Mr Chairman, Ladies and Gentlemen, Dear Colleagues,

First of all I should like to extend my warmest thanks to the ICC, the AAA and ICSID who cooperated so propitiously in organising this excellent 12th colloquium on "The Status of the Arbitrator". This cooperation which has permitted a fruitful exchange of experiences and a deeper study of the problems is to be congratulated.

One might have thought that the "status of the arbitrator" had revealed all its secrets long ago. However, the subject - appropriately revisited today - has highlighted, both in the written presentations and in the discussions, the fact that many tricky questions deserve further study and analysis. But from another point of view, Professor Fouchard has no grounds for dissatisfaction, since the "12 elementary principles" issued by his illustrious Commission, which do not fall far short of providing us with a "truly universal status for arbitrators", seem to me to be broadly accepted by this learned assembly.

I do not intend here either to summarise the papers presented, to try to evaluate your discussions, or to draw up a synthesis of them. The fruits of this colloquium are too abundant for me to take that risk. What is more, I shall, with respect, restrict myself to a few personal remarks, which will show how much I have benefited from your works.

Alain Plantey once wrote that arbitration is the "product of empiricism and necessity" (AFDI, 1990). And today James Carter adds that a study of arbitration based on its experience and its needs is the fountain-head for rules whose validity and usefulness can only be borne out if they respond perfectly to the criterion of reasonableness. And I sincerely believe that this is what counts and this statement covers everything.

Indeed, in order to understand the present situation of the "status of the arbitrator" and to assess how much it can be improved in the light of experience and the needs that have developed, we have to be in possession of certain keys.

The first of these is to bear in mind the fact that commercial arbitration remains an example of the withdrawal of a private dispute from its natural judge: the judicial power of a sovereign state. Although this judicial power accords private persons substantial freedom to render justice in its stead, this freedom is nonetheless supervised freedom. The arbitrator is accordingly subject to duties, to control and to responsibilities. This first key opens the door to the explanation of most of the obligations attributed to arbitrators, and which make their status comparable to that of national judges.

The second key is derived from a very simple finding. The fact that the state authorises a private form of dispute settlement by an arbitrator is not enough. In addition, parties must in fact wish to make use of this right to have their case decided by an arbitrator. In other words, there has to be - and this is a truism - an express intention by the parties. The parties must decide to mandate private individuals to settle their dispute.

Thus, this simple starting point confers two characteristics on arbitration: the fact that it has a contractual basis (created by the parties) and judicial effects (created by the arbitrator).

Likewise, from this simple starting point we are able to understand the corpus of rules - both experimental and tried and tested - constituting the status of the arbitrator. And it is on this basis that we are able to analyse, as [Page131:] Professor Fouchard has done so clearly, the various legal relationships formed between the arbitrator and the parties, or between the arbitrator and the arbitration institution, or indeed the legal relationship between the arbitrators themselves.

You have studied the arbitrator's rights and obligations at both the legal and ethical levels, with all your knowledge and with all your conscience.

The arbitrator acts in several "capacities" and actually portrays an original - not to say singular - character, using three masks to act out his role on the arbitral stage. Depending on which of these three masks he dons, he is required to behave in a certain way. The overall reconciliation or orderly arrangement of all these types of conduct is all the more difficult in that, what is more, there are several types of arbitration and several categories of arbitrators, depending how they are appointed.

An approach devoid of any preconception would hence make the arbitrator into a threefold character:

(i) just like a judge in the ordinary sense of the term, the arbitrator has the task of settling a dispute, which means that he should be subject to the juridico-ethical status applicable to judges, mutatis mutandis;

(ii) but unlike judges as such, who are imposed on the parties, the arbitrator for his part is chosen (either by the parties, or by an external institution), which poses the delicate problem of the relationship between the arbitrator and the parties;

(iii) however, unlike judges as such, who apply the law, the arbitrator must constantly be ready to listen to the parties and remain available for any negotiated settlement which, although he may not suggest it, he can at least facilitate.

From these three qualities emerge different profiles, giving a final integrated blueprint divided into lines whose outlines are still blurred.

You have thus successively approached this special character, the arbitrator, basically from three angles:

- the arbitrator as a judge;

- the arbitrator as a chosen judge;

- the arbitrator as a judge who is either the witness or proponent of an agreed settlement between the parties.

But it must not be forgotten that the arbitrator, like any judge, is a "human-being". He is made of flesh and blood, just like an ordinary judge. Therefore, from the outset, ethical questions relating to the nature of mankind must be disregarded, in that they do not apply to arbitrators alone. These questions that are common to both arbitrators and judges confront us with a quasi-metaphysical question, that of the impartiality of a person judging other people. Like any person, the arbitrator has a conscience of his own which is linked to a certain Weltanschauung. He cannot detach himself from all the links - cultural or other - that may affect his views, whether consciously or unconsciously. Thus recourse to arbitration is as much a bet on impartiality as any recourse to human judgment. In short, the arbitrator is not a rarefied being, drifting, with no origins, and no ethical, cultural, social or other links.

