Introduction

Parties to a legal controversy usually choose arbitration as an alternative method of domestic or international dispute resolution because it appears to be more expeditious, more confidential, more informal and less expensive Man litigation. They also prefer arbitration over litigation because it offers them a more or less extended influence on the selection of the person(s) empowered to resolve the conflict at hand: the arbitrator(s). Arbitrators are selected by the parties for two main reasons. First, because they are persons in whom the parties place their confidence and second, because they are experts in the specific area of dispute and, therefore, better qualified to resolve the dispute at hand.

Due to the growing use of arbitration as an attractive alternative to court litigation, arbitrators increasingly gain status and responsibility as final adjudicators of substantial national and international disputes. It therefore seems essential that arbitrators' rights and duties be clearly stated and defined at the outset of any arbitral proceeding. Practice shows that failure to do so may cause severe damage to all parties involved in the arbitral process and may also reflect negatively on arbitration as a preferred method of dispute resolution. An arbitrator's misconception of his rights and duties as adjudicator may not only leave the parties without an award, but also the arbitrator without a job and the arbitral institution with a loss of prestige. In addition, arbitrators and arbitral institutions might see themselves confronted with liability suits filed by aggrieved parties.

This paper attempts to give an overview of the most important rights and obligations an arbitrator has towards the parties and the arbitral institution in civil law jurisdictions. The focus shall be on the scope of these rights and duties rather than on their enforcement. Following a brief survey of the different legal sources of law for arbitral conduct, this paper will address the most significant rights and obligations of the arbitrator to the parties and arbitral institution in the different stages of an arbitration proceeding, namely the establishment of the tribunal, the main proceedings, the making of the award and the post-award proceedings.

I. Sources of an arbitrator's rights and obligations

Depending on the type of arbitration chosen by the parties, the sources of an arbitrator's rights and duties will vary. In ad hoc arbitrations, rights and duties may flow from the following autonomous and independent sources: (1) the appointment contract of the arbitrator (receptum arbitri, Schiedsrichtervertrag, mission d'arbitres, contratto di arbitrato) entered into between the parties and the arbitrator, (2) the substantive law applicable to this appointment contract, (3) the arbitration agreement concluded between the parties, (4) the law applicable to the arbitration agreement and (5) the law applicable to the arbitration proceeding itself (lex arbitri).

In the case of institutional arbitrations, a sixth source of rights and obligations to be considered are the rules of the arbitration association. As will be shown in the following analysis, rules of arbitration applicable to arbitration proceedings include a variety of provisions imposing rights and duties on arbitrators. In institutional arbitrations, the arbitrators and the parties are in general not connected by a direct legal relationship. Instead, the parties enter into a contractual relationship with the arbitral institution which in turn enters into an appointment contract with the arbitrators.1

When determining the extent of an arbitrator's rights and duties, a number of different legal sources must thus be taken into account. Because these legal sources often contain conflicting provisions and may raise delicate conflict of laws issues, parties, arbitral institutions and arbitrators should take special care when drafting the arbitrator's appointment contract. Parties should also be aware that when choosing institutional arbitration, it is often the institution that enters into the appointment [Page38:] contract with the arbitrator. Parties are thus well advised to expressly include in the arbitration agreement any specific rights and obligations they wish to be imposed on arbitrators.

Because of the consensual character of arbitration, in civil law systems all legal sources of an arbitrator's powers and obligations are either of a contractual or of a statutory nature. In contract to common law systems, inherent powers or obligations2 thus do not represent valid sources of law applicable to arbitral conduct. They are a common law concept alien to the civil law tradition, where it is felt to be incompatible with the governing principle of legality (Legalitätsprinzip, principe de légalité).

II. Establishment of the tribunal

A. Acceptance of appointment

One prerequisite for the establishment of the arbitral tribunal is that the arbitrators accept their appointment. This is for example clearly stated in Article 1452, para. 1, of the New French Code of Civil Procedure: "[t]he constitution of the arbitral tribunal is accomplished only if the arbitrator or arbitrators accept the mission with which they have been entrusted"3 or in Article 14(2) of the Swiss Intercantonal Arbitration Convention which reads: "The arbitral tribunal shall be deemed to be properly constituted only when ail arbitrators have accepted their mandate with respect to the dispute submitted to them."4

It is a fundamental principle of civil law systems that arbitration is a matter of contract. It follows that a party cannot be required to submit to arbitration any dispute which it has not agreed to submit. Likewise, an arbitrator may not be forced to accept an appointment he does not wish to accept. This rule is expressly stated in a number of national arbitration statutes, including § 579 first sentence of the Austrian Code of Civil Procedure ("nobody is obligated to accept his appointment as arbitrator"), Article 453 of the Norwegian Code of Civil Procedure ("the office of arbitrator is voluntary"), or Article 880 of the Greek Code of Civil Procedure ("[t]he person designated as arbitrator or chairman shall not be bound to accept his appointment").

In connection with their appointment, national legal systems and rules of arbitral institutions impose specific pre-contractual obligations on prospective arbitrators. Under some systems, prospective arbitrators are obligated to declare to the nominating authority (a party, arbitrator, arbitral institution, court or other third party) within a specified time period and in a specific form whether they are willing to accept the mission proposed to them by the nominating authority. For example, Article 15.2 of the Spanish Arbitration Act of 1988 obligates prospective arbitrators to accept their appointment in writing within fifteen days from the time of notification, otherwise it shall be presumed that they have declined their appointment. Similarly, according to § 7 of the 1992 Rules of the German Institution of Arbitration "[e]ach arbitrator shall declare without delay to the DIS Secretariat whether he accepts the office as arbitrator".

