It may be pertinent to begin this short presentation by thanking the organizers of this colloquium for inviting me to team up with most of the distinguished personalities in the field of arbitration to discuss some of the current and important topics in arbitration. Although I am very much a member of the International Chamber of Commerce, Court of Arbitration, this particular invitation came to me from the International Centre for Settlement of Investment Disputes, for which I am delighted and grateful, since a constant cross-fertilization of ideas of this nature at a colloquium helps in the development of arbitration.

My own topic for these few minutes, as you can see from the programme, is "Recourse Against the Arbitrator During the Arbitral Proceedings". This is an overlapping topic that speakers before and even after me would touch upon: therefore whatever I am about to say could have been better presented by some of our distinguished speakers herein present today.

A party to the ICSID Arbitration may propose to the arbitral tribunal1 the disqualification of any of its member on two grounds only. The first ground is in a case where such an arbitrator lacks, manifestly, the essential qualities as required by the Convention or where the arbitrator was ineligible for appointment as a member of the tribunal2 under the relevant provisions of the Convention. With regard to the second ground of ineligibility it may be observed here that what is intended is that the requirements of Section 2 of Chapter IV of the Convention should be complied with on the appointment of an arbitrator. Of particular significance is the stipulation that the arbitral tribunal shall comprise of one or an uneven number of arbitrators3 and that the majority of the arbitrators shall be nationals of states other than the contracting state parties to the dispute.4

An important provision as far as the qualifications for appointment as an arbitrator under an ICSID Arbitration is concerned is paragraph (1) of Article 14 which provides thus:

Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.

The importance of these requirements is no doubt underscored by the fact that lack of any could constitute the basis for a motion to disqualify an arbitrator under Article 57. The procedure for doing this is set out in some detail in ICSID Arbitration Rules.5 It entails filing the proposal for disqualification (including the reasons) with the Secretary-General, who is required to transmit the proposal to the tribunal and notify the other party forthwith. If the proposal relates to majority of members of the tribunal, the Secretary-General is required to transmit it to the Chairman of the Centre.

In either case the arbitrator to whom the proposal relates may, without delay, furnish explanations to the authority to which the proposal is transmitted. The decision on the proposal is taken by the members of the [Page108:] tribunal in the absence of the member to which it relates, or by the Chairman where the proposal relates to a majority of the members of the tribunal, or where they are unable to reach a decision.

Close examination of paragraph (1) of Article 14 ICSID Convention reveals the due as to the grounds that may constitute the basis of challenge. These are, firstly the requirement of high moral character, secondly competence in law or commerce, and thirdly, independence in the exercise of arbitral powers. The third requirement is considered quite fundamental, indeed it may be regarded as the objective for which the other two were designed.

This concern for impartiality in the arbitral process is universal, and rules designed to insulate proceedings from such a taint permeate the rules of arbitral institutions worldwide, including those of AAA and ICC. These rules are invariably designed to ensure an arbitrator's impartiality at the earliest time, that is, on his appointment or precisely when he is proposed for appointment.

Thus the ICSID Rules require an arbitrator who has just been appointed to decide on the matter before the tribunal fairly as between the parties and not to accept any instruction or compensation with regard to the proceedings from unauthorized sources. He is also required to attach to this declaration a statement of his past and present professional business, and other relationship with the parties,6 if any.

In some other arbitral institutions the requirement to disclose is perhaps more exacting. For instance the ICC Rules require a prospective arbitrator to disclose in writing to the Secretary General of the Court any facts or circumstances which might call his independence into question in the eyes of the parties. Where these facts arose after his appointment, he is also required to immediately disclose these facts to the Secretary General of the Court.7

So also the UNCITRAL Arbitration Rules impose a similar requirements on arbitrators of disputes referred under its Rules.8 The duty to disclose is no doubt onerous. Not only must the arbitrator disclose what he thinks may affect his impartiality but also what would appear to others as affecting such a state of mind. Arbitrators must not only be fair they must be seen to be fair.

