them at any time "concerning any other aspect of the case", provided that they first inform the other arbitrators and the parties that they intend to do so or advise of prior communications at the first hearing or other meeting of the parties with the arbitrators.11

One might infer from these provisions that in America only the "non-neutral" arbitrator has a right to consult and that the general practice in America is for neutral arbitrator candidates or arbitrators to have no ex-parte contacts, even when they are party-appointed. But that is not the case. Practice actually corresponds more closely to the IBA Ethics: persons being considered for appointment often meet with representatives of the party considering making the appointment to learn the subject matter of the case, to ascertain what the time and other requirements of service might be, and to answer general questions from the party's counsel that legitimately might go to the issue of the candidate's suitability. When required to play a role in the selection of the third arbitrator, they do so. However, they ordinarily do not discuss the merits of the matter with the appointing party.12

Courts in the United States continue to take quite differing and unpredictable views of ex parte discussions with an arbitrator. In one case in a federal court in Connecticut, the judge disqualified an arbitrator who met with representatives of the party that had appointed him, evidently saw a document relating to the case and engaged in some degree of discussion about the merits.13 In a more recent case in another part of the country, however, a federal appellate court found nothing improper in contacts between an arbitrator and an appointing party. In that action, a party-appointed arbitrator allegedly assisted the party in preparing its case by "attending and participating in meetings" with witnesses, suggesting lines or areas of testimony, helping select one of the party's consultants and advising an expert witness on how to improve a chart related to the expert's testimony. Surprisingly, the court labeled all of this "not only unobjectionable, but commonplace".14

Both of these cases involved domestic U.S. arbitrations, where the "non-neutral" appointee continues to have a role. There is reason to believe that a U.S. court might hold arbitrators in an international commercial dispute sitting in the United States to a higher standard of neutrality, with consequences for limits on party communications. Some arbitration rules and much arbitration literature in the U.S. emphasize the requirement that a party-appointed arbitrator be neutral in such an international case. However, the AAA/ABA Code addresses only proceedings occurring abroad; and there is no case law in the United States clearly establishing the guidelines for ex parte communications in an international proceeding sited in the U.S.

If the arbitrators are entirely neutral, does that preclude any ex parte contact? The case law also leaves confused the question of the proper scope of an interview, if any, between a prospective arbitrator to be appointed as a neutral and the potential appointing party's representative. There are good reasons why an [Page29:] arbitrator might wish to be assured of the right to have such an interview: to determine whether the matter is something he or she appropriately can and should undertake, and to learn enough to be able to evaluate the scope of potential disclosures and possible disqualifying factors. It is also entirely proper that an arbitrator charged with a role in selecting the chairman might wish to discuss the names of candidates with a party.

One set of arbitral rules, those of the World Intellectual Property Organization, does address the issue of pre-appointment communications. Article 21 provides:

No party or anyone acting on its behalf shall have any ex parte communication with any candidate for appointment as arbitrator except to discuss the candidate's qualifications, availability or independence in relation to the parties.15

However, the WIPO Arbitration Rules do not expressly address the matter of discussion of third arbitrator candidates.

It would be helpful if there were better evidence that such a right to non-merits communications exists, so long as it is used reasonably and responsibly, and that this extends to discussion of third arbitrator candidates.

III. Fairly conducting the proceedings and the arbitrator's right to take the lead

There can be no argument with the proposition that "an arbitrator should conduct the proceedings fairly and diligently". Under the AAA/ABA Code of Ethics, this is one duty that is recognized to be balanced by an arbitrator's right to take the initiative in conducting those proceedings. In the explanatory material under Canon IV of the Code, for example, paragraph "G" states:

When an arbitrator determines that more information than has been presented by the parties is required to decide the case, it is not improper for the arbitrator to ask questions, call witnesses, and request documents or other evidence.