More importantly, mort systems obligate arbitrators to disclose to the appointing authority any facts or circumstances which might reasonably compromise their independence. For example, Article 1452, para. 2, of the French NCPC stipulates that if an arbitrator has any reason to think that he could be challenged, he must inform the parties and can accept appointment only with the parties' agreement.5 Likewise, according to Article 2(7) of the ICC Arbitration Rules, "[b]efore appointment or confirmation by the Court, a [Page39:] prospective arbitrator shall disclose in writing to the Secretary General of the Court any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties".6

A prospective arbitrator's pre-contractual disclosure obligation is not limited to matters affecting his independence, but extends to various other qualifications arbitrators are regularly required to possess according to the arbitration agreement, arbitration statutes, or to the rules of the arbitral institution, such as nationality, specialization, competency to determine the issue in dispute or availability. Article 1692 of the Belgian Judicial Code provides for example that "the parties may exclude in the arbitration agreement certain categories of persons from being arbitrators", Article 12.2 of the Spanish Arbitration Act of 1988 provides that "when the dispute is to be settled by de jure arbitration, the arbitrators must be practicing attorneys". An influential standard of this disclosure obligation is expressed in Rule 5.1 of the 1987 IBA Ethics for International Arbitrators: 7 " When approached with a view to appointment, a prospective arbitrator should make sufficient enquiries in order w inform himself whether there may be any justifiable doubts regarding his impartiality or independence; whether he is competent w determine the issues in dispute; and whether he is able to give the arbitration the time and attention required."

Yet another important pre-contractual obligation a prospective arbitrator owes the parties of the upcoming arbitration proceedings is to refrain from discussing in detail the merits of the case with one party only. While it is certainly necessary for the arbitrator to have a general idea about the case and the issues involved (in order to determine whether he is qualified to perform the proposed mission), any elaboration going beyond generalities should constitute a breach of independence to be disclosed to the remaining parties involved. This view is shared by the 1987 IBA Ethics for International Arbitrators which state (in Rule 5.1): "In the event that a prospective sole arbitrator or presiding arbitrator is approached by one party alone, or by one arbitrator chosen unilaterally by a party (a 'party-nominated' arbitrator), he should ascertain that the other party or parties, or the other arbitrator, has consented to the manner in which he has been approached. In such circumstances he should, in writing or orally, inform the other party or parties, or the other arbitrator, of the substance of the initial conversation."

The consequences of an arbitrator's failure to meet his pre-contractual obligations differ. While refusal by a prospective arbitrator to accept or failure to respond to a party's or an institution's nomination does not have any legal impact, failure to disclose circumstances likely to give rise to justifiable doubts as to his impartiality, independence or other requirements may have serious consequences. Invariably, national legal systems provide that the award may be vacated on such grounds.8

Once arbitrators have accepted their appointment, they are in principle held to complete their mission. This duty is expressed in almost all national arbitration statutes. For example, Article 1462 of the New French Code of Civil Procedure states that "arbitrators are to continue their mission until it has been completed",9 Article 1014 of the Luxembourg Code of Civil Procedure stipulates that "[a]rbitrators may not withdraw once their proceedings have commenced", Article 1689 of the Belgian Judicial Code provides that "[o]nce the arbitrator has accepted w serve as such, he cannot resign" and Article 16 of the Spanish Arbitration Act 1988 stipulates that "the acceptance of the appointment requires the arbitrators... faithfully to fulfil their duties".

An arbitrator's duty to actively participate in the arbitral proceedings is, however, subject to one important proviso, namely the arbitrator's right to abandon his function for reasonable cause, i.e. grounds that hinder a relationship of trust between the parties and the arbitrator, such as for example the refusal by the parties to [Page40:] cooperate in the taking of the evidence.10 This right is expressly stated in a number of arbitration statutes including § 579 of the Austrian Code of Civil Procedure ("the arbitrator may resign after accepting his appointment if he has reasonable cause"), Article 813 of the Italian Code of Civil Procedure ("[Arbitrators] shall be liable in damages if, after accepting their appointment, they renounce it without just cause"), Article 1689 of the Belgian Judicial Code ("Once the arbitrator has accepted to serve as such, he cannot resign unless he is, at his request, so authorized by the Court of First Instance"), Article 880, para. 2, of the Greek Code of Civil Procedure ("a person who has accepted his appointment as arbitrator or chairman may, for a serious reason, withdraw on having obtained the permission [of the competent judge]") and Article 453 of the Norwegian Code of Civil Procedure ("A person who has accepted the office may withdraw if his grounds are acceptable").

B. Selection of fellow arbitrator

In those instances in which a dispute is to be decided by a three-person panel, national arbitration statutes and rules of arbitral institutions generally obligate arbitrators to participate in the constitution of the tribunal by appointing its chairman within a specified time limit.- For example, § 580 of the Austrian Code of Civil Procedure provides that if the arbitration agreement contains neither the names of arbitrators nor a provision concerning the number and appointment of arbitrators, each party shall appoint an arbitrator, and these shall in turn appoint the chairman of the arbitral tribunal. Article 1454 of the New French Code of Civil Procedure in turn states that where the parties have chosen that their dispute be decided by an even number of arbitrators, another arbitrator shall be nominated by the designated arbitrators, unless the parties have provided otherwise.11

Similar rules may be found in rules of arbitral institutions. For example, Article 9(5) of the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Economic Chamber (Vienna Rules) provides that "[i]f the dispute is to be decided by three arbitrators, the arbitrators nominated by the parties or appointed by the Board shall be requested to agree on a Chairman and to indicate his name and address within thirty days after service of the request". And § 5(2) of the Arbitration Rules of the German Institution of Arbitration stipulates: "The two arbitrators shall elect the chairman of the arbitration tribunal and notify without delay the DIS Secretariat and the parties of this election." According to Article 2.4 of the ICC Arbitration Rules, an appointment duty shall incumb on the arbitrators only if the parties have so provided in the arbitration agreement: "The third arbitrator, who will act as chairman of the arbitral tribunal, shall be appointed by the Court, unless the parties have provided that the arbitrators nominated by them shall agree on the third arbitrator within a fixed time-limit."

When required to participate in the selection of a presiding arbitrator, it is arguably acceptable for party-appointed arbitrators to obtain the views of the parties who nominated them as to the acceptance of candidates being considered.12 Failure to cooperate in the selection of the third arbitrator is unlikely to cause any damage because national statutes and rules of arbitral associations invariably provide for a substitute appointing authority with power to select the chairman in the event the arbitrators cannot agree on a person within a specified time limit (usually 30 days).13 If the arbitrators should, however, select a fellow arbitrator, they have an obligation to the parties to use care in the selection of this arbitrator, in particular to follow the guidelines for qualifications set forth in the arbitration agreement or in the rules of arbitral institutions.

