Introduction

The rights and duties of arbitrators have different sources. Some arise as a matter of law, others by virtue of the arbitration rules under which the arbitrators accept to serve and others as a result of agreements between the parties. Still other "ethical" obligations can be said to be inherent in the arbitral function itself. Even if it is today also widely considered that such rights and duties arise out of a distinct contractual relationship between the arbitrators, on the one hand, and the parties, on the other,¹ a corresponding document often is not drawn up.²

Thus, the particular rights and duties of the parties, arbitrators (and arbitral institutions) as among each other are usually required to be inferred from the arbitrator's agreement to serve and the rights and duties arising out of such acceptance. Indeed, the only document that ICC arbitrators are usually required to sign at the time of their appointment is a declaration that they "accept to serve as arbitrator under the ICC Rules of Arbitration", are "able and available to serve... in accordance with all of the requirements of those Rules", "accept to be remunerated in accordance therewith" and are "independent of each of the parties and intend to remain so".³

Because the rights and duties of arbitrators expressly set forth in legislation or in arbitration rules, including the ICC Rules of Arbitration (the "ICC Rules"), are usually of a very general character, various efforts have been made to articulate arbitrators' rights and duties - in particular, their duties - with greater specificity. This has led to the elaboration of various codes of conduct, ethical rules and guidelines, the most notable example in relation to international commercial arbitration being the "Rules of Ethics for International Arbitrators" prepared by a committee of the International Bar Association's Section on Business Law (the "IBA Rules").⁴

Although such rules are not binding in and of themselves and some are of a purely ethical character, others are, in fact, primarily an attempt to elaborate upon or amplify further such general requirements as may already exist by virtue of the law and many arbitration rules. The specific prescriptions that they lay down may or may not therefore be in conformity with [Page68:] the jurisprudence of a particular jurisdiction or the expectations and practices of a particular arbitral institution.⁵

It is for this reason, in part, that there have occasionally been calls for the elaboration by the ICC of a written code of conduct for arbitrators acting in ICC proceedings. However, the International Court of Arbitration of the ICC (the "ICC Court" or the "Court") has been reluctant to produce such a code.⁶ Not only would this be a daunting task - as nearly every aspect of the arbitral process may potentially be relevant - but the extraordinary variety and diversity of factual circumstances, not to mention divergent legal and cultural norms, that are encountered in international proceedings defy easy codification. Even certain principles, which in the abstract may appear glaringly self-evident, can take on a dimmer, more equivocal appearance in the light of actual experience.⁷

The ICC Court has therefore, until now, preferred to deal with issues relating to the arbitrator's rights and duties on a case-by-case basis. It is required to do so essentially at three stages of the arbitral process. First, such issues must be considered when the arbitral tribunal is being constituted, obviously in order to ensure, to the extent reasonably possible, that the persons appointed are in a position to conduct the arbitration satisfactorily. Second, the Court may be required to consider during the course of the arbitral proceedings whether the arbitrators are properly fulfilling their functions and, in particular, whether they ought to be replaced (see, e.g., ICC Rules, Arts. 2.8 and 2.11). Third, at the conclusion of the arbitration, the ICC will, in scrutinizing the award and fixing the arbitrators' remuneration, be required once more to consider the arbitrators' performance.

At each of these stages, the ICC Rules provide the Court with considerable discretion. The Court is not required to communicate the reasons for its decisions. Indeed, the Rules (Art. 2.13) expressly state that it shall not do so in the case of any decision concerning the "appointment, confirmation, challenge or replacement of an arbitrator". In the absence of specific rules or guidelines, the parties are therefore required to place their confidence in the soundness of the institution's judgment in respect of such matters. (This is, in the circumstances, moreover, one of the most important matters that parties should usually bear in mind when selecting an arbitral institution.)

The issues that the ICC Court has most recently confronted in respect of the arbitrator's rights and duties will, thus, be the subject of the remainder of this paper. It is not, however, intended that the discussion be exhaustive. The subject is far too vast for that. Those rights and duties that are considered are those that appear most frequently to be acknowledged internationally, with the exception, however, of the important matters of independence and impartiality. Those two topics have been excluded as they are not only large subjects in and of themselves, but they have also been the subject of an earlier joint colloquium.⁸

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In addition, without wishing in any way to minimize the importance of an arbitrator's rights, I will have relatively little to say on that subject. Indeed, apart from the powers that the arbitrator may enjoy in connection with the organization and conduct of the arbitral proceedings, the arbitrator's principal right will usually be to remuneration, a subject with which I have already dealt elsewhere.⁹

I. Duties

A. Competence

The IBA Rules begin with the proposition that:

International arbitrators should be impartial, independent, competent, diligent and discreet.¹⁰ (Emphasis added.)

A general duty of competence is then articulated as follows (IBA Rules, Article 2.2):

A prospective arbitrator shall accept an appointment only if he is fully satisfied that he is competent to determine the issues in dispute, and has an adequate knowledge of the language of the arbitration.¹¹

That an arbitrator should be "competent" would appear to be self-evident. Indeed, not only is competence a normal condition for the exercise of all professional activities, but, arguably, it is an even more important requirement in the context of arbitration, which has long been promoted precisely because of the opportunity that it affords the parties, among other things, to refer their disputes to persons of specialized skill. As has recently been remarked:

Arbitration thrives on its unique ability to deploy a wide combination of skills.¹²

This being said, neither arbitral legislation nor arbitral rules (including the ICC Rules) normally include an express stipulation that an arbitrator must be "competent".¹³That they do not do so is in all likelihood a reflection of the difficulty of articulating a definition of "competence" upon which all would agree in all cases, in the context of international arbitration, in particular, and the added difficulty, even assuming that such a definition could be formulated, of determining whether a particular individual can be said to satisfy it.¹⁴

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Thus, although there has been much learned commentary on the qualifications and skills that should be possessed by an international arbitrator,¹⁵ it is an entirely different matter to suggest that an arbitrator lacking one or more of such skills should necessarily be considered to be incompetent (unless, of course, the arbitrator lacks skills or qualifications that have been expressly agreed upon in the parties' arbitration agreement).

Moreover, the appreciation of an arbitrator's competence - from the outset a subjective exercise - will often be affected by the importance accorded to party autonomy in the constitution of the arbitral tribunal in an international arbitration. Indeed, the freedom of parties to agree upon a sole arbitrator or, in the case of a three-member tribunal, to each designate an arbitrator (see ICC Rules, Arts. 2.3 and 2.4) has long been considered vital in promoting and maintaining the broadest possible confidence in the international arbitration process, particularly where, as in the case of the ICC, parties are drawn from all over the globe.¹⁶ The reasons for this have been well-stated:

In arbitration, parties accept virtually non-appealable finality of the arbitrators' decision largely in exchange for the ability to participate in the selection of their tribunal rather than accept an anonymous, governmentally chosen decision maker - a judge - whose rulings may be less predictable but generally are subject to appellate review. In such a setting, a party seeks maximum advantage from its right to control the identity of the decision makers and seeks to have as one of the members of the tribunal a person whose ability and general inclination of views can be assessed in advance. This is particularly important in an international arbitration, where arbitrators of three different nationalities may be chosen and each party may desire that one member of the tribunal be familiar with its own law and customs. Party-appointed arbitrators also may be expected to play a role in selecting the third arbitrator, bringing their judgment and experience to bear on this important task.¹⁷

The party-appointed arbitrator's special role, which has essentially been conceived to raise each party's level of comfort with the arbitration, inevitably affects to some extent the appreciation of that arbitrator's competence. Indeed, whatever the arbitrator's objective skills may be, the fact that one of the parties has confidence in that person is an important factor that may, in and of itself, serve the arbitral process.

Similarly, the competence of the sole or third arbitrator - as opposed to the party-appointed arbitrator - has to be evaluated in relation to the need for a person of unquestioned neutrality. Because arbitration has developed internationally in large measure due to the desire of parties to refer their disputes to a neutral forum, most international arbitration institutions, including the ICC, have adopted the practice of choosing sole or third arbitrators from countries other than those of the parties to the arbitration, unless the parties otherwise agree.¹⁸

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By requiring that the sole arbitrator or chairman of the arbitral tribunal shall be of a neutral nationality, the ICC Rules, like many other arbitration rules, might be said to accord greater importance to neutrality than competence, at least in respect of the law to be applied in the arbitral proceedings. Of course, there need not necessarily be any conflict between the need for neutrality, on the one hand, and competence, on the other, and, indeed, both needs can usually be reconciled to the parties' satisfaction. (Moreover, whenever a tribunal is composed of more than one arbitrator, there will usually be at least one arbitrator who is trained in the law that governs the contract.¹⁹) But it is nevertheless a particularity of international arbitration that decision-making responsibility is regularly conferred upon persons with no legal training or formal qualification in the law governing the dispute between the parties.²⁰

Thus, the notion of "competence", in addition to being highly subjective, is a relative one that needs to be considered in conjunction with the principles of party autonomy and neutrality, both of which are equally vital to ensuring confidence in the international arbitral process.

Apart from such considerations, arbitrators wishing, in accordance with the IBA Rules, to satisfy themselves of their competence - no matter how that term may be understood - may encounter certain practical difficulties. Thus, for example, it may not be clear, when a tribunal is being constituted, what all of the issues are that will have to be dealt with in the arbitration and in what manner. It may not yet be known what law is to be applied, what language is to be used or what procedures the parties may ultimately agree upon (if they can so agree). The prospective arbitrator may also not know, at the outset, the extent to which the issues raised will require expert knowledge of a particular industrial or commercial field or of more general legal issues.²¹ In addition, the arbitrator, if a co-arbitrator, may not yet know who the other arbitrators will be. However, this too could affect an arbitrator's view of his or her competence as the respective skills of arbitrators may be complementary.

All of the foregoing is simply meant to demonstrate that many more difficulties than immediately meet the eye arise out of the seemingly self-evident proposition that a prospective arbitrator shall accept an appointment only if satisfied of his or her competence.

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When considering whether to confirm arbitrators proposed by the parties, the ICC Court will, thus, generally be reluctant to attempt to assess their competence. Any such assessment could involve the Court in the consideration of matters that may be difficult to evaluate objectively and that may, in some cases, be the subject of considerable controversy. Moreover, the Court retains the ability under the Rules (Article 2.11), in any event, to replace arbitrators who are not fulfilling their functions satisfactorily during the course of the arbitration. Generally, therefore, the Court will be inclined to confirm party-appointed arbitrators, if independent, without regard to their qualifications.²²

Thus, if the parties are concerned that all arbitrators should possess certain specific qualifications, they would be well-advised to say so in their arbitration agreement, although, if they choose to do so, they should take care that they do not so restrict the possible pool of arbitrators that they place in jeopardy their ability (or that of an appointing authority) to identify qualified persons.²³ It is, in fact, relatively uncommon in the arbitration agreements that we see at the ICC for the parties to set forth the arbitrators' required qualifications. It is also unusual for the parties to make any related submissions to the ICC on this subject, although such submissions are welcomed by the ICC together with any other information that can assist the institution in designating suitable arbitrators.

Only very occasionally, moreover, is the Court faced with an objection to an arbitrator on the ground that such person is not suitably qualified to serve in a particular case. That relatively few such objections are received presumably reflects the appreciation of most parties that there is little ultimately to be gained from the appointment of arbitrators who are manifestly incompetent. Indeed, any such arbitrator would be unlikely to gain the respect of, or to establish a good working rapport with, his or her fellow arbitrators.

Certain of the specific issues that do occasionally arise at the ICC, however, with respect to the arbitrator's competence are now considered.

1) Language

Article 2.2 of the IBA Rules lays down the seemingly reasonable requirement that an arbitrator should accept an appointment only if in possession of "an adequate knowledge of the language of the arbitration". The rationale for such a rule has been clearly articulated in a leading commentary on international arbitration:

It is highly desirable (not to say essential) that an arbitrator has an adequate working knowledge of the language in which the arbitration is to take place. This is an obvious requirement, but one which is forgotten not only by parties but by appointing authorities as well. If an arbitrator is appointed who does not have a good knowledge of the language of the arbitration, it becomes necessary to engage an interpreter to translate the evidence of the witnesses and the arguments of the lawyers into a language which can be understood by the arbitrator concerned. Translating oral evidence accurately into another language is a very difficult task, particularly where a witness is being examined in minute detail on his evidence of fact or opinion. It also adds considerably to the expense of the arbitral proceedings; first, because of the interpreter's fees and, secondly, because of the extra time which is taken if everything of importance has to be [Page73:] translated from the working language of the arbitration into a language which the arbitrator himself can understand.²⁴

The ICC Court, without in any way discounting the obvious importance of the language of the arbitration, has nevertheless been reluctant to establish any absolute or rigid practices in this respect. The ICC Rules themselves do not contain any linguistic requirements, and in some cases the language of the arbitration will be a disputed issue between the parties when the tribunal is being constituted.²⁵ Of course, the ICC Court will always seek to ensure that any arbitrators appointed by it have sufficient knowledge of the language of the arbitration. It can also be expected to consider whether a co-arbitrator's lack of knowledge of the same should be a bar to the confirmation of that arbitrator by the Court.²⁶

Indeed, in one recent case, the Court refused to confirm an arbitrator nominated by a party (in replacement of an arbitrator who had resigned) when the person nominated did not understand the language stated to be the language of the arbitration in the Terms of Reference and the other party objected to the nomination. The circumstances of the case were also such that the party that had nominated the person in question should not have had any difficulty in designating an arbitrator with knowledge of the language of the arbitration.

There have not, however, been any recent cases in which the Court has refused to confirm a co-arbitrator, or accepted a challenge, on the ground that the language of the arbitration was a disputed issue and the person challenged did not understand both of the languages concerned. Indeed, the Court only recently rejected a challenge filed against a party-appointed arbitrator in such circumstances. In that case, the challenging party contended that Arabic, which the arbitrator being challenged did not understand, would "have to be" the language of the arbitration. Although the contract did not specify the language of the arbitration, it was argued that Arabic should be used because the law governing the contract was only published in Arabic. The other party, however, did not accept the challenging party's contentions concerning the applicable law. It also argued that the language of the arbitration should be English as the contract was in English and all of the persons involved in its negotiation and execution spoke English, but not necessarily Arabic. The Court rejected the challenge, but subsequently appointed a chairman who understood both English and Arabic so as not to appear to prejudice in any way the decision that would ultimately be taken by the arbitral tribunal concerning the language of the arbitration.