This is also an area in which arbitral rules are directly relevant. The American Arbitration Association's International Arbitration Rules, for example, provide in Article 16(1):

Subject to these rules, the tribunal may conduct the arbitration in whatever manner it considers appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportune to present its case. (Emphasis added.)16

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Similarly, the ICC's Rules of Arbitration provide in Article 14(1):

The arbitrator shall proceed within as short a time as possible to establish the facts of the case by all appropriate means. After study of the written submissions of the parties and of all documents relied upon, the arbitrator shall hear the parties together in person if one of them so requests; and failing such a request he may of his own motion decide to hear them.

In addition, the arbitrator may decide to hear any other person in the presence of the parties or in their absence provided they have been duly summoned.

However, ICC Rule 11 qualifies arbitral discretion by stating that, as to procedural matters or where the ICC Rules are silent, the governing procedures shall be "any rules which the parties (or, failing them, the arbitrator) may settle..." (emphasis added).

The ICSID Arbitration Rules are rather more specific regarding mandatory procedures, providing for a preliminary procedural consultation (Rule 20), a pre-hearing conference (Rule 21), and specific written (Rule 31) and oral (Rule 32) procedures. The ICSID Rules make the Tribunal the judge of the admissibility of evidence and its probative value and direct the parties to cooperate with the Tribunal in the production of evidence (Rule 34). While preserving significant flexibility for the Tribunal, these rules nevertheless appear to place greater stress on party autonomy. In particular, Rule 20(2) states:

In the conduct of the proceeding the Tribunal shall apply any agreement between the parties on procedural matters, except as otherwise provided in the Convention or the Administrative and Financial Regulations.

The UNCITRAL Model Law takes a similar view, stating:

Article 19. Determination of Rules of Procedure

(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

Other provisions of the Model Law, too, emphasize that any agreement of the parties will override both its default provision and the arbitrator's decision on procedural issues.

The arbitrator has an ethical duty to be fair and diligent in all procedures, tempered by a wide discretion regarding how to perform that duty. Arbitrators' styles surely will differ, with some being more "activist" than others. There is a natural tension, however, between party autonomy and the arbitrator's right to determine the procedure in a manner he or she deems best.

But may the arbitrator impose procedures that both parties say they do not wish to follow? There are stories of arbitrators who have decided, for example, to hold proceedings in exotic locations, to subject the parties to extremely stringent timetables, and otherwise to override the objections of both parties and impose their own procedural preferences. Their rationale is that they are acting in the true best interests of the parties, whatever the lawyers might think, by moving the proceedings forward in what experience has taught them is the most efficient manner.

The ICC Rules evidently say "no" to this approach: the governing procedures shall be those settled by the parties (or, failing them, the arbitrator).17 Similarly, under the ICSID Rules, parties may point to the express language of Rule 20(2), specifying that ordinarily the Tribunal shall "apply any agreement between the parties on procedural matters".

It would seem prudent for the arbitrator to follow procedures to which both parties have agreed whenever possible, even when operating under more flexible provisions such as the [Page31:] AAA's International Rules. However, it seems implicit in those Rules that an arbitrator has the right, to be exercised prudently and presumably not frequently, to impose procedures in the interests of expedition and fairness, even when both parties (or, more likely, both sets of counsel) may wish some other procedures.18

I would advocate the existence of such a right for the arbitrator to lead - even lead firmly, when necessary - in establishing the arbitral procedures over the heads of counsel on both sides. The arbitrator does not have a judge's power to regulate procedures unilaterally, nor should he or she forget that party autonomy may be the most important arbitral principle of all. The scope for persuasion by the arbitrator before making a ruling is large, and the need to impose procedures thus should be rare. But it is possible - at least for one with a common law background - to imagine situations in which counsel for both sides may slide toward extended and acrimonious evidentiary procedures that could be shortened or avoided by an arbitrator who was prepared to "just say no". This is an important right, one to be protected.

IV. Just and independent decisions

The arbitrator's rights in respect of substantive rulings also are not entirely clear. An arbitrator is obliged, under Canon V of the Code of Ethics, to "make decisions in a just, independent and deliberate manner". However, the Code of Ethics gives relatively little guidance about how this should be done. Of course, an arbitrator should engage in "careful deliberation" and decide only the issues submitted for determination, doing so (as the Code goes on to elaborate) "justly, exercising independent judgment".