It may be asked what mischief the requirement of disclosure is meant to address? What, for instance, is the effect of a disclosure which shows that the arbitrator has links with one of the parties? If this is the case, it is the responsibility of the other party to immediately challenge the arbitrator's appointment; however, where the arbitrator is "party-appointed", as commonly happens, good sense and expediency may sometimes dictate that the arbitrator should continue on the panel.9 It is perfectly within a party's discretion to condone the fact that an arbitrator has close links with the other. Of course he thus loses the right to proceed against the award on this ground; if on the other hand there is no disclosure, and the arbitration continues, it may be an evidence of lack of impartiality, if subsequently facts emerge establishing previous links with one of the parties.10 By the same token, links which are developed after appointment as arbitrator may sometimes prompt the withdrawal of an arbitrator, in order not to affect the validity of an award.

It has been stated that in many of the rules, an arbitrator may be challenged for lack of impartiality or independence. Indeed in the laws of many countries such a provision is commonplace.11 Despite the fundamental nature of these duties very few arbitral bodies are persuaded to offer definitive guidance as to [Page109:] what amounts to impartiality. In truth general statements as to what amounts to impartiality have been of little assistance. A starting point for guidance is to acknowledge that although special interest in the proceedings by one of the arbitrators is the key element it is not every type of interest that disqualifies, but one which is so connected with his duties as to render it inequitable that the other party should be bound under the agreement to continue or abide by the award.12 The question whether this exists is undoubtedly one of fact, but some well-known instances include financial or professional interests such as being in the employment of one of the parties13 or being a substantial shareholder14 or being a good client15 of the party. Arbitrators should also, as a rule, decline to act in a matter on which they had previously advised as counsel to a party.16 Previous professional connection could be a worrying basis for disqualification.17 A former President of the French Supreme Court has observed that it is a more serious obstacle to impartiality to have given a prior consultation in a case than to have ties of friendship with the party; such ties, he observed, can be disregarded as a matter of professional rigour, but p in adhering to one's earlier opinion is a stronger emotion.18 The soundness of this observation is echoed in a different context by paragraph (4) of Rule 1 ICSID Rules which bars a person who had previously acted as conciliator or arbitrator in a dispute from serving on the Tribunal.

Under the AAA Rules, an arbitrator may be challenged in any circumstance that gives rise to a justifiable doubt as to the impartiality or independence of the arbitrator. Notice of such challenge must be given within 15 days either of the appointment or after the circumstances giving rise to such challenge become known to the challenging party.19 The Rules direct that such challenge, which must be in writing, should be addressed to the administrator. Such arbitrator must withdraw if all the parties agree to the acceptance of the challenge. The arbitrator may even withdraw on his own volition, otherwise in a case of failure on the part of the arbitrator to withdraw, the final decision shall be made by the administrator "in its sole discretion".20

While all the Rules are designed to ensure that a challenge is initiated early in the proceedings, this may not always be practicable. Indeed lack of independence or existence of bias may not become manifest until late in the proceedings; either by discovery of facts which connect the arbitrator with a party, or in the procedure the arbitrator has adopted in conducting proceedings. As to the latter, two basic concepts in proceedings of a judicial nature instruct not only that a party must be given full opportunity to state his side of a dispute - audi altarem partem - but that the judge must be free of bias in determining the dispute - and not be a judge in his own cause - nemo judex in causa sua . Not every case of wrongful procedure, however, points to bias or unfairness. An arbitrator, on the other hand, should carefully watch his demeanour and utterances during the proceedings as this may create a wrong impression of bias. By the same token, material discussions with the other party or material determinations ought to be made in the presence of all the parties. The general principle was stated in England in 1855 in the case of Drew v. Drew when Lord Cranworth L.C. observed thus:

The principle of universal justice requires that the person who is to be prejudiced by the evidence ought to be present to hear it taken, to suggest cross-examination or himself to cross-examine, and to be able to find evidence if he can, that shall meet and answer it, in short to deal with it as in the ordinary course of legal proceedings.21

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Where a challenge is instituted, the procedure adopted for determining the challenge by various arbitral institutions, is a salutary pointer to the diversity of orientation, commercial practice and custom, which such institutions represent. Also some procedures are determined by the need to ensure that proceedings are not unnecessarily disrupted by frequent recourse to challenges. While under ICSID Rules a challenge may be determined by the other members of the tribunal not affected by a challenge,22 the ICC Rules (as do most arbitral centres) entrusts this responsibility to its supervisory body.23 Under the UNCITRAL Rules, Article 12 states that the appointing authority designated by the parties is competent to determine the challenge. It should also be noted that different perspectives may become apparent under national laws. Thus for countries which have adopted the UNCITRAL Model Law it will be seen that the primary responsibility to determine a challenge rests squarely on the arbitral tribunal, subject to a further consideration by the designated court or authority, where the tribunal rejects the challenge.24 In some countries too, the courts still retain a substantial measure of supervisory control over arbitrators where there are serious complaints of misconduct or bias.