The Court also rejected another challenge made where the complaint was that, although the arbitrator (a co-arbitrator) had a satisfactory knowledge of the language of the arbitration, he could not speak the language in which the law applicable to the arbitration was written. Although the Court would generally endeavor to designate as sole arbitrator or chairman a person capable of working, to the extent reasonably necessary, in the different languages relevant to the arbitration, it would not normally consider the knowledge of all such languages to be a requirement in the case of party-appointed arbitrators.²⁷ Moreover, even with respect to the chairman or sole arbitrator, in a particular case, it might be more important for the person appointed to possess other experience or skills if it were not possible to identify a person with all such skills and all of the linguistic abilities that might be relevant.²⁸

Finally, the Court would not normally refuse to confirm an arbitrator nominated by a party when the arbitration is to be conducted in two [Page74:] languages, as sometimes occurs, and that arbitrator does not master both languages.²⁹

2) Legal qualifications

Consistent with other arbitration rules and most arbitration laws, the ICC Rules do not require that an arbitrator have any legal training or experience,³⁰ and, indeed, arbitrators have often been drawn from non-legal professions, although much more so in domestic, as opposed to international, arbitration. In international arbitration cases, notwithstanding the absence of any formal requirement, the parties themselves almost always designate lawyers (or other legal professionals), and the ICC also ordinarily assumes, unless otherwise advised, that the parties expect it to do the same when appointing the sole or third arbitrator. As a former Secretary General of the Court has written:

in international commercial arbitrations, where awards must generally set out the reasoning of the arbitral tribunal; where the validity and enforceability of awards, if challenged, are decided upon by judges; and where questions of jurisdiction, applicable law and statutory interpretation must often (and increasingly) be decided upon by the arbitral tribunal, legal training is a minimum requirement and legal practice is preferable.³¹

In appointing arbitrators, the ICC Court will, thus, normally endeavor to ensure that the person appointed - while of a neutral nationality - has been trained in, or is otherwise familiar with, either the law likely to be applied in the arbitration, if this can be determined, or a similar legal system. The Court can also be expected to take into account in this regard the identity and skills of the other arbitrators, if any, and the ease with which the law in question can otherwise be apprehended through available publications and possible access to experts. Only very rarely have ICC arbitrators been opposed or challenged on the ground that they did not have appropriate legal qualifications, and such challenges as have been made have generally not been successful.

Thus, for example, in one recent case, the defendant party (a Swiss company) challenged the English lawyer appointed by the Court as sole arbitrator in an arbitration to be conducted in India between that party and an Indian claimant. The arbitration clause provided that "German law shall apply" in the arbitration. Although the English lawyer appointed had studied in Germany, understood German and had previously been involved in a number of litigation matters in England in which German law was relevant, he was challenged on the basis that he:

has no German law degree and is not an expert on German law himself. Even though he might have spent some time in Germany during his legal education long years ago he has never obtained sufficient knowledge and experience as regards substantive German law, in particular the German law of trade as set out in the German Commercial Code and in other regulations which are very likely to be applicable and decisive in this case:

…

Furthermore, there is no possibility for Mr … himself to gain the required depth of knowledge as regards the relevant substantive German law, in particular the German Commercial Code and certain regulations of the German Civil Code. This is because anyone who is to play a judging role in applying German law will (i) have to have the overview on all regulations which might be applicable to the case, which I expressly doubt - other than a qualified German lawyer - will have, and (ii) will secondly have to understand not only the German law and regulations as they stand but - in order to obtain the admissible interpretation of such law - will have to be able to find and [Page75:] understand the German judgments published in accordance with specific regulations, the German commentaries published for example with reference to the German Commercial Code and ail major German legal literature published in this connection. Since Mr … as he himself admits, does not speak German, I, therefore, very much doubt, that he will be able to apply the German law correctly in all relevant respects.

From all this follows that an expert on German law would have to be instructed by the court during the proceedings anyhow in order to support the arbitrator in avoiding to come to a wrongful decision, if Mr … remained to be the appointed sole arbitrator in this case.

This would also not be fair towards the parties under a cost point of view because they would have to cover more expenses incurred in connection with the proceedings, although they had chosen to avoid incurring too much legal costs by deciding for a sole arbitrator.

The challenged arbitrator responded as follows:

It is true that I have no German law degree and am not myself an expert in German law. I have, however, over many years, had experience of handling cases governed by German law. This experience has involved discussing in detail rival contentions as to German law advanced by German lawyers acting for the parties and testing such contentions by evidence and cross-examination. As a member, committee-member and Chairman of ... during a period of 15 years, I have participated in or chaired many hours of comparative seminars discussing and comparing German and English legal topics, mainly of a commercial nature.

…

I would expect to be able to judge fairly on the basis of the parties' respective evidence and arguments - just as a continentally trained lawyer would do.

Had the Respondent been concerned to provide for a German-qualified arbitrator as well as for German applicable law, it could have so stipulated in the contract.

Alternatively, it could have sought to influence the appointment by stipulating for an arbitrator to be chosen by the parties. Instead, it left the appointment of a suitable arbitrator to the ICC.

The Indian claimant, for its part, opposed the challenge, and it was ultimately rejected by the ICC Court.

So too did the Court reject a challenge recently made against a Singaporean lawyer who had been appointed as sole arbitrator in a case between parties from Gibraltar and Sri Lanka and in which Sri Lankan law was to be applied. There, as in the former case, the Court considered, when appointing the arbitrator, that he would be capable of applying the law governing the arbitration even if he had no format training in that law. Of course, the Court could not, in any event, have designated a Sri Lankan national to act as sole arbitrator (unless both parties agreed).

Although the challenges made in each of the above cases were rejected, they reflect the concern that parties may feel - particularly when a sole arbitrator is being appointed - if the person who will be deciding their case has no formal legal qualification in the law applicable to the arbitration. Situations such as this, which are not uncommon, demonstrate again how relative a notion competence can be in an international arbitration.

3) Expertise in the commercial or technical field that is the subject of the arbitration

It is a common expectation of parties that arbitrators will be familiar with the field (e.g., maritime, construction, intellectual property) that is the subject of the arbitration. (Indeed, technical expertise in certain fields, such as maritime and commodity arbitration, in particular, has traditionally been regarded as essential.³²)

In appointing arbitrators, the ICC will therefore always endeavor to identify a person knowledgeable in the field that is the subject of the arbitration, and all prospective ICC [Page76:] arbitrators are required to indicate their relevant areas of expertise on the standard form of curriculum vitae to be completed by them prior to appointment. However, the ICC Court has never applied any rigid requirements in this regard and, indeed, there have been no recent challenges of ICC arbitrators on the ground that they lacked sufficient commercial or technical expertise.

The ICC Rules, moreover, expressly provide that an arbitrator may be assisted by an expert in a matter referred to ICC arbitration (ICC Rules, Art. 14.2). It is therefore specifically contemplated by the ICC Rules that the arbitrators themselves may not possess all of the relevant technical expertise.³³

The extent to which arbitrators are expected to have the training and knowledge necessary to be able to make decisions with respect to technical issues without the assistance of an expert appears, in large measure, however, to be a matter of legal culture. In ICC arbitrations, technical experts are almost exclusively appointed by lawyers from continental European countries (except notably the Nordic countries) and from other countries with similar legal systems.

4) Expertise in arbitration

It has been stated that:

Probably the most important qualification for an international arbitrator is that he should be experienced in the law and practice of arbitration.³⁴

This is a widespread view, particularly in regard to a sole arbitrator or chairman of an arbitral tribunal. It is, moreover, generally considered that any such arbitration experience should include experience of international arbitration accompanied by both "managerial ability"³⁵ and "international mindedness",³⁶ for untold damage can be done to the international arbitration process when an arbitrator's attitude and approach to a case are unduly parochial or chauvinistic.

In selecting arbitrators, the ICC Court will, thus, generally seek to identify persons with international arbitration experience. However, the Court does not regard this as either a rigid or absolute requirement.³⁷ Nor will it refuse to confirm an arbitrator nominated by a party solely on the basis that that person has no prior arbitration experience. In those cases, however, where the tribunal is composed of three arbitrators and neither of the co-arbitrators has any significant experience of international arbitration - or ICC arbitration, in particular - the ICC will generally seek to ensure (when the choice is left to it) that the third arbitrator, at least, has sufficient experience to conduct the arbitration in a satisfactory manner.

The ICC has not received any challenges, in recent years, founded on an arbitrator's lack of arbitration experience.

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5) Age, physical and material resources

Although matters such as age, health and an arbitrator's material resources may not relate strictly to the issue of competence, they obviously may nevertheless have an important impact on the arbitrator's ability to perform effectively and efficiently. Increasingly, moreover, the telecommunications facilities available to an international arbitrator will affect the arbitrator's ability to perform in accordance with the parties' (and the arbitral institution's) expectations. We have not yet reached the day when an arbitrator can be said to have a duty to possess a telefax machine. However, parties will increasingly expect this.

The ICC Court, for its part, does not impose any requirements in respect of such matters. Nor has it done so in regard to the arbitrator's age, although this may nevertheless be a legitimate consideration in certain cases.

B. Availability and diligence

As arbitration is usually expected to be a relatively expeditious process, all arbitrators should be in a position to devote the time necessary to permit the arbitration to proceed as rapidly as may be appropriate in the circumstances.

The principle seems obvious and is universally recognized. Thus, for example, the IBA Rules stipulate (Article 2.3) that:

A prospective arbitrator shall accept an appointment only if he is able to give to the arbitration the time and attention which the parties are reasonably entitled to expect.³⁸

It is, moreover, further stipulated that (Article 7):

All arbitrators should devote such time and attention as the parties may reasonably require having regard to all the circumstances of the case ...³⁹

Certain arbitral institutions provide expressly in their Rules that every arbitrator appointed must be sufficiently available to conduct the arbitration as expeditiously as possible. Although the ICC Rules do not explicitly set forth such a requirement, they do contain specific time limits - both for the establishment of the arbitrators' Terms of Reference and the issuance of their final award. Moreover, the Rules (Article 14.1) also require the arbitrator to "proceed within as short a time as possible to establish the facts of the case" (emphasis added). It is therefore clear that time is of the essence.⁴⁰ This being said, the time limits set forth in the Rules commonly have to be extended in ICC cases. Even in circumstances where everyone is agreed as to the arbitrator's general duties, difficulties may arise in practice, both with respect to the arbitrator's availability and his or her duty of diligence.

1) Availability

Notwithstanding the good sense and apparent simplicity of the IBA Rule, ensuring an arbitrator's availability may sometimes be problematic. This is because, to begin with, the organization and conduct of an arbitration proceeding will not necessarily be entirely within the control of either the arbitral institution or the arbitrators, but may depend to a large degree on the wishes and conduct of the parties. Indeed, the parties enjoy considerable freedom under the ICC Rules (and most other [Page78:] rules) in establishing the procedures to be followed in the arbitration (see, in particular, ICC Rules, Art. 11). Thus, for example, timetables for the exchange of pleadings and evidence and the conduct of hearings may be dictated by requirements of the parties of which the arbitrators may have no knowledge at the time of their appointment. (See further, with respect to this, Section I.F.1 below). Sometimes, moreover, the parties will wish to suspend the conduct of an arbitration pending, e.g., settlement discussions or the resolution of related litigation.

It will therefore often be the case, when arbitrators are appointed, that they will not be able to anticipate how precisely the arbitration is likely to evolve and whether or to what extent the conduct of the proceedings may or may not come into conflict with other professional commitments. Arbitrators may, moreover, have only a vague idea of the extent of the work that may be required when accepting their appointment. They may also not be able to anticipate the complexity of the issues that are likely to be raised or whether there may be counter-claims or preliminary issues to be resolved (e.g., with respect to the arbitral tribunal's competence). Thus, a dispute that may initially appear to be straightforward may evolve into one that is, in reality, much more complex and time-consuming than may have been anticipated at the time of the arbitrators' appointment.

For all of these reasons, it may be difficult for any arbitrator, when accepting an appointment, to pledge to remain completely available to conduct the arbitration in accordance with the parties' wishes. As one ICC arbitrator recently noted on this subject in a letter to the Secretariat:

availability clearly involves some commitment but cannot, I think, involve a commitment to arbitrate anywhere in the world for an unlimited period, e.g., for six months in Murmansk.

Yet another prospective arbitrator put it this way:

I enclose duly completed copies of your forms accepting the nomination, but it must be subject to clarification on one point. Your covering letter indicates that the Secretariat stresses that the arbitral mission demands "complete availability until the closing of the matter". I am of course in practice: while I accept that if I am appointed I shall be available to see the Arbitration to its conclusion, that availability will be such as can be fitted in with other prior professional commitments. If complete availability is intended to mean that all other professional commitments are to be shelved, then I would not be in a position to accept the nomination. I trust the above is clear and look forward to hearing from you.

Of course, the ICC does not make it a condition of an arbitrator's engagement that he or she has no other professional commitments. Nor are arbitrators expected to engage themselves unqualifiedly with respect to requirements that may be ill-defined or to a certain degree unforeseeable.⁴¹ However, no one is ever obliged to act as an arbitrator, and it is therefore reasonable to expect that anyone who accepts to do so will be willing to give priority to that work so that it can be performed in accordance with the parties' reasonable expectations.⁴² Indeed, it is those expectations that would appear to be paramount in this regard, and arbitrators, prior to accepting an appointment, should therefore always endeavor to determine what those expectations may be and to make an assessment of the work that is likely to be required, based on the information that is then available.