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III. Main proceedings

In general, arbitration statutes and rules of arbitral institutions give the parties and arbitrators broad discretion in structuring the procedural conduct of the arbitration.14 This principle, which expresses a profound confidence in the ability of arbitrators to conduct the arbitration proceedings, is at the heart of ail civil law systems. For ad hoc arbitration, arbitration statutes usually provide that the parties are free to agree on the arbitral procedure to be followed. Absent such agreement, the arbitral tribunal may conduct the arbitration as it deems appropriate. For example, Article 1460 of the French NCPC provides that: "[t]he arbitrators shall determine the procedure for the arbitration without being bound by the rules established for the courts, unless the parties have provided otherwise in the arbitration agreement"15; and § 587 of the Austrian Code of Civil Procedure states: "[u]nless provided otherwise by the parties in the arbitration agreement or in a subsequent written agreement, the tribunal may conduct the arbitration proceeding in whatever manner it considers appropriate".16 In institutional arbitration, arbitral institutions usually introduce a third source of law to be observed, namely the institution's own rules. For example, Article 11 of the ICC Rules of Arbitration provides: "The rules governing the proceedings before the arbitrator shall be those resulting front these Rules and, where these Rules are silent, any rules which the parties (or; failing them, the arbitrator) may settle, and whether or not reference is thereby made to a municipal procedural law to be applied to the arbitration."

National legal systems and rules of arbitral institutions do, however, impose certain restraints on the principle of autonomy of parties and arbitrators in governing the arbitration process. In order to ensure a fair and speedy arbitration, virtually all arbitration statutes and rules contain a set of basic regulations (rights and obligations) to be observed by the arbitrators, the institutions and the parties in their dealings with one another. Some of these rules shall now be singled out for discussion.

A. Expeditious conduct of proceedings

One of the raisons d'être and perceived advantages of arbitration over litigation in civil law jurisdictions is its speed. Indeed, most national statutes and rules of arbitral associations obligate the arbitrators to conduct the proceedings in an expeditious manner.

While an expeditious handling of the case may well be understood to be part of an arbitrator's duty of care, there is, however, a potential conflict to observe: time pressure may lead to negligence that must certainly be avoided.

This problem does not arise when arbitration rules merely stipulate a general duty of diligence the arbitrator is bound to observe. A general expression of an arbitrator's duty of diligence can be found in Article 20 of the Rules of the Italian Arbitration Association which states that "[t]he arbitrator shall carry out the procedure within a period of time as short as circumstances will allow" as well as in § 20 of the Arbitration Rules of the German Institution of Arbitration which provides that "[t]he arbitration tribunal shall encourage an expeditious conduct of the proceedings and render the arbitration award within a reasonable time". However, one frequently finds that arbitration rules impose (or permit the imposition of) strict time limits on arbitrators for the completion of the arbitral proceedings and/or the performance of specific procedural steps.

Specific time limits for completion of the arbitral proceedings are more frequent. All jurisdictions agree that the parties are free to provide for a time limit in the arbitration agreement. Absent such agreement, some jurisdictions provide that the competent court may, upon petition by the parties, fix a [Page42:] reasonable lime limit,17 but most stipulate specific time limits in statutory law. Among those that specify a particular time limit, the general rule seems to be a period of six months from the date the parties submitted their dispute to arbitration or the last arbitrator was appointed. For example, Article 1456 of the French Code of Civil Procedure provides that a domestic arbitration mandate lasts only six months from the date of the arbitrator's appointment.18 A similar rule is contained in Article 30 of the Spanish Arbitration Act 1988. § 18 para. 2 of the Swedish Arbitration Act of 1929 provides that "[w]here the parties have not laid down any period for giving the award, then the award shall be given within six months reckoned from the date when the arbitration agreement was made ...". And according to Article 18 of the ICC Arbitration Rules, the arbitrator must render his award within six months of signing of the Terms of Reference.19 Under other jurisdictions, arbitrators are expected to act twice as fast. Thus, under Articles 813 and 820 of the Italian Code of Civil Procedure, arbitrators must issue their award within 90 days from acceptance of their appointment, and pursuant to Article 1007 of the Luxembourg Code of Civil Procedure, the term of office of arbitrators shall be three months from the date of submission to arbitration if no time limits are agreed upon by the parties.

It is noteworthy that the UNCITRAL Model Law has deliberately refrained from imposing a time limit, leaving the issue to be resolved by the parties and the arbitrators. It was felt that a fixed standard period would be inadequate since in international arbitration circumstances varied considerably from one case to another and the enforcement of such a rule would be difficult.20

Time limits for the performance of specific procedural steps can be found in national arbitration statutes and rules of arbitral institutions alike. The ICC Arbitration Rules provide a good example in this respect: Article 13(2) of the Rules obligates the arbitrator to draw up and transmit the Terms of Reference to the International Court of Arbitration within two months of the date when the file has been transmitted to him, and Article 14(1) first sentence of the Rules states that "the arbitrator shall proceed within as short a time as possible to establish the facts of the case by all appropriate means".21 Arbitration rules often also obligate arbitrators to appoint substitute arbitrators in case vacancies on the panel should occur during the proceedings, resulting from disqualification, death, incapacity or resignation of an arbitrator.22 Time limits may also be found in national arbitration statutes. Thus Article 25 of the Spanish Arbitration Act of 1988 states that "arbitrators shall fix the time period within which the parties shall submit their pleadings".

An arbitrator's failure to comply with the duty to diligently manage the proceedings is subject to a number of sanctions which range from admonishment by a national court23 to challenge24 and replacement25 of the arbitrator, vacation of the arbitral award,26 termination of [Page43:] the arbitrators' mission,27 lapse of the arbitration agreement28 and liability to the parties for damages.29

B. Availability and accessibility

Although this is generally not expressly stated in national arbitration statutes or rules of arbitral associations, reasonable availability and accessibility of the arbitrator may be considered implied terms of every appointment contract. As indicated above, repute and expertise are not the only criteria which lead parties to choose arbitration as their preferred method of dispute resolution. Although parties realize that arbitrators have primary professional occupations, they expect that the arbitrators will give their case adequate priority.30 An influential contemporary formulation of a standard of availability and accessibility for arbitrators is reflected in Rule 7 of the 1987 IBA Ethics for International Arbitrators which states that "[a]ll arbitrators should devote such time and attention as the parties may reasonably require having regard to all circumstances of the case, and shall do their best to conduct the arbitration in such a manner that costs do not rise to an unreasonable proportion of the interests at stake".