But is it "just" for an arbitrator to resolve a matter in a manner other than the way it has been presented by the parties? A first hypothetical involves the arbitrator who may see an issue to be resolved that the parties have not presented. The issue may have been overlooked, or the parties may have chosen for their own reasons not to present it. Or suppose, for example, that both parties agree that the proper interpretation of initial issues arising under a contract is resolved in a certain way, but that subsequent issues that arise beyond their consensus must be decided. Is the arbitrator free to exercise a right to look at the question entirely differently? May he or she "go behind" the parties' agreed view about the preliminary issues and impose a different construction on the contract? Is this an improper decision on a matter not submitted to the arbitrators?

Dr. Gillis Wetter, writing of the "daunting" problem of "how active a role members of an arbitral tribunal are obliged or permitted to play in conducting the proceedings with respect to procedural or substantive aspects which are inadequately argued by counsel for the parties or not raised at all by one party by reason of the proceedings being ex parte, " lamented that, "Although the question arises in almost every case, in a very concrete sense, it is rarely discussed in articulate and clear terms."19

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The American Code of Ethics gives little concrete help, although it does elaborate Canon V as follows, under subparagraph "A":

An arbitrator should, after careful deliberation, decide all issues submitted for determination. An arbitrator should decide no other issues.

Indeed, it is well recognized that failure to abide by this restriction can form the basis for the invalidating of an award. An arbitrator may not decide an issue that is not before the Tribunal.

But on the other hand, the arbitrator surely has a right to exercise flexibility in raising and in deciding how to decide those issues that, broadly speaking, have been put before the arbitrator. Indeed, ICC precedent recognizes the need to structure Terms of Reference in a way to assure this flexibility when listing the issues that are presented in a case. A suggested clause is:

The issues to be determined shall be those resulting from the parties' submissions and which are relevant to adjudication of the parties' respective claims and defenses. In particular, the arbitral tribunal may have to consider the following issues (but not necessarily all of these and only these, and not in the following order):20

A more elaborate model, used at an ICC educational seminar, included the following as a sample preface to the list of issues to be decided by the arbitrators, designed to assure greater flexibility:

The Arbitral Tribunal is to resolve all issues of fact and law that shall arise from the claims and counterclaims and pleadings as duly submitted by the parties, including, but not limited to, the following issues, as well as any additional issues of fact or law which the Arbitral Tribunal, in its own discretion, may deem necessary to decide upon for the purpose of rendering any Arbitral Award in the present Arbitration: (etc.)21

This, I submit, is recognition of an arbitrator's inherent right to arrive at a just decision with a reasonable degree of independence in raising and defining the necessary issues.

Usually, there is no such language in the operative agreements and rules. Arbitrators, institutions and courts must find their way on a case-by-case basis, and it would seem difficult to further codify the particulars of the arbitrator's right to find the best path to substantive justice. But while an arbitrator has an inherent right to do what is fair and reasonable to assure that every issue is being properly decided, Dr Wetter rightly noted what must be the governing principle:

There is, or should be, a firm procedural or ethical rude to the effect that an arbitrator shall not act, nor fail to act, in a manner which may have the effect of unduly exposing a party or the counsel or representative of a party to an element of surprise, whether in the conduct of the arbitration proceedings or the resolution of the dispute.22

V. Integrity of the process and the dissenting arbitrator

The process of decision leads to further questions when the award is written. In the view of some, an arbitrator has no right to prepare a written dissent from an award made by the majority. The ICC Commission studied this subject and issued a report in 1988.23 Although no nation's law was said to forbid arbitrator dissents, there was nevertheless a view that they should be discouraged. The rationale, as I understand it, is three-fold: a dissenting opinion would be contrary to the integrity of the arbitral process because it would (1) disclose something of the deliberative process of the tribunal; (2) tend to emphasize identification of a dissenter with the view of an appointing party; and (3) provide a basis for challenge to the award.24