It is, of course, appreciated that this will not always be easy and that the parties themselves arguably have certain responsibilities of their [Page79:] own in this connection. Indeed, the parties should themselves endeavor to determine, prior to nominating or agreeing upon an arbitrator, whether that person is, in fact, sufficiently free of potentially conflicting commitments. Since joining the ICC, however, I have been struck by the number of occasions on which parties (or co-arbitrators) have appointed as arbitrators persons of admittedly great ability and distinction, but with far too many other commitments to permit them to devote as much attention to the arbitration as may be required to permit it to be resolved rapidly. The ICC has, in such circumstances, generally been reluctant to seek to interfere with the parties' choice, although it nevertheless seeks to impress upon the persons so appointed, before they accept to serve, the requirements of the ICC Rules and the ICC's expectation that they will devote such time to the case as may be required to conduct it in accordance with the same.

2) Diligence

Like availability, the concept of diligence is a relative one. In this regard, the related IBA Rule (Article 7) is expressed with reference to what the "parties may reasonably require". Other authorities have stated that the arbitrators' duty is to complete the arbitration within a "reasonable" period.⁴³ As always, however, reasonable people may differ with regard to what is reasonable.

Where the parties have themselves agreed on what is "reasonable", then it seems relatively clear that the arbitrators must endeavor to comply with their wishes, particularly if they were known prior to the arbitrators' appointment. If the parties' wishes were not known to the arbitrators before they accepted their appointment and could not reasonably have been anticipated, then the arbitrators may be justified in resigning if it is not possible for them to comply with the same.⁴⁴ More often than not, however, the parties may have different views as to how an arbitration should be conducted and in what period of time it can reasonably be completed.

In ICC arbitrations, of course, the arbitrators have as their point of reference at the outset the time limits that are set forth in the ICC Rules (which are, however, extendable) as well as the requirement of Article 14.1 that they shall proceed "within as short a time as possible". In every case, the arbitrators will also have to take into account the particular circumstances of that case and the parties' expectations. In this regard, arbitrators may be required to weigh the need for expedition against the need for fairness. Given the finality of the arbitration process and the limited recourse available against arbitral awards in many jurisdictions, it is vital that due process and procedural fairness not be emasculated solely in the interest of achieving greater levels of speed and economy.⁴⁵ In international arbitrations, in particular, there are a number of factors that may slow the process down.

A recent challenge of an arbitrator in an ICC case, although not successful, highlights the kinds of difficulties that arbitrators may confront when they wish to proceed diligently in an international arbitration. In the case in question, the arbitrator fixed very stringent deadlines for the submission of pleadings by the parties. There was first to be an exchange of pleadings with respect to his jurisdiction, which was challenged by the defendant, and the arbitrator then proposed that, should he decide to retain jurisdiction, notwithstanding the defendant's objection, or should he postpone a decision thereon, the defendant's brief on the merits would have to be submitted within two working days from receipt of the claimant's brief. That two-day period was subsequently extended to two weeks, and the arbitrator, in fixing such a deadline, stated that he was guided by local practice (in this case, Singapore).

The defendant criticized the arbitrator's order in the following terms:

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we submit that by attempting to justify a key procedural ruling by reference to the practice of the legal system in which, "for better or worse this Arbitrator has always laboured" … the Arbitrator has demonstrated that he is unable or unwilling to recognize that procedural rules and practices which may be appropriate for a jurisdiction some 570 square kilometers in area, where the judges and counsel all reside in the jurisdiction, speak and read the language in which the laws and court decisions are written and are all trained in those laws, are not automatically appropriate for an ICC arbitration with the disparate international elements present in this arbitration.

Those disparate international elements included the following:

(i) claimant, defendant, the arbitrator and the parties' counsels were of different nationalities and resided in different countries in both Europe and Asia;

(ii) counsel for the defendant resided in Europe, half way around the world from his client (an Asian company) and from the site of the project (in yet another Asian country) that was the subject of the arbitration;

(iii) the law applicable to the arbitration was foreign to defendant's counsel, who would be required to consult with a lawyer knowledgeable in that law;

(iv) while the arbitration was to be conducted in English, the applicable law was in the Chinese language, which neither the defendant nor its counsel could read, and translations would have to be prepared, and review and analysis of all relevant legal arguments would therefore be slowed.

There is little question that elements of this kind may have an impact on the speed with which an arbitration may be conducted.

It can, of course, be argued that parties should take account of such considerations in selecting their counsel. However, it is generally considered to be an advantage of arbitration that parties can be represented by the counsel of their choice. The freedom accorded to parties in this regard may sometimes have as an inevitable consequence a certain amount of delay. (Similar considerations may, moreover, apply to the selection of arbitrators, as discussed above.) Such delay may nevertheless be a relatively small price to pay in order to ensure that the process has the confidence of all parties and that they are willing to cooperate in it.

It is therefore necessary to approach the question of diligence in international arbitration with a certain amount of circumspection. Indeed, apart from their international character, certain disputes are simply so complex or technical that they are not capable of fair resolution as rapidly as might be the case, for example, with respect to a dispute over the quality of a shipment of lime juice.

This being said, many international commercial disputes are capable of being resolved within the time limits set forth in the ICC Rules - indeed, as the ICC's recent fast-track arbitration experiences have vividly demonstrated, some disputes are capable of resolution even more quickly⁴⁶ - and unjustified delay of the arbitral process is not acceptable. When arbitrators are not advancing an arbitration with sufficient diligence, they may therefore be replaced by the ICC Court in accordance with Article 2.11 of the ICC Rules.⁴⁷ Although this ultimate sanction is rarely invoked, as the replacement of an arbitrator, particularly at an advanced stage of the proceedings, can be even more disruptive to an arbitration than an arbitrator's delay in conducting it, the ICC Court has nevertheless replaced arbitrators from time to time for failing to conduct the proceedings with sufficient diligence. It is to be emphasized in this regard that the Court's possible extension of the time limits set forth in the Rules for the Terms of Reference and the final award will not preclude the Court from subsequently replacing an arbitrator on the ground of delay under Article 2.11.⁴⁸

[Page81:]

The foregoing discussion of diligence has focused primarily on how the arbitrator's duty may be shaped by the parties' expectations and the specific circumstances of the dispute between them. Occasionally, however, external events may intrude that test the limits of the arbitrator's obligation to proceed with the arbitration. Are arbitrators obligated to proceed, for example, if, in doing so, they may be exposing themselves to a risk of personal injury or possibly even death (e.g., when a hearing or other meeting is required to be held in a place where there is civil unrest)? Are arbitrators under an obligation to proceed if they may, as a result, place themselves in contempt of an order of a court that, in the arbitrator's view, does not validly have jurisdiction over the arbitration? Should arbitrators proceed if personally threatened by a party to the proceedings?

These are issues that do occasionally arise in ICC arbitrations and that lead, in turn, to the question of whether and in what circumstances an arbitrator is required to complete the arbitral mission.

C. Completion of the arbitral mission

Insofar as arbitrators have a duty to proceed with diligence, it would appear to follow that they should also not withdraw from an arbitration without just cause. Indeed, the withdrawal of an arbitrator at an advanced stage of an arbitration may be much more inimical to the parties' interest in securing the rapid and cost-effective resolution of their dispute than the plodding arbitrator who, at least, stays the course.⁴⁹ A curious omission, therefore, from the IBA Rules and certain other deontological codes (e.g., the ABA/AAA Code, see note 4 above) is their failure to address the circumstances in which an arbitrator may legitimately withdraw from an arbitration, except possibly when requested by one or more of the parties to do so (see the ABA/AAA Code, Canon II.E).

The ICC Rules, for their part, do not permit an arbitrator to resign without the Court's approval (ICC Rules, Article 2.10). Certain arbitration laws also expressly stipulate that arbitrators must complete their mission.⁵⁰ However, this is not universally the case, a notable exception being the UNCITRAL Model Law, which (see Article 15) permits an arbitrator to withdraw "for any ... reason".⁵¹ During the discussions that preceded the completion of the Model Law, it was proposed to include a provision that would prohibit an arbitrator from resigning for "capricious reasons".⁵² However, it was ultimately concluded that:

it is impractical to require just cause for the resignation (or to attempt to list all possible causes justifying resignation) since an unwilling arbitrator could not, in fact, be forced to perform his functions.⁵³

While this may be true, the parties to an arbitration may nevertheless have a legitimate interest in establishing that an arbitrator's withdrawal in a particular case is in breach of a duty, mandated by law or an institutional rule, rather than being a matter left solely to the arbitrator's discretion. Indeed, in a recent judgment of the Swiss Federal Tribunal, in [Page82:] connection with an ICC arbitration in which a co-arbitrator had withdrawn (illegitimately in the view of the ICC Court and without its approval), it was recognized that an arbitrator may be liable to the parties for damages resulting from his or her unjustified withdrawal.⁵⁴

The Swiss court at the same time affirmed that an arbitrator is entitled to resign only for a "serious reason" ("motif grave").⁵⁵ While an arbitrator obviously cannot be forced to perform, the existence of a recognized obligation on the arbitrator's part to do so may, thus, provide the parties with an avenue of relief in the event of that duty's breach.⁵⁶

As the ICC Rules do not themselves expressly set out the circumstances in which an arbitrator may legitimately resign, this is a matter as to which the Court is required to exercise its discretion under Article 2.10. Fortunately, it is not called upon to do so very often, and it is extremely rare that an arbitrator seeks to resign simply to sabotage the arbitral process, a concern that motivated, in part, the introduction into the Rules in 1988 of the provision presently contained in Article 2.10.⁵⁷

Most often, an arbitrator's resignation in an ICC case will be the result of illness. Occasionally, however, it will be motivated by a change in professional activity that makes continued performance as an arbitrator impossible, e.g., appointment to a judgeship or governmental position. There have also been instances in which arbitrators have submitted resignations after joining a new law firm or company and, as a result, have been prevented from continuing to act. The Court has ordinarily accepted such resignations. This suggests that, in the Court's view, acceptance of an arbitration should not necessarily prevent an arbitrator subsequently, during the course of an arbitration, from making a professional change conflicting with the continued performance of his or her mission. Arguably, however, it would be inappropriate for an arbitrator to accept an appointment if the professional change in question could reasonably have been anticipated at the time of acceptance. Moreover, the resigning arbitrator may not have a reasonable claim for remuneration in such circumstances.

The Court has also accepted the resignation of arbitrators where, following their appointment, the parties agreed to suspend the arbitration for a prolonged period of time. Indeed, arbitrators should not reasonably be expected to continue to remain "on hold" indefinitely while an arbitration is in abeyance or otherwise continue to serve where circumstances outside of their own control arise, subsequent to their appointment, that could not reasonably have been expected prior to that time.⁵⁸

There have also been rare situations in which ICC arbitrators have resigned due to threatening or abusive conduct of one of the parties (or its counsel), and the Court has accepted such resignations. Although the Court would not usually consider that it is appropriate for an arbitrator to resign simply because a party requests the arbitrator to do so - a party does not have the right under the ICC Rules unilaterally to revoke an arbitrator (including an arbitrator whom it may originally have designated) - when extreme conduct of a party makes it unreasonably difficult or unpleasant for an arbitrator to continue to serve, the Court may be willing to accept a tender of resignation. Thus, [Page83:] for example, the Court accepted the resignation of a party-appointed arbitrator in circumstances where he appeared to fear for his physical safety in the event that he continued to serve.

In another exceptional case, the Court accepted the resignation of an entire arbitral tribunal following repeated harassment by the claimant's counsel of the members of the arbitral tribunal and, in particular, the arbitrator appointed by the claimant itself, including requests for that arbitrator's resignation and replacement, verbal abuse, and other conduct that, in the opinion of the tribunal, made it impossible for it to continue to conduct the arbitration "in the conditions of serenity necessary for the discussion" of the issues in the arbitration. It is to be emphasized, however, that the circumstances of that case were extreme, both the arbitrators and the Court considered the conduct of the claimant's counsel to be unjustified - indeed repugnant - and the ability of the arbitrators to continue to conduct the proceedings in a proper manner had been severely compromised.⁵⁹

An issue that arises more frequently is whether an arbitrator should resign when challenged by a party. Although the Court has accepted the resignations of arbitrators in such circumstances, prior to the challenge being examined by the Court, there is nevertheless a question as to whether arbitrators have a duty to the parties not to resign if they consider the challenge to be unfounded and made solely for dilatory purposes. It would certainly be legitimate for an arbitrator to take the position that, in the event of a challenge, where one of the parties opposes it and the arbitrator does not consider the challenge to be meritorious, it is for the Court to decide the matter in accordance with Article 2.9 of the ICC Rules and that, in the circumstances, it would be inappropriate for an arbitrator to prejudge the matter by resigning.⁶⁰

Sometimes, however, an arbitrator may consider that, whatever the actual merits of the challenge, it would be in the best interests of the arbitration and of both parties ultimately for the arbitrator to be replaced, in order to permit the arbitration to proceed in a better climate of confidence and trust and to minimize the likelihood of recourse against the arbitral award when it is rendered. The decision of whether to stay or to go in such circumstances inevitably involves the consideration of a number of different factors that may be particular to the case in question. The Court has therefore generally respected the decisions made by arbitrators in such cases. Moreover, there appears to be a relatively broad international consensus (as reflected, for example, in Articles 13-14 of the UNCITRAL Model Law) that an arbitrator may legitimately choose to withdraw if challenged, even if the challenge is not considered to be founded, and withdrawal in such case need not constitute an admission of the validity of the challenge.⁶¹

Of course, if all of the parties to an arbitration wish an arbitrator to withdraw, then he should do so. Given the consensual nature of the arbitral process itself, this principle is universally recognized.⁶²

D. Loyalty to the arbitral process

Apart from the arbitrator's duties to act with diligence and to complete the arbitral mission, arbitrators are normally also expected to act in a manner that will preserve both the integrity and the efficacy of the arbitral process. This is not generally stated explicitly in arbitral legislation or in arbitral rules. However, this is [Page84:] surely in the spirit of such rules, and the principle is widely accepted. Thus, for example, the IBA Rules (see note 4 above) state that:

Arbitrators shall proceed diligently and efficiently to provide the parties with a just and effective resolution of their disputes ... (emphasis added).⁶³

It naturally follows that arbitrators should not conduct themselves in a manner that may undermine or otherwise jeopardize the effectiveness of the proceedings and the ultimate enforceability of the arbitral award eventually rendered. This is, moreover, consistent with the general principle set forth in Article 26 of the ICC Rules, which provides that:

the arbitrator shall make every effort to make sure that the award is enforceable at law.