C. Independence and impartiality

As indicated above, prospective arbitrators are obligated to disclose upon their nomination any facts or circumstances which might reasonably compromise their independence. Independence and impartiality are qualities which the arbitrator is obligated to maintain throughout the proceedings. For example, ICC Arbitration Rule 2(7) states that: "Every arbitrator appointed or confirmed by the Court must be and remain independent of the parties involved in the arbitration." In general, he is under the obligation to disclose any change in his status of independence to the parties and the arbitral institution.

Duty to remain independent means that he cannot accept gifts or hospitality of or instructions by one party or third parties.31 He must also avoid any financial involvement with other participants in the case such as witnesses or experts. Duty to remain impartial means that the parties must be treated with strict equality. Arbitrators must avoid unilateral social or professional contacts with them. After the tribunal has been established, the arbitrators are expected to refrain from ex parte communications about the case with the parties, just as parties are expected to refrain from ex parte communications with the tribunal. This latter duty is for instance expressed in Rule 5.3 of the 1987 IBA Ethics for international Arbitrators: "Throughout the arbitral proceedings, an arbitrator should avoid any unilateral communications regarding the case with any party, or its representative. If such communication should occur, the arbitrator should inform the other pare or parties and arbitrators of its substance."

Failure to maintain independence and impartiality are grounds on which an arbitrator may be challenged.32

D. Settlements

Settlements during arbitral proceedings are not uncommon. Almost all arbitration statutes and rules of arbitral institutions contain rules and procedures to be followed in the event that the parties should decide to settle the dispute during the arbitral proceedings. While some arbitration rules obligate the arbitrator in such a case to take specific measures which ensure that a [Page44:] settlement reached will be enforced, others provide that the arbitrator has discretion to refuse a request to record a settlement.

The ICC and the Vienna Arbitration Rules fall into the first category of rules: Article 17 ICC Arbitration Rules states that: "If the parties reach a settlement after the file has been transmitted to the arbitrator in accordance with Article 10, the same shall be recorded in the form of an arbitral award made by consent of the parties." Likewise, Article 20 of the Vienna Rules provides that: "The parties can require that an award be issued concerning the content of any settlement reached between them."33 Article 1069(1) Netherlands Arbitration Act falls into the second category of rules: according to this provision, the arbitral tribunal may deny the parties' request to have the contents of the settlement recorded in an arbitral award. The same approach has been taken by the UNCITRAL Model Law.34

The ability of the arbitrator to oppose the recording of a settlement in the form of an award arguably restricts the autonomy of the parties in an unjustified manner; if the subject matter of the dispute is capable of being submitted to arbitration in the first place, the parties should be free to settle the dispute without opposition by the tribunal. This has been accurately recognized by the ICC and the Vienna Rules. The obligation under these rules is, however, not unconditional: if the terms of settlement communicated to the arbitrators are in conflict with binding laws, public policy, fundamental notions of fairness and justice, or in case of suspected fraud or illicit settlement terms, the arbitrator arguably has a right to refuse to record the settlement in the form of an arbitral award. In those cases where the arbitrator is obligated or empowered to record a settlement proposed by the parties, attention should be paid to local tax laws: in some countries, the arbitrator may be jointly and severally liable with the parties for stamp duties.

While national arbitration statutes and rules of arbitral institutions generally contain rules and procedures to be followed in the event that the parties should decide to settle the dispute during the arbitral proceedings, it is unclear in most civil law jurisdictions whether and if so to what extent arbitrators may on their own initiative become involved in settlement procedures.

In civil law jurisdictions, the arbitrator's role is - in contrast to that of the mediator and conciliator - seen primarily as an adjudicatory one. Consequently, arbitration statutes and rules of arbitral institutions generally do not refer to any mediatory or conciliatory powers or duties of the arbitrator. In fact, they regularly provide for separate rules on conciliation and mediation unrelated to the arbitration rules. The ICC Rules of Conciliation may serve as such as an example: although reprinted in the same brochure as the arbitration rules, they represent a distinct set of rules as to both substance and form.

The absence of any reference to an arbitrator's rights and duties with respect to settlement proposals in most statutes and institutional rules does not mean, however, that the arbitrator does not have any capacity in that respect. Arguably, the parties have chosen to arbitrate their dispute among other things because arbitration is less confrontational and thus preserves the possibility of a continuing business relationship. Settlement proposals by arbitrators are therefore useful to the extent that they enable parties to better evaluate the risks and chances of the procedure,35 but also to encourage constructive relations among the parties in their future dealings.

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This has been recognized by a number of civil law jurisdictions which authorize or even obligate arbitrators to make proposals for settlement to both parties. For example, § 204 of the Austrian Code of Civil Procedure, which applies to judges and arbitrators alike, states that "the tribunal may, where the parties have so requested or at its own initiative, make proposals for settlement at any stage of the oral proceeding". And § 239(2) adds: "At the first oral hearing, an attempt to settle specific issues shall be made." Article 1043 of the Netherlands Arbitration Act provides that "at any stage of the proceedings the arbitral tribunal may order the parties to appear in person for the purpose of attempting to arrive at a settlement".36 Involvement of arbitrators in settlement proposals is also recognized by French courts. For example, the Cour d'appel de Paris has held in a 1984 decision that conciliation followed by a settlement is a natural outcome of arbitration proceedings.37 Rules of arbitral institutions likewise provide for arbitrator involvement in settlement proceedings. For example, § 19.1 of the German Arbitration Institution Rules states that: "At every stage of the proceedings the arbitration tribunal shall seek to reach an amicable settlement of the dispute or of individual issues in dispute."

This conception does not seem to be limited to civil law jurisdictions. Thus, Rule 8 first sentence of the 1987 IBA Ethics for International Arbitrators states: "Where the parties have so requested, or consented to a suggestion to this effect by the arbitral tribunal, the tribunal as a whole (or the presiding arbitrator where appropriate), may make proposals for settlement to both parties simultaneously, and preferably in the presence of each other."