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Integrity of the arbitral process is an important value; but under American law and in American arbitral practice, and under the ICSID Convention as well,25 there is no restriction on the right of a dissenting arbitrator to prepare a written explanation of his or her reasons for dissenting, including reasons which might disclose some of the deliberations of the tribunal and might provide a basis for a challenge. Indeed, some would say that, in extreme cases, such matters might provide an appropriate ground for challenge to the award and might be uniquely within the dissenting arbitrator's ability to make part of the record. In addition, if a dissenting arbitrator feels that the majority's award lacks adequate explanation for the outcome, the dissenting arbitrator might feel it appropriate to exercise this right in order to let the losing party know more precisely why it lost ( for whatever comfort that might be.

But the right to express a dissenting view has its limits, and current developments give reason to emphasize them. In one recent American case,26 one of the arbitrators submitted what a court described as "a series of extraordinary dissents from the majority awards". Indeed, the dissenting "awards" numbered several hundred pages of reasoning and an additional several hundred pages of exhibits. The situation was so unusual that the court determined that the arbitrators should be called as witnesses to testify as to certain matters touching on the extent and manner of their deliberations. (The judge noted, however, that the case "should not be viewed as a precedent in any way for inquiry into the deliberations of an arbitration panel" and that he permitted any inquiry at all into the proceedings only "because of the seriousness of the charges made by the dissenter against the other two arbitrators".) The court, in the end, found that the dissenter's charges of bias on the part of the other two arbitrators were not substantiated. "Indeed," the court wrote, "portions of the dissenter's testimony became long-winded and unfair broadside attacks upon the majority." The court deemed the "entire affair" to be "quite unfortunate".

Nor are lengthy and outspoken dissents limited to arbitrators in traditional commercial arbitrations. Under the Canada-United States Free Trade Agreement, and more recently under the North American Free Trade Agreement, extraordinary challenge committees may sit as, in effect, special international arbitral bodies to review arbitral panel decisions on antidumping and countervailing duty cases under the trade agreements. In a Canada-U.S. decision last year rejecting such a challenge,27 a dissenting panelist, who happened to be a U.S. national, expressed his views at significant length and in strenuous terms. "Putting it frankly, bluntly and perhaps impolitely," he wrote, "the basic problem ... in this case is that the English courts accept no legislative history at all and the Canadians follow closely in their footsteps." The panelist, a former U.S. judge, added: "There is no way for Canadian members of these [panels] to have become immersed in the standards of judicial review of agency action in the United States ... Canadian members necessarily do not have the same familiarity with U.S. standards of review that U.S. members do." The dissenting panelist went on to raise expressly what he viewed as United States constitutional defects with the entire U.S.-Canada Free Trade Agreement panel review process, setting out a road map for what proved to be a subsequent challenge by the losing side (eventually settled) in a U.S. court. This appears to take the right to register a dissenting view rather far and, I would suggest, is a precedent to be rejected. The arbitrator's right to dissent should be exercised with a due respect for the integrity of the process.

This decision may reflect one of the difficulties involved when former judges serve as arbitrators. Part of the judicial task is to articulate dissenting views so that they may be considered by appellate courts or by judges of sister courts who may find them persuasive. In addition, by tradition in common law jurisdictions, dissents sometimes are strong and personal. As others have said,28 the arbitral [Page34:] dissent has a lesser role as a source for consideration by reviewing authorities. In addition, as part of a forum designed to provide services to commercial parties, international arbitration can ill afford the type of vituperative dissent sometimes found in courts and, unfortunately, recently in the Canada-U.S. trade forum setting. Perhaps judges wishing to serve as commercial arbitrators after retirement should be required to attend an educational course to ensure that they are appropriately re-indoctrinated in the principles of civility more widely respected in international arbitration.

VI. Trust, confidentiality and war stories

When an arbitration is concluded, and sometimes even before that point, there is a natural temptation for the arbitrator to talk about it.29 The problems confronted may be intriguing and difficult, and the solutions reached can be worthy of emulation. But ethical duties require the arbitrator to be faithful to the relationship of trust and confidentiality that the Code describes as "inherent in [the arbitrator's] office". Indeed, Paragraph B under Canon VI of the Code of Ethics specifies that,

Unless otherwise agreed by the parties, or required by applicable rules or law, an arbitrator should keep confidential all matters relating to the arbitration proceedings and decision.