Even if an arbitrator disagrees with the decisions of his or her co-arbitrators and ultimately with the award rendered, it is therefore not proper for the arbitrator to attempt to sabotage the decisions of the majority (or, in the case of ICC arbitration, in the event that there be no majority, of the chairman).⁶⁴

It is, in fact, extremely rare, in the ICC's experience, for an arbitrator to seek to discredit decisions taken by his or her co-arbitrators. In cases where arbitrators are in the minority, they will usually either refuse to agree to the award, as they are entitled to do, or possibly prepare a dissenting opinion (see with respect to the latter the discussion at note 98 below). But they will not usually attempt to subvert the award itself (or any other decision of the tribunal).

In one recent ICC case, however, the ICC Court decided to replace an arbitrator who, among other things, had written directly to the parties to criticize the manner in which certain procedural decisions had been made by the other two arbitrators, and, in particular, the conduct of the chairman of the arbitral tribunal. The arbitrator's open criticism of his fellow arbitrators was apparently designed to discredit a procedural decision with which he disagreed, and it incited one of the parties immediately thereafter to challenge the chairman. (The chairman was, in fact, also replaced by the Court.)

Although it would not be appropriate to discuss in this paper all of the elements relevant to the Court's decision in that case, it nevertheless raises difficult and delicate issues regarding the attitude that arbitrators should adopt when they consider other arbitrators to be misconducting themselves or otherwise to be in breach of an obligation owed to the parties.

Under the ICC Rules, as under other arbitration rules, it is not possible for an arbitrator to challenge another arbitrator. Only parties may introduce challenges under Article 2.8. However, Article 2.11 of the Rules also permits the ICC Court to replace arbitrators "on the basis of information that has come to its attention" and, therefore, an arbitrator always has the possibility of bringing information to the attention of the Secretariat of the Court if he or she is concerned about the conduct of a fellow arbitrator.

Any concerns that an arbitrator may have about the conduct of another arbitrator should therefore normally be raised with the Secretariat of the Court, and not with the parties directly, as in the case mentioned above. It may also be appropriate, depending on the circumstances, [Page85:] for the arbitrators to try to deal with the problem among themselves.⁶⁵ Surely, however, there is nothing more potentially detrimental to the arbitral process itself than a conflict within the arbitral tribunal that is played out before the parties. One of the advantages of institutional arbitration, moreover, is that the institution's intervention and advice can be sought in order to try to smooth over or resolve any such conflicts.

Fortunately, such situations are rare. Indeed, as a general rule, arbitrators appear extremely reluctant to enter into conflict with their fellow arbitrators. It is undoubtedly far more common for them to turn a blind eye to questionable conduct of their colleagues than to raise the matter with the ICC. Depending on the circumstances, moreover, this may ultimately be in the best interests of the process itself.⁶⁶

Apart from conduct intended to undermine the authority of other arbitrators, behavior that seeks to discredit the arbitral institution may also be regarded as incompatible with the exercise of the arbitral function. I can do no better than to quote Frédéric Eisemann in this regard:

Peut-on concevoir, dans ce cadre, manquement moral plus grave que toute tentative de nature à saper la confiance placée par les parties dans l'institution intéressée? Nous pensons ici, en particulier, à cette aberration, rare certes, du ou des arbitres qui consiste à dénoncer l'organisme dont ils tiennent leur investiture, comme inadéquat, et à proposer aux parties de renoncer à leur clause d'arbitrage, mentionnant ladite institution pour confier le litige à un arbitrage « ad hoc » dont eux-mêmes seraient les acteurs - et les « bénéficiaires ». Pareille initiative - quel qu'en soit le résultat - est susceptible de porter un préjudice sérieux au mouvement arbitral. La confiance et la loyauté réciproques qui sont la base même de tout arbitrage peuvent non moins être compromises par des dénigrements systématiques de la part de tiers qui néanmoins continueraient d'accepter avec empressement les fonctions tant d'arbitre unique que de président de tribunal arbitral au sein de l'organisation critiquée. Déontologiquement, il nous paraît un devoir impérieux de choisir une fois pour toutes entre deux attitudes de toute évidence inconciliables; dans le cas contraire, on compromettrait, à coup sûr, la confiance des parties non seulement dans la valeur du centre mais également et surtout dans la droiture des arbitres.⁶⁷

[Tr.: Can one conceive, in this context, of a more serious ethical breach than any attempt to undermine the confidence placed by the .parties in the institution concerned? We think here, in particular, of that aberration, surely rare, of arbitrators that consists in denouncing as inadequate the organization that has appointed them and proposing to the parties that they renounce their arbitration clause, mentioning such institution, in order to refer the dispute to an "ad hoc" arbitration in which they would themselves be the actors and of which they would be the beneficiaries. Such an initiative - whatever the result - may cause serious harm to the arbitral movement. The trust and the mutual loyalty that are the very basis of all arbitration can no less be compromised by systematic denigration on the part of third parties who would nevertheless continue to rush [Page86:] to accept the functions of sole arbitrator or chairman of the arbitral tribunal within the organization so criticized. Deontologically, there appears to us to be an absolute obligation to choose once and for all between two attitudes that are evidently irreconcilable; the confidence of the parties not only in the value of the center but also and, in particular, in the integrity of the arbitrators would otherwise certainly be compromised.]

E. Non-delegation of duties

Although not expressly stated in many arbitration laws and rules, there is nevertheless a broad international consensus that the arbitrator's mandate is a personal one and is not to be delegated to another person.⁶⁸

In ICC arbitration, the issue of delegation has arisen in a number of different contexts. The first concerns the practice prevalent in certain countries (including, for example, Switzerland) of permitting the appointment by the arbitrators of a "secretary".⁶⁹ The duties of such a secretary will normally be of a purely administrative nature, e.g., keeping minutes of hearings, dealing with routine correspondence and logistical matters, and possibly also carrying out legal research.⁷⁰ Several years ago, the ICC for the first time formally acknowledged the practice and sought to regulate it by requiring that arbitrators comply with a "Note Concerning the Appointment of Administrative Secretaries to Arbitral Tribunal".⁷¹ Among other things, the Note expressly requires the arbitrators to consult with the parties before appointing any such person and further indicates that the administrative secretary's duties must be limited to administrative tasks. It is stated, in particular, that:

He must not influence in any manner whatsoever the decisions of the arbitral tribunal.

The Note also deals with the question of the secretary's remuneration.⁷²

It is, in practice, very difficult for the ICC Court to verify or otherwise ensure that the limitations laid down in its Note are strictly observed. In at least one case, the Court required a tribunal to replace a secretary when the person originally appointed was a well-known arbitrator and arbitration authority in his own right. However, there may also be occasional instances where arbitrators will use a secretary to perform tasks beyond those provided for in the Note.

Of course, this may also occur even when no secretary has officially been appointed. Indeed, ICC arbitrators practicing in law firms may, without informing the ICC, use other lawyers in their firms to assist them with their work. In one particularly flagrant case, moreover, an arbitrator, who was a partner in a law firm, requested one of his partners to represent him at a procedural hearing that he was prevented from attending at the last minute. Both of the parties agreed to this, and the Court was informed only after the fact.

Although the arbitrators in the foregoing case were not sanctioned, nor has any ICC arbitrator been replaced during my tenure for delegating any functions to a third person, the ICC Court is nevertheless normally concerned to ensure [Page87:] that arbitrators understand that they are expected to carry out the arbitral function personally.⁷³

Similarly, although arbitrators may properly delegate certain functions to each other within the arbitral tribunal when there is more than one arbitrator, there surely must be limits to such conduct. Parties designating an arbitrator will normally have the legitimate expectation that the arbitrator nominated by them will participate fully in the arbitral proceedings and will, in particular, be fully implicated in the decision-making process of the tribunal. The chairman of the tribunal may, in addition, have certain special duties, either expressly under the ICC Rules (see, e.g., Article 19) or otherwise that are inherent in such function.⁷⁴

The issue of delegation may also arise when a tribunal decides to appoint an expert. There may, indeed, be a concern in such cases that the arbitral tribunal is effectively entrusting the expert with responsibility for deciding certain issues in the arbitration that the tribunal does not feel competent to decide without the expert's assistance. In this connection, the expert clearly has no power of decision. Moreover, it appears to be generally admitted that any such person is not to take part in the arbitrators' deliberations or otherwise participate in the preparation of the arbitrators' award. Rather, the expert's report is taken into consideration in the same manner as all other submissions and evidence in the arbitration proceeding.⁷⁵

F. Fair and impartial conduct of the proceedings

That an arbitrator has certain duties concerning the conduct of the arbitration proceedings goes without saying. Such duties arise, either expressly or impliedly, out of the laws and rules governing the arbitral proceedings as well as multilateral and bilateral conventions concerning the recognition and enforcement of arbitral awards (e.g., the 1958 New York Convention).

There is little disagreement as to the general principles that ought to govern an arbitrator's conduct. Laws, rules and codes of ethics all generally provide that arbitrators must treat the parties with equality and impartiality, that they must ensure that each party has an adequate opportunity to present its case, that the parties have a right to a hearing, if requested, and that they are entitled to an award in respect of the matters referred to the arbitrators.⁷⁶ In addition, it appears to be generally admitted that arbitrators should avoid ex parte communications with parties regarding the arbitration,⁷⁷ should consult with the parties in respect of matters of procedure and, more generally, avoid "creating surprises".⁷⁸

More principles of a similar, general character can, of course, be articulated, especially in the context of any particular national law or set of arbitration rules. But most of these principles are so general as to have little meaning in the abstract. When difficulties or questions arise in actual practice, this will normally be with respect to issues that are much more specific, e.g.: (i) is a particular deadline fair? (ii) is a hearing required with respect to a procedural question? (iii) is it appropriate for the arbitrators to appoint an expert? (iv) how should an expertise procedure be conducted?

As a practical matter, the ICC has received very few challenges of arbitrators for alleged misconduct of the arbitration proceedings as distinguished from challenges for lack of independence or impartiality - and, over the last five years, there has not been a single successful challenge of an ICC arbitrator on this [Page88:] basis.⁷⁹ Nor, during that period, has the ICC Court, on its own initiative, replaced an arbitrator for misconduct under Article 2.11 of the ICC Rules, except for lack of diligence, as already discussed above.⁸⁰ ICC arbitrators have, however, been challenged, inter alia, where:

(i) a party's request for an extension of time to reply to a brief of the other party was refused;

(ii) the arbitrator refused to appoint an expert;

(iii) the arbitrators agreed to proceed with the arbitration, the place of which was London, only if the claimant party withdrew proceedings brought by it, in the courts of Pakistan, against a partial award of the tribunal, or brought the subject matter of those proceedings before the English courts, which the arbitrators considered to be "the courts applying the curial law and exercising the supervisory power over this arbitration";

(iv) various deadlines fixed by the arbitrator for the submission of briefs allegedly deprived a defendant party of a fair opportunity to present its case; and

(v) the arbitrator refused to allow representatives of either of the parties to attend a site inspection undertaken by an expert appointed by the arbitrator.

In each of the above instances, the challenges submitted were rejected, primarily because: (i) they concerned matters that were subject to the tribunal's discretion; (ii) the Court was not in a position to determine, on the documents before it, that the arbitrator, in any case, had acted improperly; or (iii) no ICC Rules had otherwise been transgressed. The Court, quite properly, was reluctant to second-guess the decisions of arbitrators made on the basis of their more intimate knowledge of all of the circumstances of the particular case.

Such cases illustrate the difficulty of defining with any degree of specificity what is proper conduct, even when there is agreement on a particular general principle. Such difficulties will, of course, be compounded when there are, in addition, uncertainties concerning the general principle to be respected. Three examples of matters that appear to give rise to recurring uncertainties in this regard are now discussed.

1) The limits of party autonomy

Arbitrators are generally said to have a duty to conduct the arbitration procedure in accordance with the agreement of the parties. This principle is set forth in Article 11 of the ICC Rules, which provides:

The rules governing the proceedings before the arbitrator shall be those resulting from these Rules and, where these Rules are silent, any Rules which the parties (or, failing them, the arbitrator) may settle ... (Emphasis added.)

The conventional interpretation of this provision is that, subject only to the Rules themselves and possible mandatory provisions of law, the arbitrators must give effect to any agreement of the parties in respect of procedure. But does this mean, for example, that the parties can require the arbitrators to sit in a hearing for a longer period of time than they are able or prepared to do (or otherwise consider necessary)? Does this mean that the parties can impose a timetable for the proceedings on the arbitrators that they consider to be inappropriate or that the parties can require the arbitral tribunal to alter procedural rules that may be laid down in the Terms of Reference earlier signed by all of the arbitrators and the parties?

Many arbitrators appear to feel uncomfortable with the authority enjoyed by the parties under Article 11. The arbitrators may not feel that the parties' agreed procedures are suitable or that [Page89:] they are in a position (or possibly even competent) to administer them. The arbitrators may also not be able to accommodate the parties' requirements with other professional commitments. Possibly for these reasons, when Terms of Reference are written in ICC arbitrations, it will often be stated simply that it will be for the arbitrators to determine rules of procedure, at their discretion, as the arbitration progresses (without any reference to any power of the parties to agree otherwise).

As a practical matter, it is unusual for the parties to reach any agreements on procedure that an arbitral tribunal will not accept. But occasionally, this does occur.⁸¹ What is the arbitrator's duty in such circumstances?

It has been argued by some authorities that the arbitral tribunal, by virtue of its jurisdictional function, possesses inherent powers concerning the organization of the arbitral proceedings that may not be ousted by an agreement of the parties.⁸² It is unclear how such a view can be reconciled, in the context of ICC arbitration, with the unequivocal terms of Article 11, although it is to be noted that the freedom accorded the parties under that provision applies only in the silence of the Rules, and there may be room for disagreement as to whether the Rules are actually "silent" as to a particular matter.⁸³

Apart from considerations of this kind, it seems evident, as already suggested above (see Section II.C), that acceptance of the arbitral mission should not give rise to an obligation to conduct the proceedings in a manner that could not reasonably have been anticipated at the time of such acceptance and that is unacceptable to the arbitrator. Whatever the parties may be able to require on the basis of Article 11, therefore, the arbitrator may be entitled to resign if unhappy with the parties' procedural agreements, and they insist upon them.⁸⁴ Two eminent authorities have, thus, stated the position as follows:

If the parties have agreed upon a procedure before or at the time when the arbitrator is appointed, he is bound to follow it … Failure to comply with the agreement of the parties is misconduct, which may invalidate the award.