It must be stressed that in those instances in which a right or even duty of the arbitrator to promote a settlement is recognized, the arbitrator may not force settlement discussions upon the parties, as is often the case before national courts. When becoming involved in settlement proposals, the arbitrator should attempt to discuss settlement terms in the presence of both parties or seek approval from one party for unilateral discussions with the other in order to avoid accusations of favoring one party over the other. This approach is suggested by Rule 8 of the IBA Ethics which states: "Although any procedure is possible with agreement of the parties, the arbitral tribunal should point out to the parties that it is undesirable that any arbitrator should discuss settlement terms with a party in the absence of the other parties since this will normally have the result that any arbitrator involved in such discussions will become disqualified from any future participation in the arbitration."38

E. Cooperation

Arbitration statutes and rules of arbitral institutions usually impose on parties, arbitrators and arbitral institutions a mutual duty of cooperation. Arbitrators are held to keep the parties as well as the arbitral institution informed of the current states of the proceedings and the procedural steps to come. This includes copying the arbitral institution into the correspondence with the parties on an ongoing basis. In general, arbitral institutions will keep a separate file of the case and require arbitrators to send them copies of their orders. It also includes the duty to keep the arbitral institution abreast of the procedural steps envisaged by the tribunal, such as the scheduling of oral hearings (see, e.g., Article 15.1 ICC Arbitration Rules) or the appointment of experts or translators (see, e.g., Article 23(9) Vienna Rules).

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In exchange, the arbitrator has a right to cooperation by the parties and the arbitral institution. The parties are obligated to pursue the proceedings with due expedition.39 They are under the obligation to cooperate in good faith, produce documents, present testimony, provide information and appear before the tribunal.40 They must notify the arbitrators of any developments of the case taking place outside of the arbitration process, such as a decision to settle the dispute outside of the arbitral proceedings. Besides providing support in financial matters (advances on costs, management of cost deposits), arbitral institutions must support the arbitrator in administrative matters such as providing the necessary infrastructure for oral hearings. Failure of the parties or the arbitral institution to cooperate with the arbitrator entitles the arbitrator to abandon his function for just cause.

IV. Making of the award

There are essentially two procedural issues to be considered relating to the making of an arbitral award: the period of time within which the award is to be made, and the process of making the decision to be embodied in the award. The first question has already been treated in Section 111.1 of this paper. The second issue, which shall be addressed in the following section, deals with the deliberation process and the formal requirements of the award.

A. Deliberations

In view of the legal status of the award in terms of its recognition and enforceability, national arbitration statutes and rules of arbitral institutions impose on arbitrators a duty to actively take part in the deliberations and an obligation to keep those deliberations confidential.

All arbitrators have to take part in the deliberations leading to the award. This duty is, for example, expressly stated in Article 1701 of the Belgian Judicial Code, Article 463 of the Norwegian Code of Civil Procedure or § 16 of the Swedish Arbitration Act. The actual participation of all arbitrators in the deliberations is, however, not a condition precedent for the validity of the award: in general, an award is considered valid if made and signed by the majority of the arbitrators.41 In case a three-person panel should come to three different legal opinions, the arbitrators are arguably under a duty to find a compromise: the parties cannot suffer a total waste of time and expense because the arbitration ends without an award being issued.

Furthermore, arbitrators are obligated to keep the deliberations on the award confidential. This is, for example, expressly stated in Article 1469 French NCPC: "The deliberations of the arbitrators are confidential."42 An influential contemporary expression of this standard is Rule 9 of the 1987 Ethics for International Arbitrators which provides that: "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."43

B. Formal requirements

In contrast to most common law jurisdictions, in civil law jurisdictions awards must meet certain minimal formal requirements which the arbitrator is bound to observe to ensure the validity of the award. Thus, awards must in general be in writing,44 state the date and place of the award,45 the names of the parties and the [Page47:] arbitrators46 and - in arbitral proceedings with more than one arbitrator - bear the signatures of the majority of the members of the arbitral tribunal.47

In contrast to common law countries where unmotivated awards may still be found, most civil law jurisdictions furthermore require that the award state the reasons upon which it is based.48 Although unmotivated awards can be issued more quickly, it is thought that the quality of awards is improved thereby. In virtually all jurisdictions, non-motivated awards may be set aside on public policy grounds.

Civil law jurisdictions generally fail to address the question whether a dissenting arbitrator has the right to have the tribunal append his dissenting opinion to the majority opinion or might issue his dissenting opinion separately if the arbitral tribunal does not attach it.49 The Spanish Arbitration Act which provides (in its Article 33) that "[t]he award shall be signed by the arbitrators and may indicate the dissenting opinion of the arbitrator," is an exception in this respect. In the absence of specific provisions on this point, dissenting opinions will arguably be permitted only if the other members of the tribunal so decide. This is at least the practice under the ICC Rules of Arbitration.50

V. Post-award proceedings

In general, an arbitrator's office ends once he has made and signed his award; he is in principle functus officio. Upon termination of his office, he is entitled to claim his fee for the services rendered to the parties in the arbitration proceedings as well as ask for reimbursement of his expenses (A).

Under most civil law jurisdictions, the arbitrator's duties do not, however, lapse completely upon the signing of the award: national arbitration statutes and rules of arbitration associations impose a (limited) number of post-contractual duties on the arbitrator. These include as a rule the delivery and deposit of the award (B), but may also extend to the correction of computational, clerical and typographical errors (C), the interpretation of the award (D), as well as the issuance of an additional award (E).

A. Compensation

From an arbitrator's point of view, the right to fees and reimbursement of expenses is probably the most important one. Virtually all statutes and rules of arbitral institutions expressly state this right.51

In general, arbitrators are entitled to determine themselves the amount of remuneration due to them. In some cases, they also determine the service fee the parties owe the arbitral institution.52 In the event of a dispute between the arbitrator and a party concerning the amount of remuneration, national courts may be called upon to settle the dispute. For example, Article 814 of the Italian Code of Civil Procedure provides that: "Where arbitrators themselves fix the expenses and the fee due, their decision shall not be binding upon the parties if they do not accept it. In this case the court shall decide." And § 882 of the Greek Code of Civil Procedure states that: "Unless otherwise stipulated in the arbitration [Page48:] agreement, fees shall be fixed by the arbitral award. On request of the parties concerned, the fees shall be determined by the court at its discretion."