This obligation of confidentiality of course extends to arbitral deliberations and to the knowledge of what a decision will be in advance of the time it is given to all parties, and it also bars use of any information acquired during the arbitration proceeding to gain personal advantage, advantage for others or to affect adversely the interest of others.

Article 9 of IBA Ethics makes the same point, with a vague reference to exceptions:

The deliberations of the arbitral tribunal, and the contents of the award itself, remain confidential in perpetuity unless the parties release the arbitrators from this obligation. An arbitrator should not participate in, or give any information for the purpose of assistance in, any proceedings to consider the award unless, exceptionally, he considers it his duty to disclose any material misconduct or fraud on the part of his fellow arbitrators.

Arbitral Rules sometimes address the arbitrator's duty of confidentiality, at least in general terms. Article 35 of the AAA International Rules states, for example:

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 all matters relating to the arbitration or the award.

ICC and ICSID Rules do not address the subject expressly, although administrative practice evidently is consistent.30

Publication of awards following their issuance has been a popular subject of debate for years. The ICC publishes redacted versions of selected awards, although the AAA does not. Article 48(5) of the ICSID Convention provides that awards may not be published by the Centre unless both parties agree, but the North American Free Trade Agreement varies this somewhat. It provides that investment dispute awards made by ICSID or made under the [Page35:] UNCITRAL Rules may be published by either disputing party unilaterally if the U.S. or Canada is a party but will not be published if Mexico is a party unless both disputing parties agree.31

The nature of the confidentiality appropriate to arbitral matters raises many complicated issues, some of which have been considered recently by English 32 and Australian courts,33 with rulings suggesting that many aspects of the process are entitled to a rebuttable presumption of confidentiality, at best.

In practice, of course, arbitrators are not primary offenders in cases of breaches of confidentiality. They are able to discuss situations that arise in the course of arbitrations on a "redacted" basis for pedagogic purposes rather easily by omitting names and any potentially revealing information. It seems only proper that, subject to the ethical principles of confidentiality protecting legitimate privacy expectations, this should be one of their rights. As members of a profession which must rely in significant part on education of its members from non-public sources, they might even have a responsibility to do so. The obligation of confidentiality should be recognized as coexisting with the right of the arbitrator to contribute to knowledge in our field. 34

Conclusion

The existing ethical codes provide a good map to chart the duties of the arbitrator. They are much less complete in describing the arbitrator's rights. Those rights can be characterized as aspects of the arbitrator's right to interpret the obligations under the rule of reasonableness.

1
E.g., American Arbitration Association International Arbitration Rules, Arts. 7-8 (arbitrator disclosure), 28 (form of award), 29 (apply the law), 30 (settlement), 31 (interpretation of award), 32 (costs), 33 (compensation), 35 (confidentiality), 36 (exclusion of liability); ICC Rules of Arbitration, Arts. 2.7 (arbitrator disclosure), 13 (terms of reference), 14-15 (proceedings), 19-20 (award), 26 ("general rule"); ICSID Arbitration Rules 5-6 (acceptance of appointments and disclosure), 8 (right to resign), 9 (disqualification), 13-17, 19-23, 25-26, 28, 31-32, 34-45 (procedures), 46-49 (award), 50-51 (interpretation).

2
The U.S. Federal Arbitration Act, for example, includes among the grounds for vacating awards arbitrator "corruption", "fraud", "evident partiality", or "misconduct" in refusing to postpone a hearing when sufficient cause has been shown for the postponement, or refusing to hear pertinent evidence or "other misbehavior". 9 U.S.C. § 10(a), (b), (c). The UNC1TRAL Model Law is more detailed and includes in Article 36 the New York Convention grounds for refusing recognition or enforcement of an award. Grounds which reflect arbitral duties include failure to give proper notice of proceedings or rendering a party "unable to present his case"; making an award dealing with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or containing decisions on matters beyond the scope of the submission; following an arbitral procedure not in accordance with the agreement of the parties or applicable law.