…

An agreement on procedure made by the parties after the arbitrator has agreed to act is on a rather different footing. Here, it cannot be said that compliance with the agreement is a condition of his appointment, and if the parties were to insist on a procedure which he found objectionable, he would be within his rights in declining to act. As a matter of prudence, as well as courtesy, the parties should seek the arbitrator's approval of the agreed procedure. The arbitrator may, and indeed should, make his views known if the parties propose a way of conducting the reference which he considers may lead to confusion, delay or expense.

Nevertheless, if the parties decline to take his advice, he should yield. He is, after all, no more than the agreed instrument of the parties. If there is a conflict between the parties, an arbitrator who tries to please them both is likely to fall into error. But if they are in agreement, he should in the end do what they wish, for it is their money, and not his, which is being spent on the reference.⁸⁵

Although Article 11 of the ICC Rules does not differentiate between the time prior to or after the acceptance of the arbitrator's mission (or [Page90:] the establishment of the Terms of Reference), an ICC arbitrator's agreement to serve necessarily implies an acceptance of all of the ICC Rules, including Article 11. Thus, arbitrators should make every effort to work out procedures in consultation with the parties and to endeavor to give effect to their wishes, to the extent at all reasonable, or otherwise to persuade them that there is a better course. This is, in fact, what occurs, in the vast majority of the ICC's cases.

2) Conciliating the parties

Whether and to what extent it is appropriate for an arbitrator to suggest, initiate or otherwise become involved in settlement negotiations between the parties is the subject of divided opinion. In certain countries, it appears to be a normal expectation of parties and arbitrators alike that the arbitrators should play an active role in assisting the parties to settle their dispute at the outset of the arbitration and possibly even thereafter.⁸⁶ In other countries, however, particularly in common law jurisdictions, an arbitrator would not normally be expected to become involved in helping the parties to settle their dispute, unless requested by them to do so.

Thus, although the ABA/AAA Code accepts that an arbitrator may "suggest to the parties that they discuss the possibility of settlement of the case", it at the same time cautions that:

an arbitrator should not be present or otherwise participate in the settlement discussions unless requested to do so by all parties. An arbitrator should not exert pressure on any party to settle.⁸⁷

This rule is a prudent one as it may be hazardous for arbitrators to implicate themselves in settlement discussions between the parties.⁸⁸ Even if it may not be considered improper for arbitrators, as the above rule permits, to participate in settlement discussions at the request of the parties, they subsequently may not be in a position to continue serving as arbitrators if the settlement discussions fail and the arbitrators have expressed opinions or made proposals that might be asserted by a party to evidence bias.⁸⁹

This being said, it is not uncommon for arbitrators in ICC arbitrations to assist the parties in settling their disputes. Nearly half of the ICC cases transmitted to ICC arbitral tribunals are generally settled amicably or otherwise withdrawn, often with the assistance of the arbitral tribunal.

That there have been no challenges of ICC arbitrators in recent years arising out of or relating to any related conduct of arbitrators suggests that parties are happy to have the arbitrators' assistance in this regard or that arbitrators are otherwise careful not to exert pressure or implicate themselves unduly without the parties' consent.

3) Assisting the parties

Although, as already indicated, it is universally accepted that arbitrators are to treat the parties equally and impartially, arbitrators at the same time play an active role in shaping the arbitration procedure and conducting the proceedings. In doing so, arbitrators will almost [Page91:] always have to consider whether they may appear to be helping one of the parties and, more generally, the limits on their powers.

In this regard, a distinction is commonly made between the "adversarial" system of procedure followed in common law jurisdictions and the "inquisitorial" system applied in civil law countries. In the latter, the judge normally assumes a greater role in directing the proceedings, and there is, thus, a common perception among common law lawyers that the adversarial procedure better "preserves the impartiality of the judge in the eyes of the parties".⁹⁰ Civil law lawyers, meanwhile, commonly perceive the common law judge as little more than an umpire presiding over a match between the parties, who take most of the initiatives, and consider that the ultimate goal of arriving at a just result is less well served.

Whatever distinctions may exist between the two systems - and these are perhaps not so great as is often assumed⁹¹ - international arbitrators will normally be expected to implicate themselves much more in the direction of the arbitration proceedings than might be the case of a judge in a common law court.⁹²

Indeed, arbitrators from either legal tradition will normally be required to give directions to the parties in respect of the procedures to be followed and will consider themselves to have broad powers in achieving both the efficient and "just" resolution of the arbitration.⁹³ That the arbitrators enjoy broad powers in structuring and conducting the proceedings - indeed, far greater powers than a judge would normally have in any jurisdiction - flows, of course, from the nature of the arbitral process itself and, more particularly, from Article 11 of the ICC Rules, in the specific context of ICC arbitration, as well as Article 14, which provides that the arbitrator shall "establish the facts of the case by all appropriate means". Whatever choices arbitrators may make in this regard and however they may see their role - whether as an activist case manager or more passive referee - they cannot avoid having to make procedural choices (unless the parties have themselves agreed on detailed procedures), and it will rarely, if ever, be the case that the effects of any such choices are themselves totally neutral.

The wish to do justice, moreover, is often likely to produce a tension with the duty that arbitrators have to treat the parties impartially and even-handedly - a tension that may be even more pronounced in international arbitration proceedings than in a domestic setting simply because of the much greater diversity of the parties and the widely varying expectations and skills of the counsel that may appear in a single proceeding.

As Marc Blessing, President of the Swiss Arbitration Association, has written:

More often than not arbitrators are confronted with the situation that the party X is represented by a very able counsel whereas party Y is not. As a consequence it may happen that party Y does not plead what it should, fails to address or invoke important arguments it could make in support of its case, or fails to furnish proper substantiation or proper documents, or simply remains silent in respect of allegations made by party X.

In all such situations arbitrators may find themselves to be in a difficult dilemma: [Page92:]

should they ask questions for clarification, thus fulfilling their duty to investigate the case "by all appropriate means", even with the risk to raise "a flag" to party Y to invoke possible defenses or arguments which otherwise would not have been addressed? For instance, to give a simple example, if the claimant party X has demanded interest at a rate of 12% (which is sometimes done without further justification): Should the arbitrators, noticing that party Y failed to specifically comment on such interest rate, ask whether such rate is admitted? Almost certainly such a question will then cause party Y to deny the appropriateness of the interest rate and may thus be caused to deny a rate exceeding a much lower statutory interest rate.

Other even "more serious" situations may be those where party Y had failed to see that it could invoke a statute of limitation or invoke forfeiture of a particular claim due to a failure of appropriate notification etc. Again here: Is it appropriate for the arbitrators to themselves raise the issue and thus cause party Y to address it?

I would not volunteer to give a general or specific answer to such or similar questions which arise in almost every arbitration. Each individual situation has to be considered very carefully and the arbitrators will have to strike a very carefully considered balance between their duties to, on the one side, investigate the case by all appropriate means and, on the other hand, treat the parties with equality (which under the circumstances may make it questionable whether indications should be given to a party to improve its presentation).⁹⁴

The issues raised above are common and difficult enough in international arbitration practice for the ICC Institute of International Business Law and Practice to have organized a recent colloquium of arbitrators to discuss them.⁹⁵ However, those in attendance were no more able than Dr Blessing to formulate any guidelines to be followed by arbitrators in this regard and upon which they could all agree. Individual arbitrators clearly take more or less activist views of their own roles in the arbitral procedure, without it necessarily being possible to say that there has been any breach, as a consequence, of the duty that all agree that they have to treat the parties impartially and equally.

G. Confidentiality

Among the duties of arbitrators as to which there also appears to be widespread international agreement is a duty of confidentiality, although this is not expressly set forth in either the ICC Rules or most arbitral legislation. Moreover, insofar as such a duty has been articulated, its precise scope and implications remain subject to some uncertainty.

The ABA/AAA Code (see note 4 above), thus, contains a broad stipulation that (Canon VI.B):

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.

The IBA Rules, however (see note 4 above), contain a somewhat narrower provision that expressly mentions only the "deliberations of the arbitral tribunal, and the contents of the award itself" (Article 9) (see also to the same effect the Chartered Institute Guidelines referred to at note 4 above, Article 7). What little case law that there has been on the confidentiality of arbitration proceedings has, moreover, revealed that there may be divergent approaches to this issue.⁹⁶

As a practical matter, the Secretariat of the ICC Court informs all arbitrators prior to their appointment or confirmation that they are expected to respect the "confidential nature" of the proceedings. Even though this is not expressly set forth in the ICC Rules, that [Page93:] arbitrators have a general obligation to do so, subject to the agreement of the parties and possible legal requirements, has been the long-standing position of the ICC Court.⁹⁷ It is, in addition, the Court's expectation that ICC arbitrators will preserve the confidentiality not only of the arbitral tribunal's deliberations,⁹⁸ but of communications between the arbitral tribunal and of the ICC Court as well that are not intended for the parties. Thus, for example, decisions made by the ICC Court that are notified only to the arbitrators and not to the parties (e.g., in respect of the Court's scrutiny of the arbitrator's draft award under Article 21 of the ICC Rules) are considered by the Court to be confidential and are not to be divulged by the arbitrators to the parties.⁹⁹

Few problems have, in fact, arisen with ICC arbitrators in this regard, to the Court's knowledge, and no ICC arbitrator has been replaced by the ICC Court in recent years as a result of a breach of confidentiality during the arbitration proceedings.¹⁰⁰ There have undoubtedly been instances in which arbitrators have leaked to a party the substance of discussions within the arbitral tribunal or revealed to third parties information about arbitration proceedings in which they have been involved.¹⁰¹ But it is probably unrealistic to expect that all such breaches can be prevented. Happily, the vast majority of arbitrators, to the ICC's knowledge, appear to take their obligations of confidentiality seriously.

One issue, relating to confidentiality, that arises with regularity is whether and to what extent arbitrators may reveal information about arbitration proceedings in which they are or have been involved in the Statement of Independence form that they are required to execute prior to appointment as an ICC arbitrator. Surely, if a person is or has been involved, either as counsel or arbitrator, in another arbitration proceeding involving one of the parties, or that is otherwise related to the arbitration for which he or she is being nominated as arbitrator, then this should normally be disclosed prior to appointment. If, however, disclosure is not possible, due to considerations of confidentiality, then the arbitrator should decline to serve. Generally, arbitrators are able to make disclosure in a way that does not conflict with any obligations of confidentiality that they may owe to the parties in the other arbitration. They should, in any event, be attentive to such obligations when completing the Statement of Independence form.

[Page94:]

It is, of course, universally agreed that the arbitrator's obligations of confidentiality continue in perpetuity after the arbitration has been completed.¹⁰² In this regard, the former chairman of an ICC tribunal was recently faced with a request by one of the parties to the arbitration proceeding, which had taken place in Switzerland several years earlier, for the release of recordings of statements made by a witness during a hearing in the arbitration. The other party objected to such release on the grounds that: (i) the arbitrator was functus officio and had no continuing authority to release any documents to either of the parties; and (ii) the recordings were allegedly intended to be disseminated to the public by the party requesting them. The arbitrator concluded, however, that he had the authority to, and should, release the recordings in question, subject to the following considerations:

1. In principle, once a final award is rendered, the arbitrators are discharged of their office (cf. Craig/Park/Paulsson, International Chamber of Commerce Arbitration, part III § 22.05).

2. However, this principle is only pertinent to the jurisdictional powers and duties of the Arbitral Tribunal. Apart from the jurisdictional powers and duties, there exist ancillary obligations some of which are of a continued existence (cf. Hans-Heinrich Inderkum, Der Schiedsrichtervertrag, 1989, pp. 203-206 on "nachvertragliche Pflichten") such as the obligation to safeguard the confidentiality of the proceedings towards third parties and - more relevant in the instant case - the obligation to store the material of the proceedings (submissions, minutes, records, award) for a reasonable period in accordance with any legitimate interest of the parties, e.g., relating w the enforcement of an award (cf. A. Bucher/P.-Y. Tschanz, International Arbitration in Switzerland, 1989, sect. 268 for further examples of "residual powers" retained by the arbitral tribunal). The ancillary duty to store the file lies, when an Arbitral Tribunal of three (or more) members has been constituted, with the chairman of the former tribunal (cf. Inderkum, op. cit. pp. 202 and 204).

3. Subject to exceptional circumstances, each party may request to obtain copies of the material stored with the chairman of the former tribunal also after the termination of the arbitration and the chairman has to comply with such request. Should a party allege the existence of exceptional circumstances which preclude in its opinion the release of material (copies) to the requesting party, the chairman's authority resulting from his ancillary duty to store the material does not permit him to decide the dispute. In such a situation, new arbitration (or state court) proceedings, in which the requesting party's right to obtain the material may be clarified, have to be initiated. Since the normal situation is the one in which each party may obtain copies of the stored materials, the opposing party - the one alleging the existence of exceptional factual elements - shall have the burden to initiate such proceedings, normally by the application of the arbitration agreement which formed the contractual basis of the former arbitration proceedings. The opposing party may also request that the competent authority should issue provisional or protective measures.

Subsequently, proceedings were brought by the party opposing the release of the recordings before the Basel-Stadt Civil Court. As reported to the ICC by the former chairman of the arbitral tribunal, the President of the court expressed the view that the dispute relating to the release of the recordings did not concern the original contractual relationship between the parties to the arbitration (and therefore did not arise under the arbitration clause contained in their contract), but rather a separate contractual relationship between the requesting party and the former chairman of the arbitral tribunal. In the view of the Swiss judge, the chairman had an autonomous power to decide on the former party's request to release the recordings. The judge added that requests for the release of material from a former arbitration should normally be granted unless the risk that the requesting party will use the material in an illicit way or in a way contrary to bonos mores has been established by the other party, which it was not. The judge was also of the view that jurisdiction over the dispute relating to the release by the arbitrator of any such material [Page95:] lay with a court at the arbitrator's place of residence and was not to be referred to arbitration in accordance with the arbitration agreement of the parties.