A current problem of some significance on the issue of challenge is whether a party should be prevented from appointing the same arbitrator in a series of related cases which examine the same or similar subject matter. Let us illustrate the problem with these illustrations:

Scenario 1

Due to factory closure arising from a malfunction in its plant, C a manufacturer of children's wear is in alleged breach of a supply agreement with three distributors X, Y, and Z, who, under their respective contracts with C, resort to arbitration. The arbitration clause provides for a panel of three arbitrators, one to be appointed by each party, while the chairman is to be appointed by the co-arbitrators. Can C appoint B as co-arbitrator in all three cases arising from the alleged breach?

Scenario 2

E, the employer enters into a contract with C, who enters into sub-contracts with S1, S2 and S3, who are subcontractors.25 In the absence of an agreement to have a multiparty arbitration, can C nominate a common co-arbitrator in arbitrations involving C and the other subcontractors?

Scenario 3

Can co-arbitrators in Scenario 1 or 2 appoint the same chairman in two or more of the cases?

It may be instructive to examine why C should wish to appoint a common co-arbitrator in the first two cases or why co-arbitrators are persuaded to appoint a common chairman. Firstly one may concede that as the issues in the cases are related, or perhaps substantially the same, it is logical that a person familiar with the facts would move with greater dispatch than any other person. This is particularly true in matters of procedure or presentation of evidence. After all, expedience and speed are paramount considerations for parties in an arbitration.

Secondly, and this follows from the first point, it is likely that a common arbitrator would ensure consistency in the findings of the tribunal. Of course this does not mean that arbitrators should apply a concept of binding precedent, but it does presuppose that where issues are substantially the same, there is a reasonable expectation that subject to some cogent factor, the reasoning on which the awards are based will be similar. This factor weighed heavily in favour of the English Court of Appeal decision on Abu Dhabi Gas Liquefaction Co. Ltd v. Eastern Bechtel Corporation ,26 where the court saw nothing amiss in appointing a common sole arbitrator in two arbitrations dealing with the same subject matter.

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Such considerations hardly arise in domestic litigation, as a variety of principles adequately address the attendant problems. Thus, issues of this nature could be consolidated and an umbrella judgment given which will bind all interested parties. Also, by virtue of the principle of res judicata a judicial decision operates as an estoppel against parties, their privies and interested persons who subsequently wish to raise the same issues or facts in fresh proceedings before the court. Thirdly, it is not up to litigants to choose the judge who will determine a case.

On the other hand, the power to consolidate is not generally available to an arbitrator. Such a procedure can only be contemplated pursuant to agreement of the parties or where there is a multiparty arbitration. Questions as to the propriety of a challenge instituted against an arbitrator in these circumstances are multiple. Must separate arbitrators be appointed in order to ensure independent awards? Is expedience to be sacrificed because of suspicion that the common arbitrator will be influenced by the proceedings in related cases? Is a party not entitled to autonomy or freedom in choosing a co-arbitrator? Is it not better for the challenge to be reserved until it becomes clear that the arbitrator has been unreasonably influenced by the other proceedings? Or must such possible lack of independence be anticipated?

It will be difficult to resolve these questions by an answer which is all-embracing. It should also not be forgotten that sometimes the cases will not be identical. Thus, although based on the same facts, a different law may apply or, as will indeed happen, different presentations will be made by different lawyers. There is also the consideration of different parties.