3
Reprinted in Howard M. Holtzmann, "The First Code of Ethics For Arbitrators in Commercial Disputes", 33 Bus. Law, p. 309 (1977), as well as in 10 Y.B. Com. Arb., p. 131 (1985). See James H. Carter, "Living With the Party-Appointed Arbitrator: Judicial Confusion, Ethical Codes and Practical Advice", 3 Am. Rev. Int'l Arb., p. 153 (1992); for general discussions of arbitrator ethics, see Giorgio Bernini, "Report on the Conduct of Arbitral Proceedings: Standards of Behaviour of Arbitrators" in ICC, The Arbitral Process and the Independence of Arbitrators at p. 31 (1991); Fali S. Nariman, id. at p. 45; Martin Hunter and Jan Paulsson, "A Code of Ethics for Arbitrators in International Commercial Arbitration?", 13 Int'l Bus. Law, p. 153 (1985); M. Scott Donahey, "The Independence and Neutrality of Arbitrators", 9(4) J. Int'l Arb., p. 31 (1992); Murray L. Smith, "Impartiality of the Party-Appointed Arbitrator", 6 Arb. Int'l, p. 320 (1990); Huang Yanming, "The Ethics of Arbitrators in CIETAC Arbitrations", 12(2) J. of Int'l Arb., p. 5 (1995); Gary B. Born, International Commercial Arbitration in the United States, pp. 63-71 (1994).

4
See, e.g., Sigvard Jarvin, "The Sources and Limits of the Arbitrator's Powers", 2Arb. Int'l, p. 140 (1986); Contemporary Problems in International Arbitration (Julian D. M. Lew, ed. 1986) (Part 2); Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration, pp. 256-88 (2d ed. 1991).

5
That debate is reflected in the work to date of the ICC Commission's Working Group on the Status of Arbitrators; see also Sir Michael J. Mustill, "Maritime Arbitration: The Call for a Wider Perspective", 9(2) J. Int'l Arb., pp. 5, 25, 29 (1992); W. Laurence Craig, William W. Park & Jan Paulsson, International Chamber of Commerce Arbitration, pp. 239-41 (2d ed. 1990).

6
There have been proposals to modify the AAA/ABA Code of Ethics to take account of the requirements of independence and impartiality of all arbitrators in international proceedings. See generally Carter, supra note 3, at p. 167.

7
26 I.L.M. p. 583 (1987), reprinted in Parker School of Foreign and Comparative Law, Guide to International Arbitration and Arbitrators (2d ed. 1992). See Carter, supra note 3, at pp. 165-67; Howard Boltzmann, "Report on the Conduct of Arbitral Proceedings: Standards of Behaviour of Arbitrators", in ICC, The Arbitral Process and the Independence of Arbitrators at p. 39 (1991).

8
See, e.g., Michael F. Hoellering, "The Selection of Arbitrators: The Experience of the American Arbitration Association in the Confirmation/ Appointment Stage of an Arbitration", in ICC, The Arbitral Process and the Independence of Arbitrators at p. 3 (1991); Stephen R. Bond, "The Experience of the International Chamber of Commerce in the Confirmation/Appointment Stage of an Arbitration", id. at p. 9; Ibrahim Shihata, "The Experience of the International Centre for the Settlement of Investment Disputes in the Confirmation/Appointment Stage of an Arbitration", id. at p. 17.

9
Betz v. Pankow, 31 Cal. App. 4th 1503 (Cal. App. 1st Dist. 1995).

10
E.g., Alain Hirsch, "May the Arbitrator Know the Lawyers of the Parties?" (1990) Bul. Swiss Arb. Ass'n No. 1, at p. 7, translated in Craig, Park & Paulsson, supra note 5, App. VI booklet 24 at p. 43 (1994); Stephen R. Bond, "The ICC Arbitrator's Statement of Independence: A Response to Prof. Alain Hirsch," (1990) Bul. Swiss Arb. Ass'n No. 3, at p. 266, reprinted in Craig, Park & Paulsson, supra note 5, App. VI booklet 24 at p. 47 (1994).