Apart from affirming the arbitrator's residual powers and duties, following the completion of the arbitration proceedings, with respect to both confidentiality and other matters, this is the only recent instance of which the ICC is aware in which issues of this kind have been brought before the courts in connection with a former ICC arbitration. Whether or not the court concerned properly asserted jurisdiction over the matter is, however, an issue as to which there might well be considerable discussion.¹⁰³

H. Post-award duties

As the case just discussed illustrates, certain of an arbitrator's duties will continue after completion of the arbitral mission.¹⁰⁴These may include, in addition to the arbitrator's obligations in respect of confidentiality: (i) the obligation to conserve certain documents (as noted above); (ii) the duty, as explicitly set forth in Article 25 of the ICC Rules, to assist the parties in complying with whatever further formalities may be required in respect of the deposit of the award; (iii) the duty not to interfere with or otherwise prevent the enforcement of the award (see Section I.D above); and (iv) a possible duty to correct, interpret or possibly supplement the award.¹⁰⁵

An obvious difficulty with some of these post-award duties is that, as an arbitral tribunal is not a permanent institution and is composed of mere mortals, it may not be possible to reconstitute the arbitral tribunal or to call upon individual arbitrators, who may no longer even be alive, to perform post-award functions as to which they may have a continuing duty. Moreover, as the arbitration will already have been completed and the arbitrators presumably already paid, the usual sanctions for non-performance, i.e., replacement and/or loss of entitlement to remuneration, can no longer be applied.

As a practical matter, the ICC rarely encounters problems relating to post-award duties of arbitrators. Moreover, arbitrators will generally perform any post-award functions that they are required to perform without insisting upon further compensation. This is, arguably, as it should be insofar as the duties in question derive from, or are inherent in the performance of, the arbitral mission that they accepted and the possible need to perform them might reasonably have been anticipated.

II. Rights

Apart from the powers that the arbitrator may enjoy in connection with the organization and conduct of the arbitral proceedings, the arbitrator's principal right, as already stated, will usually be to remuneration.¹⁰⁶ The arbitrator may have other, intangible rights - e.g., a right to be treated by the parties with courtesy and respect and to have their cooperation¹⁰⁷ - but, as a practical matter, the arbitrator's only recourse in the event of the breach of such a right will usually be to resign.¹⁰⁸ There may also exist certain other rights that necessarily accompany, in order to permit the fulfillment of, the various duties of the arbitrator considered above.

[Page96:]

The arbitrator's right to remuneration, in the context of ICC arbitration, has, as already indicated, been dealt with by me at some length elsewhere, and little purpose would be served by repeating here what I have already said on that subject.¹⁰⁹ There are, however, two observations that may usefully be made in the context of this particular paper.

The first is that the arbitrator's right to remuneration is by no means absolute. In the event, for example, that an arbitrator resigns or otherwise has to be replaced during the course of the arbitration, any right to remuneration for the work already done might reasonably be considered to have been forfeited either wholly or in part, particularly if such work has to be redone by a new arbitrator.¹¹⁰ In ICC arbitration, the ICC Court, which fixes the arbitrator's fees, enjoys considerable discretion in this regard.¹¹¹

Second, the right to remuneration is generally considered to be accompanied by certain duties, e.g.: (i) to avoid making unilateral arrangements with a party in respect of the same;¹¹² and (ii) to endeavor to ensure that the costs to the parties remain within reasonable limits in relation to the amount at issue in the arbitration.¹¹³ Both of these principles are inherent in the ICC's rules and practices relating to the fixing of the arbitrator's fees and the reimbursement of the arbitrator's expenses.¹¹⁴

Conclusion

From the above discussion, it can be seen that there are a number of general principles concerning the rights and duties of arbitrators that appear to enjoy wide acceptance internationally. While there may at the same time be differences and uncertainties with respect to certain matters, and even the general principles as to which there is agreement may give rise to difficulties of application, there nevertheless appears to be certain common ground.

Many of the matters as to which there is broad agreement in principle, however (e.g., the arbitrator's obligations of confidentiality), are not necessarily the subject of explicit institutional rules or legislation. As a result, arbitrators have generally been left to find their own way in assessing many of their duties and rights (possibly, however, with the support and guidance of an arbitral institution), and even arbitral institutions may sometimes have little more to guide them than their own judgment.

This will undoubtedly always be unavoidable to some extent - the variety of situations is such that they cannot all be foreseen in any set of rules or code of conduct. It might, moreover, be argued that this is not necessarily such a bad thing, and that the relatively small number of challenges or other incidents encountered by the ICC in respect of the arbitrator's duties demonstrates that the process is functioning satisfactorily without the need for further codification of such matters. However, it is also possible that there are not more challenges, or complaints to the institution, in part because of the uncertainties that both parties and arbitrators may feel as to what is permissible or impermissible conduct.

[Page97:]

As participation in the international arbitration process becomes increasingly diverse, it may no longer suffice to rely on largely unwritten codes of conduct (those that have been written, such as the IBA Rules, not having received any official endorsement by arbitral institutions such as the ICC). Arbitral institutions, moreover, have a unique role to play, not only in helping to provide guidance to arbitrators and parties with respect to the matters discussed in this paper, but also in exercising leadership in the creation and harmonization of international norms of arbitrator conduct.

Although it is frequently argued that the further elaboration of such rules, or even guidelines, would simply give rise to difficulties, this is entirely dependent on what the arbitral institution's objectives are and how any such rules are written. If an arbitral institution believes that there are certain standards of conduct with which arbitrators acting under its auspices (and possibly also counsel and parties) should generally comply, then might not more good than potential harm be done by saying so?

Without providing an answer to this question, this paper hopefully will have helped to elucidate further the issues that arise in this connection, as seen by someone looking out from the arbitral institution.

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1
See Redfern and Hunter, Law and Practice of International Commercial Arbitration, 2nd ed. (Sweet & Maxwell 1991), pp. 264-267; Fouchard, Jurisclasseurs, Droit international privé français, Fasc. 5867-3, pp. 18-21. Compare, however, Mustill and Boyd, Commercial Arbitration, 2nd ed. (Butterworths 1989), pp. 219-223.

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2
For a proposal in this regard, see Smith, "Contractual Obligations Owed by and to Arbitrators: Model Terms of Appointment", Arbitration International, vol. 8, no. 1 (1992), p. 17.

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3
Standard form of Arbitrator's Declaration of Acceptance and Statement of Independence.

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4
See Yearbook Commercial Arbitration, vol. XII (ICCA 1987), pp. 199-202. These rules have given rise to a great deal of commentary. See, e.g., Coulson, "An American Critique of the IBA's Ethics for International Arbitrators", Journal of International Arbitration, vol. 4, no. 2 (June 1987), p. 103; Wetter, "Ethical Guidelines", Yearbook of the Arbitration Institute of the Stockholm Chamber of Commerce 1993, p. 99. See also "Guidelines of Good Practice for Arbitrators", as approved by the Council of the Chartered Institute of Arbitrators, Arbitration (May 1991), pp. 81-82, which follow closely the model of the IBA Rules, and the "Code of Ethics for Arbitrators in Commercial Disputes", prepared by the American Bar Association and the American Arbitration Association (the "ABA/AAA Code"), Yearbook Commercial Arbitration, vol. X (ICCA 1985), pp. 131-140. There is, in addition, a voluminous literature on the conduct of arbitrators. See, e.g., Lalive, "Conclusions" in The Arbitral Process and the Independence of Arbitrators (ICC Publishing 1991), pp. 124-125; Mustill, "Cedric Barclay Memorial Lecture", Arbitration, vol. 58, no. 3 (August 1992), pp. 159 et seq. at pp. 171-174; and Nariman, "Standards of Behaviour of Arbitrators", Arbitration International, vol. 4, no. 4 (1988), p. 311.

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5
One commentator has, thus, cautioned that "the opinion of the draftsmen [of ethical rules] may not be shared by the competent legislatures and courts". See Wetter, note 4 above, p. 102. Such rules, to be sure, do, however, provide a useful source of guidance concerning the usual expectations of participants in the international arbitration process.

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6
As noted in Craig, Park and Paulsson, International Chamber of Commerce Arbitration, 2nd ed. (ICC Publishing 1990), an attempt to draft such a code in the late 1970's was not endorsed by the Court (p. 239). More recently, a working group of the ICC Commission on International Arbitration has considered and rejected the idea of undertaking such a project. (Draft final report of the working group on the status of arbitrators, 1995 (unpublished).) Twenty-five years ago, however, the then Secretary General of the ICC Court, Frédéric Eisemann, appears to have been sympathetic to the possible elaboration of an ethical (or deontological) code for international arbitrators, it being, however, understood that any such code would be distinct from any legal obligations of the arbitrators. See Eisemann, "Déontologie de l'Arbitre Commercial International", Revue de l'arbitrage (1969), no. 4, p. 217. Many of the ideas in Eisemann's article appear, in fact, to have inspired the drafters of the IBA Rules.

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7
A handbook for ICC arbitrators - as opposed to a deontological code - is nevertheless under preparation in response to the widespread demand for additional guidance to arbitrators regarding the conduct of ICC proceedings.

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8
See The Arbitral Process and the Independence of Arbitrators (ICC Publishing 1991), which includes the papers presented at the sixth joint colloquium of the AAA, ICC, and ICSID in Paris on October 27, 1988. See also Hascher, "ICC Practice in Relation to the Appointment, Confirmation, Challenge and Replacement of Arbitrators", The ICC International Court of Arbitration Bulletin, vol. 6, no. 2 (November 1995), p. 4.

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9
See Schwartz, "The Costs of ICC Arbitration", The ICC International Court of Arbitration Bulletin, vol. 4, no. 1 (May 1993), p. 8.

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10
See note 4 above, Introductory Note, p. 199.

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11
In so providing, the drafters of the IBA Rules were faithful to the recommendation of Frédéric Eisemann that the first rule in a deontological code for international commercial arbitrators should be that persons not accept to act as arbitrators unless satisfied that they can satisfactorily do so. See Eisemann, note 6 above, p. 220. See also Hunter and Paulsson, "A Code of Ethics for Arbitrators in International Commercial Arbitration?" International Business Lawyer (April 1985), pp. 153 et seq. at p. 154. (Messrs Hunter and Paulsson were both part of the group that produced the IBA Rules.) Article 2 of the Chartered Institute's "Guidelines of Good Practice" (see note 4 above) follows Article 2.2 of the IBA Rules. There is no identical provision in the ABA/AAA Code, however (see note 4 above).

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12
See Mustill, note 4 above, p. 169.

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13
Thus, for example, nowhere is it expressly stated in the UNCITRAL Model Law on International Commercial Arbitration (the "UNCITRAL Model Law") that an arbitrator must be competent or that an arbitrator may be challenged or otherwise removed for incompetence, except to the extent that the arbitrator "does not possess qualifications agreed to by the parties". See UNCITRAL Model Law, Article 12(2). See also Article 11(5) thereof with respect to the subject of appointment. At an early stage in the elaboration of the Model Law, it was concluded that it would not be practical to endeavor to lay down any qualifications for arbitrators as it was recognized that the appropriate qualifications may be diverse. See Holtzmann and Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration (Kluwer 1989), pp. 363-366. The UNCITRAL Arbitration Rules, similarly, do not require that arbitrators be competent, nor may they be challenged thereunder for incompetence or otherwise replaced for the same, except possibly to the extent that this can be said to make it impossible for them to perform their functions. See UNCITRAL Rules, Articles 9-12.

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14
This is particularly so insofar as many of the qualities that make an arbitrator truly competent cannot be objectively described, but have to be subjectively appreciated. They include such skills as the ability to manage, to communicate well, to command respect, to deal courteously and tactfully with people. See, e.g., in this connection, Mustill, note 4 above, pp. 169-171. See also Bond, comments in ICCA Congress Series No. 5 (Kluwer 1991) at pp. 52-53. Nonetheless, certain arbitral institutions attempt to ensure the competence of their arbitrators by requiring that they be selected from a pre-established list. The ICC, however, does not have such lists and allows the parties the greatest possible freedom in this regard, as discussed further below. For a comment on the disadvantages of such lists, see Paulsson, "Lessons of the Last Decade: The Promise and Dangers of Globalisation and Practice under the LCIA Rules", The Internationalisation of International Arbitration (Graham & Trotman/Martinus Nijhoff 1995), p. 65.

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15
See, e.g., Bond, "The International Arbitrator: From the Perspective of the ICC International Court of Arbitration", Northwestern Journal of International Law and Business, vol. 12, no. 1 (1991), p. 1; Fouchard, note 1 above, p. 10; Mustill, note 4 above; Redfern and Hunter, note 1 above, pp. 213 et seq.

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16
In 1994, parties from 100 countries were involved in the Requests for Arbitration submitted to the ICC. See The ICC International Court of Arbitration Bulletin, vol. 6, no. 1 (May 1995), p. 3.

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17
See Carter, "Living with the Party-Appointed Arbitrator: Judicial Confusion, Ethical Codes and Practical Advice", The American Review of International Arbitration, vol. 3 (1992), p. 153.

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18
The ICC Rules, thus, provide in Article 2.6 that: "The sole arbitrator or the chairman of the arbitral tribunal shall be chosen from a country other than those of which the parties are nationals. However, in suitable circumstances and provided that neither of the parties objects ... the sole arbitrator or the chairman may be chosen from a country of which any of the parties is a national."Article 2.6 has consistently been interpreted by the Court as applying to the arbitrators' nationality, and not their place of residence. Article 2.1 of the ICC Rules, however, provides that the Court shall, in addition, "have regard to the proposed arbitrator's residence and other relationships with the countries of which the parties or the other arbitrators are nationals". It has been suggested, in this connection, that the domicile, rather than the nationality, of the prospective arbitrator is the proper criterion to be applied in ensuring neutrality. See Smit, "The New International Arbitration Rules of the American Arbitration Association", The American Review of International Arbitration, vol. 2 (1991), pp. 1 et seq. at 7-8. See also on the subject of neutrality, Lalive, "On the Neutrality of the Arbitrator and the Place of Arbitration", Swiss Essays on International Arbitration (Schulthess 1984), p. 23.