Strong views have been expressed by distinguished arbitrators for and against the view that a common chairman, common sole arbitrator or common party-nominated arbitrator could be appointed in related cases. One may query whether it is in all cases where such appointments are made that a challenge on the basis of the arbitrator's apparent lack of independence should be sustained. It may be assumed that in most cases where the arbitrator has a prior connection, or has previously expressed himself on a similar point, a challenge may be justified. The question that follows is whether this should also be the position where similar cases proceed almost simultaneously. My view is that it is difficult to be dogmatic in all these cases and that each case will have to be determined on its own merits.

It may well be that a distinction should be drawn between co-arbitrators on the one hand and a sole arbitrator or chairman on the other. Party-appointed co-arbitrators are often in a better position to appreciate and to explain to other arbitrators the legal and other material assumptions of the party appointing them, hence the rigid rules on independence are sometimes relaxed. However, the chairman or sole arbitrator is expected to be absolutely independent. In these circumstances, even if the appointment of a common co-arbitrator in related cases is excused, the same may not hold for a common chairman or a sole arbitrator.

Arbitral institutions understandably wish to avoid instances where an award made under their rules is set aside by domestic courts. For this reason, most institutions act within the spirit of their rules.27 When faced with a challenge by one of the parties in these circumstances therefore, it may well be advisable in some cases to err on the side of caution by upholding such a challenge rather than risk the validity of the award. In other cases it may be expedient to reject the challenge especially where attempt to delay the proceedings is suspected as the underlying reason for such a challenge by one of the parties, particularly the respondent. Much however depends on the motives of the challenger. Does he wish to avoid duplication and increased costs? Accepting a common arbitrator avoids duplication and unnecessary costs. Indeed it is the best option where there is no agreement to consolidate.28 In addition accepting such a procedure does not preclude an attack on the award if subsequently the arbitrator adopts a procedure or expresses an opinion which points to improper influence. This is because the duty of a common arbitrator to maintain an open mind and decide the case [Page112:] on the evidence presented, free from preconceived notions, is not extinguished by the willingness of a party to accept his appointment. Where an arbitrator is challenged, whether on the ground that he is not qualified professionally or that he is biased, he is invariably given an opportunity to state his views. Most institutional arbitral bodies are careful to avoid the impression that the determination of a challenge is in the nature of litigious proceedings where the challenged arbitrator is on trial. Great emphasis is laid on the fact that the proceedings are simply an administrative procedure leading to the establishment of an acceptable tribunal. Although information about the challenge is normally circulated to all the parties concerned, it is usually not necessary to communicate to the parties all correspondence between the arbitrator and the body determining the challenge unless such correspondence relates to a disclosure of possible conflict of interest.29 Most institutions like ICC also reserve the right not to give reasons for reaching a decision on the challenge.30 This has sometimes been criticized as not providing enough guidance to arbitrators who wish to know the extent of their obligations to maintain impartiality or in other respects. What can be said with some degree of certainty, however, is that domestic courts or supervisory bodies will invariably be more attentive to arguments which, if sustained, could lead to the refusal to enforce the award if the arbitrator is allowed to continue.

Generally, serious thought should be given by an arbitrator who is challenged especially on ground of partiality or misconduct as to whether he should not withdraw from the proceedings.31 It is generally conceded that such a withdrawal proves nothing;32 far from establishing the culpability of the arbitrator, it rather demonstrates the arbitrator's acute perception of his responsibilities. As highlighted earlier, the appearance of bias must be avoided. The question, thus, is not just whether the arbitrator is in fact impartial but whether a reasonable person might consider that there is a possibility that he is not.

Recourse on other grounds

Replacement

An arbitrator may be removed and be replaced at any time during the arbitration proceedings before the award is rendered. Where this is initiated by a party, some rules33 assimilate the procedure for such with the procedure for challenge. Indeed the procedure for challenge is available for virtually any complaint against an arbitrator. Under some rules also, only a party can initiate replacement of the arbitrator,34 while in others any of the parties including the supervisory body may move for replacement. In this latter regard, Article 2(11) of the ICC Rules provides that an arbitrator shall be replaced when the ICC Court decides that he is prevented de jure or de facto from fulfilling his functions or that he is not fulfilling his functions in accordance with the Rules or within prescribed time limits.