Arbitration rules usually establish two mechanisms designed to secure an arbitrator's remuneration: advance payments on costs and withholding of the delivery of the award. It is customary for arbitrators (or arbitral institutions) to request and collect from the parties an initial deposit for their fees and costs once the tribunal is established, as well as supplementary deposits during the course of the arbitral proceedings. Advances on the remuneration to which the arbitrators are entitled are usually settled once the proceedings have ended, advances on expenses after they have been incurred. If a party refuses to comply with this request, the arbitrators can stay the proceedings until their request is satisfied.53

The arbitrator is furthermore given the possibility to withhold his award until the parties have fully paid their fees and expenses. This right of the arbitrator to withhold the award is, for example, expressly acknowledged in Article 23.1 of the ICC Rules of Arbitration which provides that the award will be notified to the parties "provided always that the costs of the arbitration have been fully paid to the International Chamber of Commerce by the parties or by one of them".54

B. Delivery (notification) and deposit of the award

Since delivery is a condition for the final and binding notice of the award which in turn is a condition for its enforcement, arbitration statutes and rules of arbitral institutions require that the award be delivered (notified) to the parties. In ad hoc arbitrations, this duty is imposed on the arbitrators.55 In institutional arbitrations, this duty is imposed either on the arbitrator, or on the arbitral institution itself. For example, § 24.1 of the Arbitration Rules of the German Institute of Arbitration provides that "[o]ne original of the award shall be served [by the arbitration tribunal] to each party by registered letter with a receipt acknowledging delivery"56 while Article 23.1 ICC Rules states that "[o]nce an award has been made, the Secretariat shall note to the parties the text signed by the arbitrator". Arbitration statutes and rules of arbitral institutions deliberately refrain from setting a time limit for the delivery of the award, the reason being that the arbitrator (the arbitral institution) should have the possibility to withhold the award until the parties have paid their fees and expenses.57

National arbitration statutes and rules of arbitral institutions also frequently obligate arbitrators to deposit the award either with the institution,58 a competent national court,59 or some other authority.60 In most cases, the deposit requirement is not viewed as being a condition precedent to either the validity or enforceability of the award. Its purpose is to ensure the continued availability of the award to the parties.

C. Correction of computational, clerical and typographical errors

Virtually all civil law jurisdictions obligate arbitrators to correct computational, clerical and typographical errors. When making such corrections, arbitrators may not broaden, limit or change the parties' rights and obligations stipulated in the award.

In most jurisdictions, the obligation to correct computational, clerical and typographical errors is derived from the arbitrator's judge-like position.61 Only a few arbitration statutes expressly state it. For example, Article 1060 of the Netherlands Code of Civil Procedure [Page49:] provides that: "No later than thirty days after the date of deposit of the award ..., a party may request in writing that the arbitral tribunal rectify in the award a manifest computing or clerical error." Likewise, Article 1475 of the French NCPC states that: "The arbitrator shall have powers to ... correct errors and omissions which materially affect the award ..." In the absence of specific provisions in this respect, the ICC has permitted arbitrators to correct or interpret awards where the arbitrators and parties have agreed that the arbitrators should be entitled to do so or where the applicable curial law has so provided.62

In order to avoid possible abuses and delay by parties dissatisfied with the outcome of the proceedings, arbitration rules impose rather short time limits within which a request for correction may be filed by the parties 63

D. Interpretation of the award

While practically unanimous on the question of correction of computational, clerical and typographical errors, civil law jurisdictions take different approaches on the question whether the arbitrator should be obligated or empowered to interpret an award once it has been served on the parties. While the French and Spanish legislators confer on the arbitrator the power to interpret his award, the Dutch and Norwegian legislators have decided against this possibility for fear that it might permit parties to open new proceedings and would thus disturb the finality of the award.64

E. Additional award

The same situation applies with regard to an arbitrator's power to issue an additional award.

While this duty is for instance expressly stated in Article 1061 of the Netherlands Arbitration Act ("If the arbitral tribunal has failed to decide on one or more matters which have been submitted to it, either party may, not later than thirty days after the date of deposit of the award with the Registry of the District Court, request the arbitral tribunal to render an additional award"),65 it is an open question in other jurisdictions whether the arbitrator has such a power or obligation.66

Conclusion

From the above analysis it appears that the extent of an arbitrator's rights and duties will vary depending on the terms of the arbitrator's appointment contract, the substantive law applicable to this appointment contract, the arbitration agreement concluded between the parties, the law applicable to the arbitration agreement, the rules of the arbitral association administering the proceeding and the curial law.

Because these legal sources are likely to contain conflicting provisions and may thus raise delicate conflict of laws issues, parties, arbitral institutions and arbitrators should attempt to clarify the exact scope of an arbitrator's rights and duties at the outset of any arbitral proceeding. From a draftsman's point of view, this should be done in the arbitrator's appointment contract.

Arbitrators should be aware of the fact that the rules of conduct contained in the aforementioned legal sources apply as early as the establishment process of the tribunal and may extend to a period well after the award has been rendered. They should know that a misconception of their rights and duties as adjudicators may have serious consequences for all parties involved in the arbitral process. Parties in turn should know that they, too, owe arbitrators a number of duties, including an active duty to cooperate in the arbitration proceedings, whose breach entitles arbitrators, or arbitral institutions to stay or terminate the proceedings for just cause.

1
For an analysis of the legal nature and interplay of these two relationships see, e.g., Fouchard, "Les institutions permanentes d'arbitrage devant le juge étatique", Rev. arb. 1987, pp. 225 et seq.; Melis, "Taak en verantwoordelijkheid van arbitrage-instituten", Tijdschrift voor arbitrage 1988.2, pp. 25 et seq.; Robine, "The Liability of Arbitrators and Arbitral Institutions in International Arbitrations under French Law", 5 Arb. Int'l (1989), pp. 323 et seq.