These are the problems of arbitral neutrality. There are rules or safety barriers. But there is no automatic clear and square solution to such problems. The successes of arbitration are clear evidence, however, that at the end of the day this institution copes with such problems fairly well. These do not exempt us from the need for sound elementary vigilance, any more than they call for an unhealthy excess of suspicion. As regards the question of neutrality, independence and impartiality, there would be nothing more disastrous for arbitration than constant resort to investigations into ascribed or presumed intentions.

The arbitrator cannot be either an "arbitrator-counsel", an "arbitrator-party" or an "arbitrator-advocate". He takes a stand not on behalf of a party but for a decision that he himself considers to be just.

But the arbitrator does not only wear one mask - the mask of the judge - for correctly[Page132:] interpreting the role of independence and impartiality within the bounds of human nature. He also wears a second mask - that of a judge that the parties have chosen - which makes him very different from a judge as such.

Since it is accepted that the freedom to choose arbitrators is totally unrestricted, this consideration has inevitable consequences for the parties' actual image of what constitutes "acceptable behaviour" by such arbitrators, nominated by them in this unrestricted fashion. Accordingly, this problem has to be approached with realism and humility at one and the same time.

The freedom to choose the arbitrator - a key factor - and the confidence placed in him by the parties that this freedom of choice implies, must slightly colour the issue of the arbitrator's ethical practice. He is not solely a judge. He is a judge chosen on an intuitus personae basis. Hence, if the picture of the arbitrator's rights and duties is to be illuminated in appropriate tones and colours, this new element must be taken into account. In particular this poses the question of the arbitrator's legal and ethical relationship, both towards the parties (including the one who chose him) and towards his colleagues on the tribunal.

Conveniently, a distinction is drawn between arbitrators appointed "ex parte" and arbitrators appointed "impartially", as it is termed. But the language is often misleading. Indeed it is fairly significant to note that the parties, or the arbitrators nominated by them, or a third party institution, may choose a third arbitrator that they sometimes refer to as "neutral", for want of a better definition. This kind of language certainly misrepresents what seems to be a clearly accepted fact: that the first two arbitrators are not or cannot be totally neutral. Moreover, certain people have even ventured to call them more directly "non-neutral party-appointed arbitrators".

If the arbitrator now puts on the third theatrical mask, turning himself into the catalyst of a negotiated settlement between the parties, we obtain a different blueprint of his rights and duties.

The arbitrator may in fact experience three different situations, where judges only experience one. These are as follows:

(i) attempted conciliation, that is displayed and wished for, and in consequence comprises a proposed conciliation;

(ii) the arbitration developing towards an agreement may lead to an "award by consent" rendered by the arbitral tribunal, and lastly;

(iii) the award pure and simple where no agreement is possible: an award which will rule on the law and the facts, which will be enforceable as an award and which will cease to have anything in common with mediation of any sort.

As I have said, the arbitrator is a person with three faces. In Roman mythology, the god Janus with two heads facing in opposite directions, was the god of the Gates of Latium, who - like them - had two faces. In our world he symbolises the radical irreconcilability of two contradictory types of behaviour, as represented, inter alia, by the modern character, Dr Jeckyll and Mr Hyde. Very fortunately, the profile of the international arbitrator seems to have avoided this imagery. His function may be seen through a three-sided prism, showing not only the great wealth deriving from his different roles, but also their compatibility. May our modern world, ever in search of benevolent myths that provide security, prolong the reign of today's triple-faced god-arbitrator - and make it prosper.

I shall conclude with several remarks.

(1) What is striking in the status of the arbitrator, which still remains to be improved, is the fact that the obligations of this character - who, if not strange, is at least more complex than one would have imagined or said, are all summarised, in their various forms, in compliance with the fundamental trilogy of international arbitration:

- equality of the parties;

- respect of the rights of defence;

- the institution of a procedure that is fair in every respect.

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(2) What is particularly noticeable in the rules that constitute what we have agreed to term the "status of the arbitrator", which have been defined by practice, need and reasonableness, is the fact that the arbitrator's moral and legal obligations are present in every single phase of the arbitration procedure. These duties signpost the arbitral process from beginning to end, from the choice of the arbitrator up to the final award and even beyond; obligations linked to the arbitrator's independence and his impartiality, with, as the key, the ultimate sanction of challenge during the procedure (Bola Ajibola's communication) or the implication of his liability at the end of the procedure (John Townsend's communication).