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19
For an account of the potential possible role of the co-arbitrator in such circumstances, see the remarks of Andreas Lowenfeld in World Arbitration & Mediation Report, vol. 6, no. 6 (June 1995), p. 128.

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20
Although appropriate persons of neutral nationalities can generally be found who possess the requisite legal training (and related language skills) when the applicable law is that of a well-known legal system, difficulties may nevertheless be encountered when there are few, if any, foreign lawyers familiar with a particular law (or otherwise able to read the law in its original language) and there is not a co-arbitrator who does. It has, thus, been noted that: "This insistence on neutral nationality is likely to produce some curious results. In particular, it could lead to a situation where the law applicable to the merits of the dispute is that of one or other of the parties (a situation which is by no means uncommon) but the sole or presiding arbitrator is someone who is not qualified and experienced in that system of law. Consider, for instance, a dispute between a Swiss company and a French company, where the law applicable to the dispute is the law of Switzerland. It seems sensible that the person chosen as the sole or presiding arbitrator should be a Swiss lawyer. Yet the insistence on a so-called 'neutral' nationality ensures that the one person who cannot be chosen (unless the parties agree otherwise) is a Swiss lawyer."See Redfern and Hunter, note 1 above at p. 224. In the example provided, however, the ICC would not normally have any difficulty finding a competent neutral arbitrator as there are many foreign lawyers who practice in Switzerland or are otherwise well-versed in Swiss law. The same might not apply, however, if the law to be applied were that of a country whose law may be less well-known or accessible to foreign practitioners than that of Switzerland.

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21
Although all of the information that a prospective arbitrator might wish to have with respect to such matters may simply not be available at the commencement of an arbitration, it will nevertheless obviously be desirable for prospective arbitrators to have some way of informing themselves about a case, to the extent reasonably possible, before deciding whether they are in a position to accept an appointment. This may, in fact, justify limited communications between a party and a prospective arbitrator at the beginning of an arbitration. See, in this regard, the IBA Rules, which authorize ex parte communications for this purpose (Article 5.1). See also Carter, note 17 above, p. 168. Any such discussions should not, however, involve an attempt to probe the prospective arbitrator's views with respect to the merits. In one recent instance, an arbitrator designated by a party in an ICC case was successfully challenged where it was established that he had engaged in extensive pre-appointment discussions of the case with counsel for one of the parties. The ICC Court's Secretariat is, for its part, uniquely placed to provide prospective arbitrators with information concerning a matter submitted to ICC arbitration, and insofar as it can do so, there may be a correspondingly lesser need for ex parte communications with the parties.

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22
There may nevertheless be circumstances in which the Court could legitimately consider that it can and should not confirm arbitrators for reasons relating to their ability to fulfill their functions. Insofar as the Court has authority to replace an arbitrator during the arbitration in such circumstances, it arguably should also have the authority to refuse to confirm an appointment on the same basis. Such circumstances could, for example, include severe illness or the failure of an arbitrator to satisfy certain legal prerequisites of service at the place of arbitration (e.g., if the law at such place requires that all arbitrators be of a particular nationality or satisfy other specific requirements). This might also be the case if an arbitrator did not appear to the Court to possess qualifications for which the parties had provided expressly in their arbitration agreement.

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23
See, in this regard, Eisemann, "La clause d'arbitrage pathologique", Commercial Arbitration Essays in Memoriam Eugenio Minoli (1974), pp. 129 et seq. at p. 135.

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24
Redfern and Hunter, note 1 above, pp. 215-216.

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25
In such cases, it will be for the arbitral tribunal to determine the language of the arbitration in accordance with Article 15.3 of the ICC Rules.

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26
Although it is nowhere expressly stated in Article 2 of the ICC Rules that the ICC Court may refuse to confirm an arbitrator on this basis, the Court, as already stated, has broad discretion to replace an arbitrator pursuant to a challenge under Article 2.8 or otherwise pursuant to Article 2.11 of the Rules. It would make little sense if the Court could not refuse to confirm an arbitrator for reasons that would justify such arbitrator's replacement under Articles 2.8 or 2.11.

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27
In one recent case, a sole arbitrator appointed by the Court resigned after one of the parties objected that, although he mastered the language of the arbitration, he did not have adequate knowledge of Mandarin Chinese, Taiwanese law being applicable in the arbitration.

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28
See, e.g., Eisemann, note 6 above, p. 221.

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29
It is to be noted, in this connection, that Article 15.3 of the ICC Rules expressly envisages the possibility that the arbitration might be conducted in more than one language.

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30
The laws of some countries may, however, contain such a requirement. See Redfern and Hunter, note 1 above, p. 214.

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31
See Bond, note 15 above, p. 5. But compare Mustill: "The assumption that a panel of three lawyers however expert and experienced in the law and in the handling of disputes, is invariably the right choice for every kind of dispute is not questioned as often as perhaps it ought to be." Cited in Poudret, "Conclusions", Arbitration and Expertise (ICC Publishing 1994), p. 144.

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32
See Mustill, note 4 above, p. 169.

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33
See Eisemann, note 6 above, p. 221:"Rappelons, en effet, que l'arbitre techniquement compétent peut être autorisé à avoir recours à un expert juridiquement compétent, et vice-versa. Le Règlement de la Chambre de Commerce Internationale prévoit expressément cette faculté; par voie de conséquence, ce texte, approuvé par les milieux représentatifs du commerce international, ne vient pas à l'appui d'une règle déontologique qui interdirait l'acceptation d'une mission que l'on ne saurait accomplir sans le concours d'un juriste ou technicien, selon le cas. Une grande flexibilité est donc de mise." [Tr.: "It is indeed to be remembered that the technically competent arbitrator may be authorized to have recourse to a legally qualified expert, and vice versa. The Rules of the International Chamber of Commerce expressly foresee this possibility; consequently, this document, approved by the representatives of international commerce, does not lend support to a deontological rule that would prohibit the acceptance of a mission that could not be performed without the assistance of a jurist or a technician, as the case may be. A great deal of flexibility is therefore appropriate."] Compare, however, Poudret: "Is not one of the main arguments in favor of arbitration that specialists well informed about the issues involved are used, thus obviating the need to consult experts?" See Arbitration and Expertise, note 31 above, p. 143.

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34
Redfern and Hunter, note 1 above, p. 217.

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35
Bond, note 14 above, p. 52.

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36
Lalive, note 18 above, p. 28. See also Redfern and Hunter, note 1 above, p. 216.

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37
There is at the same time a need to develop experience on the part of new arbitrators, and the ICC will, thus, occasionally appoint persons who have not served as arbitrators before. In such cases, however, the ICC will generally take account of experience (usually as counsel) that would appear to have helped prepare such persons to act as arbitrators. The arbitrators also enjoy the assistance of the Court's Secretariat throughout the arbitral process.

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38
See also Eisemann, note 6 above, p. 222; ABA/AAA Code, note 4 above, Canons I(C) and IV(B); Chartered Institute Guidelines of Good Practice, note 4 above, Article 2.

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39
The Rule goes on to say that arbitrators "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". Cost-efficiency is therefore also considered to be an important goal. See, in this regard, the discussion of the arbitrator's remuneration in Section II below.

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40
National laws also sometimes establish time limits for the completion of the arbitration, or otherwise may provide for the termination of the arbitrator's mandate if the arbitration is not progressing. See, e.g., Article 14(1) of the UNCITRAL Model Law. For a recent national court decision regarding the arbitrator's duty of diligence, see also K/S Norjarl A/S v. Hyundai Heavy Industries Co. Ltd [1991] 1 Lloyd's Rep., pp. 260 and 524.

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41
For an interesting discussion of the arbitrator's duties in respect of availability, see Norjarl v. Hyundai, note 40 above, in which, with respect to the scheduling of a hearing, Lord Justice Leggatt noted (p. 533):"Arbitrators are under no absolute obligation to make particular dates available: their obligation is to sit on such dates as may reasonably be required of them having regard to all of the circumstances including the exigencies of their own practices." In the event, however, that dates cannot be found to the satisfaction of the parties, then the judges in that case appeared to recognize the possible need for the arbitrators to withdraw.

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42
See, e.g., Eisemann, note 6 above, p. 222: "Il nous paraît donc normal d'exiger que l'acceptation de la mission engage l'arbitre à se consacrer en priorité à celle-ci." [Tr.: "It therefore appears normal to require that acceptance of the mission commits the arbitrator to give priority to the same."]

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43
See, e.g., Fouchard, note 1 above, p. 22.

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44
See, with respect to this, Mustill and Boyd, note 1 above, p. 282. See also Section I.C below.

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45
As one commentator recently put it: "within the hierarchy of procedural maxims, the maxim of a speedy conduct of the proceedings is clearly less important than the overriding maxim to see to it that the parties have sufficient and adequate opportunities to be heard", Blessing, "The ICC Arbitral Process, Part III: The Procedure Before the Arbitral Tribunal," The ICC International Court of Arbitration Bulletin, vol. 3, no, 2 (November 1992), pp. 18 et seq. at 31.

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46
See Davis, Lagacé Glain and Volkovitsch "When Doctrines Meet - Fast-Track Arbitration and the ICC Experience", Journal of International Arbitration, vol. 10, no. 4 (December 1993), p. 69.

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47
Even if not replaced, their remuneration may be adversely affected as the "rapidity of the proceedings" is one of the elements that the Court is required to take into account when fixing arbitrators' fees (Appendix II to the ICC Rules, Art. 18).

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48
When arbitrators are replaced under Article 2.11, they can be deprived of remuneration if the Court considers this to be appropriate in the circumstances. See Section II below.

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49
It is, however, recognized that whether the withdrawal of an arbitrator will necessarily delay the completion of the proceedings may depend upon the possibility for the remaining arbitrators, if any, to continue the arbitration proceedings in that arbitrator's absence and to render an award as a "truncated tribunal". For a general discussion of this topic, see ICCA Congress Series No. S (Kluwer 1991), pp. 241 et seq.; see also Schwebel, International Arbitration: Three Salient Problems (Grotius 1987) and Schwebel, "The Validity of an Arbitral Award Rendered by a Truncated Tribunal", The Goff Lecture 1994, City Polytechnic of Hong Kong, Faculty of Law, reprinted in The ICC International Court of Arbitration Bulletin, vol. 6, no. 2 (November 1995), p. 19.

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50
See, e.g., the French New Code of Civil Procedure, Art. 1462, and Fouchard, note 1 above, p. 22.

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51
The UNCITRAL Arbitration Rules also do not restrict in any way the arbitrator's right to resign (see Article 13).

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52
Holtzmann and Neuhaus, note 13 above, pp. 464465 and 473.

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53
Ibid. It was, however, further noted that the Model Law "does not deal with the legal responsibility of an arbitrator or other issues pertaining to the contractual party-arbitrator relationship". It was therefore suggested that an arbitrator's right to resign might be restricted by agreement between the parties and the arbitrator. See also Veeder in ICCA Congress Series No. 5, note 14 above, at pp. 277-278. Apart from the issue of whether arbitrators can be compelled to perform their functions, the desirability of forcing them to do so has been questioned. See Mustill and Boyd, note 1 above, at p. 231: "Nothing would be less conducive to the proper administration of justice than the conduct of a reference by a reluctant arbitrator."

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54
Ivan Milutinovic PIM v. Deutsche Babcock AG, Swiss Federal Tribunal, First Civil Section, April 30, 1991, as discussed in Schwebel, The Goff Lecture 1994, see note 49 above.

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55
Ibid.

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56
As a practical matter, the ICC is not aware of any recent case in which relief may have been sought against an ICC arbitrator for damages suffered as a result of such arbitrator's resignation. Of course, the possible existence of any damage might be affected by the possibility for an arbitral tribunal to render an award notwithstanding the withdrawal of one of its members. See note 49 above.

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57
See, in this connection, Bond, ICCA Congress Series No. 5, note 14 above at p. 284. When an arbitrator seeks to resign for purely partisan reasons, it can, of course, be argued that the arbitral process would be best served by his replacement. In such case, however, the ICC Court would be more likely to refuse to accept an abusive resignation and, instead, to replace that person under Article 2.11 of the Rules if there were grounds for doing so.

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58
The same might be said to apply where the parties subsequently agree upon procedures for the conduct of the arbitration that the arbitrators do not feel that they are competent to administer or possibly agree upon a change of the place of arbitration specified in the arbitration clause. See in this regard Mustill and Boyd, note 1 above, p. 282.

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59
Although counsel appearing before a court can usually be sanctioned by the judge for improper behavior, there is relatively little that an arbitral tribunal can do to curb repeated discourteous or otherwise improper conduct by counsel, as the arbitrators found in this case. For an interesting discussion of the conduct of counsel in international arbitrations, a subject that, thus far, has generated little commentary, see Paulsson, "Standards of Conduct for Counsel in International Arbitration", The American Review of International Arbitration, vol. 3 (1992), p. 214.

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60
Such a position would, moreover, be consistent with the rule to be found in the ABA/AAA Code (note 4 above). According to Canon II.E of that Code, the arbitrator, if challenged for partiality or bias by one of the parties, should allow the relevant challenge procedures in the governing arbitration rules to be followed.

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61
See, e.g., Article 14.2 of the UNCITRAL Model Law and Article 11.3 of the UNCITRAL Arbitration Rules.

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62
See, e.g., Article 15 of the UNCITRAL Model Law. Similar provisions are contained in a great many arbitration laws and rules.

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63
The ABA/AAA Code (see note 4 above) meanwhile states explicitly (see Canon I.A) that: "an arbitrator has a responsibility not only to the parties but also to the process of arbitration itself, and must observe high standards of conduct so that the integrity and fairness of the process will be preserved". Canon I.G further provides that: "An arbitrator should make all reasonable efforts to prevent delaying tactics, harassment of parties, or other abuse or disruption of the arbitration process."