2
Inherent powers are powers which are not derived from contract or statute, but which are exercised by a tribunal by virtue of its being a tribunal, i.e. powers which the tribunal assumes because it considers them necessary to enforce the law: See Black's Law Dictionary (6th ed.).

3
Article 1452, paragraph 1, NCPC reads: "La constitution du tribunal arbitral n'est parfaite que si le ou les arbitres acceptent la mission qui leur est confiée."

4
Article 14(2): "Le tribunal arbitral n'est réputé constitué que lorsque les arbitres ont accepté leur mandat pour la contestation qui leur est soumise."

5
Article 1452, paragraph 2, NCPC reads: "L'arbitre qui suppose en sa personne une cause de récusation doit en informer les parties. En ce cas, il ne peut accepter sa mission qu'avec l'accord de ces parties."

6
See also Article 9 of the UNCITRAL Arbitration Rules; Article 7 of the AAA International Arbitration Rules; Article 3(1) of the LCIA Rules; IBA Ethics Rules 1 through 4.

7
Reprinted in Born, International Commercial Arbitration in the United States (1994), pp. 995 et seq.

8
See, e.g., Article 1692 of the Belgian Judicial Code.

9
Article 1462 NCPC: "Tout arbitre doit poursuivre sa mission jusqu'au terme de celle-ci."

10
See infra at III.5.

11
Article 1454 NCPC: "Lorsque les parties désignent les arbitres en nombre pair, le tribunal arbitral est complété par un arbitre choisi, soit conformément aux prévisions des parties, soit, en l'absence de telles prévisions, par les arbitres désignés, soit à défaut d'accord entre ces derniers, par le président du tribunal de grande instance." See also Article 1006 of the Luxembourg Code of Civil Procedure; § 874 of the Greek Code of Civil Procedure; § 12 of the Swedish Arbitration Act; and Article 1685 of the Belgian Judicial Code.

12
See Rule 5.2 of the 1987 IBA Ethics for International Arbitrators.

13
See, e.g., Article 2(4) of the ICC Arbitration Rules.

14
For a recent comparison of the arbitrator's power to structure the proceedings under civil law and common law systems see Mayer, "Le pouvoir des arbitres de régler la procédure ( une analyse comparative des systèmes de civil law et de common law", Rev. arb. 1995, pp. 163 et seq.

15
Article 1460 NCPC: "Les arbitres règlent la procédure arbitrale sans être tenus de suivre les règles établies pour les tribunaux, sauf si les parties en ont autrement décidé dans la convention d'arbitrage."

16
Article 19 of the UNCITRAL Model Law takes the same approach.

17
See Article 884 of the Greek Code of Civil Procedure. See also Article 19(2) of the 1966 Strasbourg Uniform Law.

18
Article 1456 NCPC: "Si la convention d'arbitrage ne fixe pas de délai, la mission des arbitres ne dure que six mois à compter du jour où le dernier d'entre eux l'a acceptée."

19
See also ICSID Arbitration Rule 46 (award shall be drawn up and signed within 60 days after the closure of the proceedings; the tribunal may extend this period by a further 30 days) or Article 28 of the AAA International Arbitration Rules (awards shall be made promptly after closure of the hearings).

20
Holtzmann/Neuhaus, A Guide to the UNCITRAL Model Law on International Arbitration (1989), pp. 442 et seq.

21
Other examples are § 20 of the Arbitration Rules of the German Institution of Arbitration ("The arbitration tribunal shall encourage an expeditious conduct of the proceedings and render the arbitration award within a reasonable time") or Article 12.1 of the Vienna Rules ("Any party may request the termination of the mandate of an arbitrator who does not perform' his duties or unduly delays the proceedings").

22
See, e.g., Article 13(1)(b) of the Vienna Rules or §§ 8(3) and 9 of the Arbitration Rules of the German Institution of Arbitration.

23
Under Article 457 of the Norwegian Code of Civil Procedure, if the arbitrator does not carry out his duties or unduly delays the proceedings or adjudication of the case, either party may apply to the competent court for a ruling directing him to proceed without undue delay. Should the case be further protracted, the party may ask for the arbitrator's resignation and compensation. See also Article 17 of the Swiss Intercantonal Arbitration Convention.

24
See, e.g., § 8 of the Arbitration Rules of the German Institution of Arbitration: "An arbitrator may be rejected for undue delay in fulfilling his duties as an arbitrator."

25
See Article 2(11) ICC Rules of Arbitration.

26
See Article 829(6) Italian Code of Civil Procedure or Article 45(3) of the Spanish Arbitration Act 1988.

27
See, e.g., Article 1698 of the Belgian Judicial Code.

28
See § 885(2) of the Greek Code of Civil Procedure, Article 30(2) of the Spanish Arbitration Act or § 18 of the Swedish Arbitration Act.

29
See Article 813 of the Italian Code of Civil Procedure or Article 457 of the Norwegian Code of Civil Procedure.

30
Hunter/Paulsson, "A Code of Ethics for Arbitrators in International Commercial Arbitration?" Int'l Bus. Law (1985), p. 154.

31
See also IBA Ethics Rule 5.5: "No arbitrator should accept any gift or substantial hospitality, directly or indirectly, from any party to the arbitration. Sole arbitrators and presiding arbitrators should be particularly meticulous in avoiding significant social or professional contacts with any party to the arbitration other than in the presence of the other parties."

32
See, e.g., Article 2(8) ICC Arbitration Rules or Article 11(1) of the Vienna Rules ("An Arbitrator may be challenged if there are sufficient grounds for doubting his independence or impartiality").

33
See also § 19 of the Arbitration Rules of the German Institution of Arbitration.

34
Article 30(1) of the UNCITRAL Model Law reads: "If during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms" (emphasis provided). See also Holtzmann/ Neuhaus, A Guide to the UNCITRAL Model Law on International Arbitration (1989), p. 823: "The Working Group and Commission considered whether any discretion to refuse to record the settlement should be included in the Law to govern the exercise of that discretion. Ultimately, the Commission adopted the solution set forth in Article 34 of the UNCITRAL Arbitration Rules, which provides that the arbitral tribunal may refuse to record a settlement, but provides no guidelines for the exercise of this power."