(3) What is also striking in the status of the arbitrator, is the constant - or I might even say obsessive - search for correct appearances. "Arbitrators must not only be fair, they must be seen to be fair", wrote my friend Bola Ajibola in his excellent study. This is correct. But why? Because the arbitrator is not a person who is imposed on the parties, like a judge is. He is chosen by one of them. This quality which reflects an intuitu personae choice by one of the parties, requires the arbitrator to be constantly on the watch to avoid being challenged by the other party. The concern for appearances is therefore essential. Arbitration thus possesses a particular feature so far as form and appearances are concerned, which contrasts with the very essence of arbitration, which enjoys greater liberty from formalism than court procedure does.

The judge benefits from a presumption - in principle already established - of independence and impartiality. The arbitrator, on the other hand, is obliged in every case to build up confidence, to win over the parties' confidence and especially the confidence of the party who did not nominate him.

(4) What is interesting to note is that the "status of the arbitrator" has been codified, has been enhanced, and will be enhanced still further in the future, under the influence of experience and needs, which recommend that reasonable solutions should be taken into account.

Let us stop for a moment to consider this term "reasonable", which I should like to say has become a concept that is widely used in both public international law and private international law and in particular in the law of commercial arbitration. In modern times it has become a widespread technique for creating domestic or international legal norms. And, thanks to its elasticity, its flexibility, and the fairness that it involves, it contains within it considerable resources for responding to normative needs.

(5) But what has struck me the most in this colloquium, which dealt in detail with all the problems of the status of the arbitrator, is the fact that the arbitrator's very onerous duties, which are even more onerous than the duties of the national judge, are not counterbalanced by arbitrators' rights. So far as the issue of the rights of the arbitrator is concerned, I have the impression that the study is not yet very far advanced, despite certain conceptual beginnings noted here and there in the papers presented.

This circumstance can be explained. Historically, it was only by exhibiting the whole range of safeguards that it could offer, in other words the whole gamut of obligations of the arbitrator - a person who was not very popular at that time - that commercial arbitration was able to develop and become accepted as a private method of settling disputes, both by the national authorities and by parties. Hence it was essential to emphasize the obligations rather than claiming rights for the arbitrator.

But today, through its own merits, arbitration has compelled recognition as an essential feature of international trade. Arbitration has come of age. And since this is the case, the legal arsenal of the arbitrator's duties, which is now fairly clearly drawn, should be completed by a set of arbitrator's rights.

Today it still seems almost unpopular to claim these rights. A certain unjustified modesty is felt in asserting them. And yet, these rights should be claimed in the name of the duties themselves. For the arbitrator's independence and impartiality can only themselves be effective provided their rigorous application does not expose the arbitrator to abusive claims, and does not detract from the respect that the losing party owes him as much as the winner does.

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In consequence, it is necessary to accord rights to arbitrators, and in particular a right to adequate protection. Otherwise they are likely to run the risk of an increase in the number of abusive challenges, excessive criticisms or processes based on ill-founded intent and suspicion. In brief, arbitrators must be equipped to defend their honour and professionalism if they are unjustly accused by parties who sometimes have the reflex action of bad losers when they fail to win.

If an arbitrator is sued, he needs to be adequately protected against abuses. I am delighted to note the fact that certain common law countries have devised and implemented a type of legal or judicial immunity for arbitrators in relation to all acts carried out in the exercise of their arbitral duties. I refer to Alan Redfern's excellent study. I am delighted to learn that following the example of the AAA, as Mr Redfern pointed out, and ICSID as Mr Parra stated, the ICC is considering studying the ways and means of defending an arbitrator where court proceedings are instigated against him, thus enhancing its Rules with new provisions.

This said, in reality there are very few rights peculiar to arbitrators. Indeed the only right that exists is the right to fees. What is more, as Messrs Fouchard and Schwartz remarked, this is not absolute, and is subject to other duties. In fact, arbitrators do not claim the other rights merely for their own benefit, but for discharging their duty of fulfilling their task appropriately. The same applies to the arbitrator's right to conduct the procedure, to investigate the case, or his right to deliver a dissenting opinion (within the limits of what is reasonable), or even his right to refuse an arbitration so as to safeguard his professional integrity.

Ladies and Gentlemen, Dear Colleagues,

Finally we are living in auspicious times so far as commercial arbitration is concerned. Through the concerted benevolence of the AAA, the ICC and ICSID, arbitration has become so virtuous that more emphasis is placed on strengthening the arbitrator's duties than on the recognition of certain rights. In conclusion, the fact that these institutional arbitration organisations urge us to practices that are so devoted to the cause of the parties and international trade is greatly to their credit.