11
Compare Craig, Park & Paulsson, supra note 5, § 13.07 at p. 240, listing the following among the authors' assumptions of general principles guiding ICC arbitrators' standards of conduct during the proceedings: "An arbitral tribunal should generally allow the parties to modify or adopt procedural rules, including ones that may be reached in the course of proceedings. For instance, if both parties agree, each party may communicate ex parte with the arbitrator it has named, particularly where the parties agree that such communication may favor a settlement."

12
See, e.g., Andreas F. Lowenfeld, "The Party-Appointed Arbitrator In International Controversies: Some Reflections" 30 Tex. Int'l L. J. p. 59 (1995); Carter, supra note 3, at p. 168; James H. Carter, "The Selection of Arbitrators", in Worldwide Forum on the Arbitration of Intellectual Property Disputes (WIPO 1994); but see Code of Ethics for Vancouver Maritime Arbitrators Association, reprinted in William O. Forbes, "Rules of Ethics for Arbitrators and Their Application", 9(3) J. Int'l Arb., p. 5, app. at p. 26 (1992) ("No arbitrator shall confer with the party or counsel appointing him regarding the selection of a third arbitrator.").

13
Metropolitan Property and Casualty Ins. Co. v. J.C. Penney Casualty Ins. Co. , 780 F. Supp. 885 (D. Conn. 1991).

14
Sunkist Softdrinks v. Sunkist Growers, 10 F.3d 753 (11th Cir. 1993).

15
World Intellectual Property Organization, WIPO Arbitration Rules, Art. 21 (1994). The WIPO Rules also address communications between parties and the Tribunal after all Tribunal members have been appointed: "Except as otherwise provided in these Rules or permitted by the Tribunal, no party or anyone acting on its behalf may have any ex parte communication with any arbitrator with respect to any matter of substance relating to the arbitration, it being understood that nothing in this paragraph shall prohibit ex parte communications which concern matters of a purely organizational nature, such as the physical facilities, place, date or time of the hearings." Id, Art. 45.

16
The WIPO Arbitration Rules use similarly broad language in Art. 38, headed "General Powers of the Tribunal": "(a) Subject to Article 3, the Tribunal may conduct the arbitration in such manner as it considers appropriate. (b) In all cases, the Tribunal shall ensure that the parties are treated with equality and that each party is given a fair opportunity to present its case. (c) The Tribunal shall ensure that the arbitral procedure takes place with due expedition. It may, at the request of a party or on its own motion, extend in exceptional cases a period of time fixed by these Rules, by itself or agreed to by the parties. In urgent cases, such an extension may be granted by the presiding arbitrator alone."The WIPO Rules also deal expressly in Art. 54(b) with the arbitrator's right to exercise discretion in controlling the use of witnesses: "(b) The Tribunal has discretion, on the grounds of redondance and irrelevance, to limit or refuse the appearance of any witness, whether witness of fact or expert witness."Other WIPO Rules do give the parties the right to determine procedural issues by agreement, presumably without arbitrator interference. E.g., Art. 53(c): "Unless the parties agree otherwise, all hearings shall be in private."

17
See Eric A. Schwartz, intervention in The Reform of Commercial Arbitration Procedures, pp. 237-38 (I.R. Scott, ed. 1994).