An example of such an omnibus article on replacement of an arbitrator is contained in the AAA Rules. It directs that a substitute arbitrator shall be appointed unless it is otherwise agreed by the parties.35 Such incidents calling for a substitute may arise in the following cases: if an arbitrator withdraws alter a challenge; or if the administrator sustains the challenge; or if the administrator determines that there are sufficient reasons to accept the resignation of the arbitrator; or if an arbitrator dies.36

Replacement on grounds of delay or tardiness is important too, in view of the acclaimed advantage of arbitration as an expeditious alternative dispute resolution process. Although parties may impose time limits, such are invariably subject to extensions in designated situations. Also, not every delay in proceedings is attributable to the arbitrator, or indeed any deliberate dilatory conduct on his part, as for instance where the tribunal is paralysed by grave disagreement among its members,37 or where the comportment of the parties prevent the expeditious conduct of the arbitration. It [Page113:] should also be remembered that under national laws, a domestic court may in certain circumstances order the removal of an arbitrator, on grounds of misconduct or unnecessary delay.38 An application for such an order should, of course, be made by the aggrieved party.

A somewhat unique provision is contained in the AAA Rules in a case where one of the arbitrators in a three-member tribunal, for one reason or another, fails or refuses to participate in the arbitration proceedings. Article 11 of the Rules empowers the other two arbitrators to decide whether or not they should proceed in the absence of the third arbitrator. But in reaching this decision they must take into consideration the stage of the arbitration, or the reason for non-participation by the third arbitrator. However a substitute arbitrator may be appointed by the administrator if they decide not to proceed in the absence of the third arbitrator.

Damages

It is normally said that damages are not recoverable from an arbitrator on the basis of the "immunity" enjoyed by the "judicial nature" of his arbitral duties. However an arbitrator is not a judge, still less is an arbitral tribunal a court. The essentially private nature of the arrangement is that, for a fee, parties to a dispute confer authority on another person or a body to settle the dispute. While it is fairly well established that such a person when acting in a judicial capacity enjoys immunity from suits arising from his negligence,39 there seems to be no reason why an arbitrator should not enjoy the same immunity in cases of delay.40

It is evident from the rules of international arbitration institutions that some measure of immunity is desirable. This is because such immunity enhances the arbitrator's ability to discharge his functions fearlessly and impartially. However it is also conceded that arbitrators should not be protected against fraudulent or corrupt acts or other cases of deliberate misconduct.

Perhaps a more certain remedy is the suggestion by some commentators that where parties have suffered a loss as a result of the arbitrator's default they may either refuse to pay his remuneration or proceed to reduce the agreed sum by the proportion of their loss. It may be contended on this basis that, provided an award is made, it will be difficult for parties to resist the arbitrator's claims for remuneration, as this obligation under "the contract" is discharged.41 If, on the other hand, the arbitrator is justifiably removed for failing to use reasonable dispatch in carrying out his duties, the point that he is not entitled to remuneration seems too obvious to merit detailed discussion.

Injunction

The question here is whether the option of an injunction is exercisable during the course of the arbitral proceedings. It should be quickly pointed out that most of the rules are silent on this issue, not because the question is unimportant but because it is inextricably bound up with public policy and considerations as determined by different legal systems. Some countries are quite permissive as to the extent to which domestic courts control arbitrators. For example, under Section 24(1) of the U.K. Arbitration Act 1950 the court is empowered to restrain an arbitrator from proceedings with the arbitration where by reason of his relation towards any other party to the agreement or of his convection with the subject matter he might not be capable of impartiality. Aside from this statutory power, courts in common law jurisdictions have always asserted an inherent power of intervention. The validity of such an assertion in the light of modern arbitration legislation is indeed suspect, although a recent dictum in England suggests that a limited power to grant relief by injunction is still retained by the court.42

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The prevalent trend in most jurisdictions, however, favours minimum judicial interference in arbitral proceedings. The UNCITRAL Model Law, for instance, which has been adopted by many countries, including Nigeria, provides in its Article 5 that the intervention of a court in arbitral matters is limited to the statutory instances provided under it. Given this background, it seems more in tune with the legislative policy that complaints against an arbitrator arising during proceedings should be settled in accordance with the applicable rules freely chosen by the parties.

1
Or to a Commission (See Article 57 of ICSID Convention).

2
Article 57 states: "A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of qualities required by paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV."