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64
ICC Rules, Art. 19. As Frédéric Eisemann wrote more than twenty-five years ago with respect to the possible subsequent challenge of an award: "Déontologiquement parlant, peut-on concevoir qu'un arbitre puisse prendre position de manière à compromettre la sentence? Qu'il soit convaincu ou non du bien-fondé du recours ... il nous semble que l'arbitre doit rester neutre et d'une discrétion absolue." [Tr.: "Deontologically speaking, can one conceive that an arbitrator might take a position such as to place an award in jeopardy? Whether or not he is convinced of the correctness of the challenge ... it seems to us that the arbitrator must remain neutral and of absolute discretion."] Eisemann, note 6 above, p. 232. See also Hunter and Paulsson, note 11 above, p. 159, and the ABA/AAA Code (note 4 above), Canon VI.C: "After an arbitration award has been made, it is not proper for an arbitrator to assist in any post-arbitration proceedings, except as may be required by law."

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65
Article 5.4 of the IBA Rules (note 4 above) provides in this connection (but only in the context of improper communications between arbitrators and parties) that: "Normally, the appropriate initial course of action is for the offending arbitrator to be requested [by the other arbitrators] to refrain from making any further improper communications with the party. Where the offending arbitrator fails or refuses to refrain from improper communications, the arbitrators may inform the innocent party in order that he may consider what action he should take." In the case of an ICC arbitration, however, the better course would usually be to inform the ICC, rather than the party directly.

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66
Indeed, arbitrator misconduct may, in certain circumstances, merely be counter-productive and, thus, do less harm than the possible disruption that might be caused by the arbitrator's replacement. In the view of two authorities: "In theory, where an arbitrator is clearly in breach of the rules of the relevant institution, the proper course would be for the remaining arbitrators to take action to have the defaulting arbitrator disqualified. However, this is a difficult and delicate matter and such a drastic course of action is only appropriate in a flagrant case." Hunter and Paulsson, note 11 above, p. 158.

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67
Eisemann, note 6 above, pp. 230-231. See also, in this regard, Hunter and Paulsson, note 11 above, p. 158.

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68
As Fréderic Eisemann observed long ago: "aucun arbitre ne ... [peut] se décharger de sa tâche sur une tierce personne, la mission d'arbitre lui ayant été confiée intuitu personae".[Tr.: "no arbitrator can assign his task to a third person, the mission of arbitrator having been conferred upon him intuitu personae".] Eisemann, note 6 above, p. 229. See also Hunter and Paulsson, note 11 above, p. 158 to the same effect. This principle was not, however, subsequently incorporated in the IBA Rules. The ABA/AAA Code (see note 4 above) provides, however, that: "An arbitrator should not delegate the duty to decide to any other person" (Canon V.C).

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69
See, e.g., Article 15 of the Swiss Intercantonal Arbitration Convention (the "Concordat").

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70
It also appears to be accepted in certain jurisdictions (in domestic Swiss arbitration practice, for example) that the secretary may draft the arbitrator's award. See, e.g., Lalive, Poudret, Reymond, Le droit de l'arbitrage interne et international en Suisse (Payot 1989), p. 95. The practice is, of course, also prevalent in many national court systems where clerks are employed.

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71
See the copy of the most recent version, dated October 1, 1995, as reproduced in The ICC International Court of Arbitration Bulletin, vol. 6, no. 2 (November 1995), p. 77.

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72
In this connection, the Court's principal concern is usually to ensure that the cost of the arbitration to the parties is not unduly increased.

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73
This does not mean that it is necessarily improper for arbitrators to obtain assistance with respect to routine tanks or even legal research, but arbitrators will not normally be compensated separately for any such assistance other than in accordance with the Court's Note referred to above.

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74
See, e.g., Reymond, "The President of the Arbitral Tribunal", ICSID Review - Foreign Investment Law Journal, vol. 1, no. 9 (Spring 1994), p. 1.

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75
See more generally with respect to such issues, Arbitration and Expertise, note 31 above.

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76
See Fouchard, note 1 above, p. 22.

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77
See, e.g., the 113A Rules, note 4 above, Article 5; the ABA/AAA Code, note 4 above, Canon 111.B; Craig, Park and Paulsson, note 6 above, pp. 239-240.

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78
See, e.g., Wetter, note 4 above, p. 103.

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79
Craig, Park and Paulsson (see note 6 above) observe (at p. 239): "Little has been written about misconduct of ICC arbitrators during the course of proceedings. Few cases have been publicized where the Court of Arbitration, whether pursuant to challenge or on its own motion, has used its power to remove an arbitrator for specific misconduct." This is precisely because there have been few such cases.

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80
In one case, however, the Court replaced a sole arbitrator who, contrary to Article 15.1 of the ICC Rules, had refused to organize a hearing requested by one of the parties and who, moreover, contended that he was not bound by the ICC Rules. This was an extreme and obvious case of misconduct.

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81
I can, for example, remember an instance where an arbitral tribunal allowed four days for a hearing in an ICC case although both parties wished to be allowed more time. The arbitrators refused, but neither party subsequently pursued the matter with the ICC.

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82
See, e.g., Jarrosson, Note on Cass. civ. 1e, December 8, 1988, Revue de l'arbitrage (1989), pp. 482 et seq. See also Jarrosson, Note on Paris 1e Ch., suppl. April 24, 1992, Revue de l'arbitrage (1992), p. 601, and Fouchard, note 1 above, pp. 20 and 27.

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83
For example, it might be argued that all questions of scheduling following the Terms of Reference are subject to the provisions of Articles 14.1 and 18 of the ICC Rules.

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84
See, e.g., Redfern and Hunter, note 1 above, pp. 262-263.

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85
Mustill and Boyd, note 1 above, p. 282. See also, in this connection, Mayer, "Le pouvoir des arbitres de régler la procédure, une analyse comparative des systèmes de civil law et de common law," Revue de l'arbitrage (1995), p. 163.

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86
See Hascher, comments on the procedural order rendered in ICC arbitration no. 5282 on June 7, 1988 in Journal du droit international (1994), no. 4, pp. 1086-1088. See also, for a discussion of the law and practice in Germany in this regard, Berger, International Economic Arbitration (Kluwer 1993), pp. 248-252. In many Asian countries as well conciliation is built into the arbitration process.

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87
ABA/AAA Code (note 4 above), Canon IV.H.

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88
The IBA Rules, however, arguably go further than the ABA/AAA Code in this regard by allowing the arbitrators "to make proposals for settlement to both parties simultaneously", where the parties have either requested them to do so or consented to a suggestion to this effect by the arbitral tribunal (Article 8). Arbitrators who accept to do so must nevertheless be very careful to avoid giving any appearance of partiality.

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89
It is partly for this reason, moreover, that the ICC Rules of Optional Conciliation (Article 10) prohibit a conciliator from acting in any subsequent arbitration unless the parties otherwise agree. See Schwartz, "International Conciliation and the ICC", The ICC International Court of Arbitration Bulletin, vol. 5, no. 2 (November 1994), p. 5. See also Hascher, note 86 above, and Hunter and Paulsson, note 11 above, p. 158.

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90
See, e.g., Staughton, "Common Law and Civil Law Procedures: Which is the More Inquisitorial? A Common Lawyer 's Response", Arbitration International, vol. 5, no. 4 (1989), pp. 351 et seq.

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91
See Reymond, in his reply to Staughton in Arbitration International, vol. 5, no. 4 (1989), pp. 357 et seq., and in "The Application of Civil Procedure to Arbitrations" (paper presented at a conference in London on February 17-18, 1994 on the Reform of Commercial Arbitration Procedures); see also Borris, "Common law and civil law: fundamental differences and their impact on arbitration", The Arbitration and Dispute Resolution Law Journal, part. 2 (June 1995), pp. 92 et seq.

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92
This being said, judges in common law jurisdictions today play an increasingly activist role in managing civil litigation. See, in this regard, Holtzmann, "Streamlining Arbitral Proceedings: Some Techniques of the Iran-United States Claims Tribunal", Arbitration International, vol. 11, no. 1 (1995), pp. 39 et seq. and his reference therein to Kaplan, "Role of the Judge in Civil Litigation", Judges' Forum Newsletter, vol. 2, no. 6 (March 1994).

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93
Indeed, the IBA Rules (see note 4 above) provide (Rule 1) that arbitrators shall "proceed diligently and efficiently to provide the parties with a just and effective resolution of their disputes" (emphasis added).

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94
Blessing, note 45 above, p. 43.

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95
Colloquium of arbitrators at ICC headquarters in Paris on May 3, 1995 (proceedings unpublished).

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96
See Paulsson and Rawding, "The Trouble with Confidentiality", The ICC International Court of Arbitration Bulletin, vol. 5, no. 1 (May 1994), p. 48. Although the relevant case law deals primarily with the obligations of the parties, rather than the arbitrators, it nevertheless has obvious implications for the determination of the arbitrators' duties as well.

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97
This is, moreover, implicit in the provisions of Articles 15.4 and 23.2 of the ICC Rules, respectively, which provide that persons not involved in the proceedings shall not be admitted to hearings and that copies of the award shall be made available to the parties, but to no one else. The Court's Internal Rules (Appendix II to the ICC Rules), moreover, affirm the confidential character of the work of the ICC Court (see Articles 2-4 thereof).

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98
The confidentiality of the arbitral tribunal's deliberations is expressly recognized in many legal systems. See, e.g., Art. 1469 of the French New Code of Civil Procedure. The question therefore regularly arises as to whether dissenting opinions may be communicated to the parties without thereby violating the secrecy of the arbitral tribunal's deliberations and possibly imperiling the award in some jurisdictions. As the ICC Rules do not contain any express provisions in this regard (see, however, Article 19 of the ICC Rules and Article 17 of the Court's Internal Rules), the Court leaves it up to the majority arbitrators to decide in any such case whether a dissenting opinion may be communicated to the parties. Today, dissenting opinions appear to be generally accepted in international arbitration, although they remain relatively unusual in ICC arbitrations. See, in this regard, the "Final Report on Dissenting and Separate Opinions" of the Working Party on Dissenting Opinions and Interim and Partial Awards of the ICC Commission on International Arbitration, The ICC International Court of Arbitration Bulletin, vol. 2, no. 1 (June 1991), p. 32.

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99
Although this is nowhere expressly stated in the ICC Rules, this is entirely consistent with the spirit of the Rules and, in particular, Article 2 of the Internal Rules.

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100
In one instance, however, an arbitrator was challenged for having published an article that the challenging party alleged concerned the substantive issues in the arbitration, although it did not reveal any information about the arbitration. The article was published after the arbitral tribunal had completed its deliberations, but before it had signed its award. The challenge was rejected.

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101
Parties may be particularly concerned about the risk of such information being communicated to third parties where an arbitrator is sitting in an arbitration that may be related to, but separate from, another arbitration in which he or she (but not the other arbitrator) is also sitting as an arbitrator. The so-called "privileged information" of the common arbitrator in such cases is a complex subject in and of itself and has been the subject of a number of commentaries. See, e.g., Reymond, "Des connaissances personnelles de l'arbitre à son information privilégiée", Revue de l'arbitrage (1991), p. 4; Bedjaoui, "Des fortes vérités de Cassandre aux modestes correctifs de Némésis", Etudes de droit international en l'honneur de Pierre Lalive (Helbing & Lichtenhahn 1993), p. 385.

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102
See, e.g., the IBA Rules, note 4 above, Article 9.

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103
See, e.g., Fouchard, note 1 above, pp. 3-4.

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104
This is explicitly stated in the ABA/AAA Code (see note 4 above, Canon I.H.): "certain ethical obligations continue even after the decision in the case has been given to the parties".

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105
The ICC Rules contain no express provisions in this regard, although the correction or interpretation of an award may nevertheless be possible, given the general rule contained in Article 26 and taking into account relevant legal provisions. In the context of ICC arbitration, an arbitral tribunal, of course, has a duty to comply with decisions rendered by the Court in scrutinizing the draft arbitral award submitted to the Court in accordance with Article 21 of the ICC Rules.

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106
This has not always been (and still today is not necessarily) the case, however. Indeed, it is stated in the ABA/AAA Code (see note 4 above) that (Canon VI.D): "In many types of arbitration it is customary practice for the arbitrators to serve without pay." See also, with respect to past practice in England, Mustill, note 4 above, p. 171. In modern international commercial arbitration, however, payment is usual.

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107
See, e.g., Fouchard, note 1 above, p. 27.

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108
There have, however, been certain rare ICC cases in which arbitrators have reportedly commenced legal actions or lodged complaints with Bar officials in response to allegedly unacceptable conduct of attorneys appearing before them, but after the conclusion of their arbitral service.

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109
See note 9 above.

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110
See the IBA Rules (note 4 above), Introductory Note: "The normal sanction for breach of an ethical duty is removal from office, with consequent loss of entitlement to remuneration." (Emphasis added.)

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111
See Schwartz, note 9 above, pp. 13-14. An interesting, related issue is whether an arbitrator should be entitled to payment if the arbitration award rendered is annulled and the arbitration proceedings have to be repeated. The argument has been made that the annulment of the award necessarily also annuls the award of costs provided for therein. See Mustill and Boyd, note 1 above, pp. 245-246. In an ICC case, however, the arbitrators' fees are fixed by the ICC Court in accordance with Article 20.2 of the ICC Rules. The arbitrator will also have been fully paid prior to any such annulment. The parties would, thus, have to seek to recover such payments from the arbitrators if they were considered to have a right to repayment. I am not aware of any ICC case, however, in which this has occurred.

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112
See IBA Rules (note 4 above), Art. 6. Although it appears to be admitted in certain jurisdictions that arbitrators may, prior to appointment, discuss the matter of their fees with the party appointing them, it is generally considered that any arrangements made must be disclosed and consented to by the other party and that any unilateral arrangements made subsequent to appointment would be improper. See, e.g., Norjarl v. Hyundai, note 40 above.

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113
Ibid., Art. 7. See also Hunter and Paulsson, note 11 above, pp. 157-158.

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114
With respect to the latter, see the Secretariat's notice to arbitrators, dated January 1, 1993, in The ICC International Court of Arbitration Bulletin, vol. 4, no. 1 (May 1993), p. 29.

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