35
See, e.g., Hafter, "Gespräche zwischen Schiedsgericht und Parteien", Schweizer Studien ZUT Schiedsgerichtsbarkeit, p. 210.

36
Arbitrators in the Netherlands are, however, apparently rather hesitant in taking the initiative for a settlement: see van den Berg, "National Report on the Netherlands", 24, in International Handbook on Commercial Arbitration (International Council for Commercial Arbitration (ICCA) looseleaf ed.).

37
Cour d'appel de Paris (P Ch. suppl.), 13 janvier 1984, Rev. arb. 1984, p. 531: "Le comportement de l'arbitre au cours de ses opérations ne révèle aucune infraction à son devoir d'objectivité. L'intervention qui lui est reprochée ne manifeste que son souci de rapprochement et de concorde, qui n'est pas étranger à sa mission, la conciliation suivie d'une transaction étant une issue naturelle de l'arbitrage."

38
Whether or not the arbitrator should be able to unilaterally contact one party during settlement proceedings is a highly controversial issue: for discussion see, e.g., ICC, La conciliation préarbitrale ou en cours d'arbitrage (27.9.1983); Hunter/Paulsson, "A Code of Ethics for Arbitrators in International Commercial Arbitration?" Int'l Bus. Law (1985), p. 185; Reiner, ICC Schiedsgerichtsbarkeit (1989) p. 235.

39
See, e.g., Article 17 of the Vienna Rules.

40
Rubino-Sammartano, Il Diritto dell'Arbitrato (Interno) (1991), pp. 240 et seq.

41
See, e.g., Article 1473 French NCPC; § 592 Austrian Code of Civil Procedure; § 823 Italian Code of Civil Procedure; Article 1701 Belgian Judicial Code; § 891 Greek Code of Civil Procedure; Article 19 ICC Arbitration Rules; Article 18 Vienna Rules. See also Article 29 UNCITRAL Model Law; Article 32(4) UNCITRAL Arbitration Rules; Article 48 ICSID Convention.

42
Article 1469 French NCPC: "Les délibérations des arbitres sont secrètes."

43
See also § 27 Arbitration Rules of the German Institution of Arbitration.

44
See, e.g., § 592 Austrian Code of Civil Procedure; § 892 Greek Code of Civil Procedure.

45
See, e.g., Article 1472 French NCPC; § 892 Greek Code of Civil Procedure; Article 32 Spanish Arbitration Act.

46
See, e.g., Article 1472 French NCPC; § 823 Italian Code of Civil Procedure; Article 32(1) Spanish Arbitration Act; Article 1701(5) Belgian Judicial Code; Article 33 Swiss Intercantonal Arbitration Convention.

47
Article 1473 French NCPC; § 592 Austrian Code of Civil Procedure; § 823 Italian Code of Civil Procedure; Article 1701 Belgian Judicial Code; § 891 Greek Code of Civil Procedure; Article 19 ICC Arbitration Rules; Article 18 Vienna Rules. See also Article 29 UNCITRAL Model Law; Article 32(4) UNCITRAL Arbitration Rules; Article 48 ICSID Convention.

48
See Article 1471 French NCPC; Article 823 Italian Code of Civil Procedure; Article 32(2) Spanish Arbitration Act; Article 1701(6) Belgian Judicial Code; Article 464(1) Norwegian Code of Civil Procedure.

49
In contrast, see ICSID Arbitration Rule 47(3): "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."

50
See "Final Report on Dissenting and Separate Opinions of the ICC Commission on International Arbitration", 2 ICC International Court of Arbitration Bulletin No. 1 (June 1991), p. 32; Schwartz, "The ICC Arbitration Rules and the UNCITRAL Model Law", 9 Arb. Int'l (1993), p. 245.

51
See, e.g., Article 814 Italian Code of Civil Procedure; Article 882 Greek Code of Civil Procedure; Article 20 ICC Rules of Arbitration; § 10 Arbitration Rules of the German Institution of Arbitration.

52
See, e.g., Article 35(1) Spanish Arbitration Act or §§ 10(5) and 22 Rules of the German Institution of Arbitration.

53
See, e.g., Article 9 ICC Rules of Arbitration or Article 22 et seq. Vienna Rules.

54
See also Article 16.4 of the LCIA Arbitration Rules.

55
See, e.g., § 592(1) Austrian Code of Civil Procedure; Article 1702 Belgian Judicial Act; Article 1058 Netherlands Arbitration Act; § 465(1) Norwegian Code of Civil Procedure; Article 33(2) Spanish Arbitration Act.

56
See also Article 31(4) UNCITRAL Model Law, Article 32(6) UNCITRAL Arbitration Rules.

57
See supra at V.2. The UNCITRAL Model law did not address the issue for that very reason: see Holtzmann/Neuhaus, A Guide to the UNCITRAL Model Law on International Arbitration (1989), p. 841.

58
See, e.g., Article 23 ICC Arbitration Rules or Article 18(5) Vienna Rules.

59
See, e.g., Article 1702(2) Belgian Judicial Code; Article 1058 Netherlands Arbitration Act; Article 465(2) Norwegian Code of Civil Procedure; § 24 Arbitration Rules of the German Institution of Arbitration.

60
§ 593 Austrian Code of Civil Procedure.

61
This is, for example, the case under Austrian and German law.

62
See Schwartz, Arb. Int'l (1993), p. 248. The Commission on International Arbitration has recently recommended that an obligation of the arbitrator to correct clerical, computational or typographical errors in the award be added as a new sub-section to Article 24 of the ICC Rules of Arbitration.

63
The Spanish Arbitration Act provides for 5 days after notification of the award, the Italian Code of Civil Procedure for 20 days, the Netherlands Arbitration Act for 30 days following the deposit of the award.

64
See van den Berg, "National Report on the Netherlands," p. 25, in International Handbook on Commercial Arbitration (ICCA looseleaf ed.); Haug, "National Report on Norway," p. 14, in International Handbook on Commercial Arbitration (ICCA looseleaf ed.).

65
See also ICSID Arbitration Rule, p. 49.

66
See, e.g., Cremades, "National Report on Spain," p. 16, in International Handbook on Commercial Arbitration (ICCA looseleaf ed.).