3
Article 37(2) ICSID Convention.

4
Article 39.

5
See particularly Rule 9, ICSID Rules.

6
Rule 6(2) ICSID Rules. For other safeguards against partiality see Rule 1(4) which disqualifies a previous appointee from a new tribunal.

7
Article 2(7) ICC Rules (1988).

8
Article 9 UNCITRAL Arbitration Rules (1977).

9
Some institutional rules expressly require that parties should nominate independent arbitrators. See e.g. Article 2(7) ICC Rules. Others like ICSID Rules are silent on the point. In such cases it would seem unobjectionable to nominate arbitrators with which some previous link exists, so long as this is adequately disclosed.

10
See L. Craig, W. Park and J. Paulsson, International Chamber of Commerce Arbitration (1984), Part III, p. 44.

11
See e.g. Article 12(2) UNCITRAL Model Law and Section 24(1) U.K. Arbitration Act 1950; see also Article 8, AAA Rules (1991).

12
Russell on Arbitration (twentieth ed. 1982), p. 143.

13
Or more commonly of a company which is a subsidiary of one of the parties or within a group of companies to which one of the parties belongs. See Burkett Sharp & Co. v. Eastcheap Dried Fruit Co. and Perera [1962] 1 Lloyds Rep., p. 267 and Veritas Shipping Corporation v. Anglo Canadian Cement Ltd [1966] 1 Lloyds Rep., p. 76.

14
Edinburgh Magistrates v. Lownie [1903] 5F (Ct of Sen) 711.

15
Bright v. River Plate Construction Co. Ltd [1900] 2 Ch. 835.

16
See Fertilizer Corporation of India v. IDI Management Inc . 517 F. Supp. 948 (S.D. Ohio 1981).

17
See Mustill and Boyd, Commercial Arbitration (2nd ed., 1989), p. 252.

18
Quoted in J. Paulsson et al., op. cit., Part III, p. 38.

19
Article 8 of the AAA Rules of 1991.

20
Article 9 of the AAA Rules.

21
(1855) 2 Macq. 1 at p. 3.

22
Rule 9(4).

23
i.e. The Court of the International Chamber of Commerce, see Article 2(9). However where the challenge is made before the confirmation of the arbitration appointment, the Internal Rules of the Court provide that a committee may determine the validity of the challenge.

24
See Article 13 UNCITRAL Model Law.

25
i.e. as in FIDIC contracts.

26
[1982] 2 Lloyds Rep., p. 425 see especially p. 427.

27
Such as Article 26 of the ICC Rules which requires the arbitrator to make every effort to ensure that an award is enforceable at law.

28
A recent example of such proceedings is the Iran U.S. Claims Tribunals set up under the Algiers Accord 1981 to resolve a multitude of related and unrelated cases.

29
It has been held that failure to disclose in such circumstances was sufficient ground to nullify an AAA arbitration award. See Rogers v. Scheming Corporation 165 F. Supp. 295.

30
Article 2(13) ICC Rules.

31
See J. Paulsson et al. Part III, p. 41.

32
Article 11 UNCITRAL Rules.

33
e.g. Article 13(2) UNCITRAL Rules.

34
Rules 7, 8 and 9 ICSID Rules.

35
See Article 6 of AAA Rules.

36
Article 10 of AAA Rules.

37
In such circumstances all the arbitrators may be replaced.

38
See Sections 13(3) and 23 U.K. Arbitration Act 1950 and Article 14(1) UNCITRAL Model Law.

39
For an extensive discussion of the common law authorities, see Mustill & Boyd, op. cit., pp. 224-225, and Russell, op. cit., pp. 119-120.

40
See Mustill & Boyd, op. cit., p. 231. However, this is contested by Russell, p. 121.

41
See Mustill & Boyd, op. cit., p. 519.

42
Bremer Vulkan Schuffbau und Maschinen Fabnk v. South Indian Shipping Corporation [1980] 1 Lloyds Rep., p. 255. Happily this position is gradually changing especially with regard to the U.K. See also the Draft Arbitration Bill of England and Wales, and the latest judgment of the Court of Appeal in England in the case of Harbour Assurances Co. Ltd (U.K.) v. Kansa Insurance Co. Ltd (1993) QB p. 701 (CA).