18
As one leader in the field has put it: "I draw your attention to the fact that Article 15 of the UNCITRAL rules states that 'subject to these rules the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate provided that the parties are treated with equality and that at any stage of the proceedings each party is given full opportunity of presenting his case'. In other words, under these rules the agreement of the parties as to procedure is not paramount. As I mentioned yesterday, I felt that one of the interesting facets of the procedure at the Iran-US Claims Tribunal was the use of very short, concentrated hearings. Howard Holtzmann did an excellent job in persuading the lawyers, especially the American lawyers, into accepting this.I wonder what exactly is meant by the parties agreeing to a procedure. Does the agreement of the parties go, for instance, to the question of the number of days to be devoted to an oral hearing? And is that binding on the arbitrators? Can the arbitrators say 'no, you will only have four days of hearing?' I think there is a certain amount of scope for interpretation of what exactly 'agreement of the parties' means in this context. Obviously, if the parties say, for example, 'we want UNCITRAL rules to apply', then the arbitrators cannot say, 'sorry, we intend to hear this case under the domestic court proceedings of Geneva'. It may be that there are limits to the level of detail to which the parties can go in their agreement before they have to take into account the wishes of the arbitrators."Robert Briner, intervention in The Reform of Commercial Arbitration Procedures, supra note 17, at p. 241.

19
J. Gillis Wetter, "The Internationalization of International Arbitration: Looking Ahead to the Next Ten Years", 11 Arb. Int'l, pp. 117, 118 (1995).

20
ICC Commission Working Group Report, Terms of Reference Under the 1988 ICC Arbitration Rules: A Practical Guide, para. 121, The ICC International Court of Arbitration Bulletin, Vol. 3/N° 1, 1993, p. 23.

21
ICC Arbitration Programme, New York, May 27, 1992 (Materials, Tab 4).

22
Wetter, supra note 19, at p. 118.

23
2(1) ICC Int'l Ct. of Arb. Bul., p. 32 (1991).

24
Craig, Park & Paulsson, supra note 5, at pp. 332-35; Redfern & Hunter, supra note 4, at pp. 398-401; Laurent Levy, "Dissenting Opinions in International Arbitration In Switzerland," 5 Arb. Int'l, p. 35 (1989); Jacques Werner, "Dissenting Opinions: Beyond Fears," 9(4) J. Int'l Arb., p. 23 (1992).

25
Article 48(4) of the ICSID Convention states: Any member of the Tribunal may attach his individual opinion to the award, whether he dissents from the majority or not, or a statement of his dissent.

26
Fertilizantes Fosfatados Mexicanos, S.A. v. Chemical Carriers Inc. , 751 F. Supp. 467 (S.D.N.Y. 1990); see Mary T. Reilly, "The Court's Power to Invade the Arbitrators' Deliberation Chamber", 9(3) J. Int'l.Arb., p. 26 (1992).

27
In the Matter of Certain Softwood Lumber Products from Canada, 1994 FTAPD Lexis 11 (Aug. 3, 1994).

28
Craig, Park & Paulsson, supra note 5, at pp. 332-35.

29
See Jan Paulsson and Nigel Rawding, "The Trouble with Confidentiality", 5(1) ICC Int'l Ct. Arb. Bul., pp. 48, 57-59 (1994).

30
The WIPO Arbitration Rules are slightly more explicit, stating in Art. 76:"(a) Unless the parties agree otherwise, the Center and the arbitrator shall maintain the confidentiality of the arbitration, the award and, to the extent that they describe information that is not in the public domain, any documentary or other evidence disclosed during the arbitration, except to the extent necessary in connection with a court action relating to the award, or as otherwise required by law.(b) Notwithstanding paragraph (a), the Center may include information concerning the arbitration in any aggregate statistical data that it publishes concerning its activities, provided that such information does not enable the parties or the particular circumstances of the dispute to be identified."

31
North American Free Trade Agreement, Art. 1137(4) and Annex.

32
Insurance Co. v. Lloyds Syndicate [19951 1 Lloyd's Rep., p. 272 (Q.B.).

33
Esso Australia Resources Ltd et al. v. Plowman et al. (High Ct. of Australia April 7, 1995), reported in 6 WAMR, p. 133 (1995).

34
Significant professional interchange takes place in conferences which include informal discussion among arbitrators, on a "redacted" basis, of procedural and other problems that may be encountered in practice. See, e.g., The Reform of Commercial Arbitration Procedures, supra note 17, at pp. 215-47, the proceedings of "workshop" seminars at a conference co-sponsored by the AAA, ICC and other organizations. Similar programs are sponsored by other arbitral groups.