There is to our knowledge no sociological data-specific cases on the liability of international arbitrators-permitting us to assert that the topic addressed in this article is relevant. There are various reasons for this.

First, it is in our view evident that international arbitrators must-and very much do-care about their reputation and prestige. To put it bluntly, should an international arbitrator be sued successfully by one of the parties to a dispute, it is very likely that this arbitrator would be excluded from the international arbitration business.

Second, our research has revealed that the only cases concerning the liability of arbitrators have been domestic. However, we have found no precedent indicating that the rules set out in these cases could somehow be applied in international settings. However, to the extent that the issue of an arbitrator's liability is governed by basic rules of contract law (droit des obligations),1 one can explore and elaborate on the different potential legal grounds that could be relied upon by parties to an arbitration that would like to sue an arbitrator.

At this point, the following questions arise. Do we want to draw a legal map for losing parties that are looking to sue the arbitrator who rendered a decision adverse to their interests? Are we not under a duty to refuse to write papers that could endanger the integrity and fate of international arbitration? In our view, we should therefore only address the topic of liability of international arbitrators in order to send a strong message of caution to losing parties that, put simply, international arbitrators should only be liable in very exceptional, extraordinary circumstances.

The above propositions are not motivated by a sectarian, partisan defence of the international arbitrators' community. Rather, they flow from the principle that all adjudicators need to have sufficient calm to adjudicate disputes that have been entrusted to them. Accordingly, the guiding proposition of these observations is this: the integrity of international arbitration must be preserved by limiting as far as possible party claims against arbitrators based on adverse awards.

Lack of calm when trying to resolve a dispute may affect an international arbitrator's impartiality. No adjudicator should examine a case with the feeling-let alone under the threat-that one of the parties could eventually sue. This is the reason why, in various legal systems, references have been made to a so-called "immunity of arbitrators".2 The rationale behind such an immunity is that all those fulfilling a jurisdictional mission, including those private persons called "arbitrators", should be protected by immunity in order that they may resolve a dispute calmly and, hence, impartially.3

However, the word "immunity" is ambiguous. It seems that, at the first stage in the evolution of this issue, "immunity" implied a lack of responsibility. In other words, the arbitrator would never be liable to the parties. This is still what Article 21 of the Washington Convention provides today.4 It was traditionally also the position of US and UK law (in the latter case prior to the Arbitration Act 1996).5 From a totally opposite perspective, the word "immunity" was referred to in some old French decisions as grounds for holding that arbitrators should have little or no immunity.6

The positions described above reflect two different philosophical conceptions of the mission of the arbitrator. Those defending the idea of "immunity" consider that an arbitrator is a judge.7 This is the conception that still exists in many Latin American countries. Conversely, those arguing against providing any immunity in favour of arbitrators regard them as simple contractors.8 However, this old clash between different conceptions of the arbitrator's mission is irrelevant today when defining whether and to what extent an arbitrator could be liable to the parties.

Indeed, there seems to be a general consensus today that there is no absolute immunity in favour of arbitrators and that arbitrators should be liable to the parties for fraud (fraude) and intentional wrongdoing (dol). This consensus is expressed in two ways. First, from a negative perspective, Section 29 of the UK Arbitration Act 19969 states that arbitrators enjoy immunity unless their bad faith is established. Second, from an affirmative perspective, Spanish law,10 for example, provides that arbitrators are liable in some limited cases such as fraud, wilful misconduct and intentional wrongdoing.

There also seems to be consensus on the point that the mere negligence of an arbitrator is covered by immunity, meaning that arbitrators are not liable to the parties for mere negligence.

Today's academic debate only pertains to the question whether gross negligence (faute lourde) is covered by the arbitrator's immunity. In his treatise on international commercial arbitration, Gary Born,11 addressing this issue in abstracto (or as a policy manifesto), asserts that gross negligence should be covered by immunity and that arbitrators should not be liable for gross negligence. From a theoretical standpoint, Born's opinion may be right in common law jurisdictions. In civil law jurisdictions, however, there is often a principle pursuant to which gross negligence (faute lourde) is legally assimilated to intentional wrongdoing (dol).12

However, we submit that the question whether gross negligence (faute lourde) is covered by the immunity of arbitrators cannot be solved in abstracto. In our view, a fact-driven, case-by-case, in concreto approach must be employed. In this context, three factual situations, among many other potential scenarios, can be illustrative.

In the first situation, an arbitrator does not comply with certain time-limits because he or she is unavailable. It is not absolutely clear to us that this situation could be characterized as gross negligence. In most cases, delays in the proceedings may be produced by different, concurrent causes. However, if the delay can be characterized as gross negligence, immunity should not be granted. A lack of availability pertains to the qualities required of the adjudicator and not to the mission of adjudication. In addition, this situation could give rise to a denial of justice that should not be condoned.

The second situation is one where the arbitrator incorrectly applies the applicable law. This could be a gross negligence situation. However, it clearly pertains to the mission of adjudication. If the parties could successfully sue an arbitrator for an incorrect application of the applicable law, arbitrators might lose the calm and impartiality needed to accomplish their mission. It therefore seems to us that such a situation should be covered by immunity. In other words, arbitrators should not be liable to parties for incorrectly applying the applicable law. A different, more problematic situation would be one in which the arbitrator, in spite of specific pleadings from all parties on a point of law, simply does not apply it at all.

The third and final situation is one where an arbitrator resigns without cause. There are two reasons for concluding that this situation-which could amount to gross negligence-should not be covered by immunity. First, the situation does not pertain to the mission of adjudication. Second, the situation could give rise to a denial of justice.

***

In conclusion, what is the proper balance between the immunity and liability of arbitrators? We submit-using a negative approach-that the general rule should provide for the immunity of arbitrators and that liability should only arise in three exceptional, extraordinary situations: (i) fraud; (ii) intentional wrongdoing; and (iii) gross negligence-especially if it results in a denial of justice, except when it pertains to the mission of adjudicating the dispute. Immunity should apply in order to guarantee the calm and impartiality needed to accomplish the jurisdictional mission, not to exempt arbitrators from fulfilling the sine qua non conditions of their office: independence, availability, applying the law chosen by the parties, and not resigning without cause.

Such a balance seems to have been struck in Section 29 of the UK Arbitration Act 1996. However, the concept of "bad faith" contained therein is ambiguous, and we therefore submit that the decision of the Paris Court of Appeal of 1 March 2011 in the Azran case strikes a better balance:13

"Whereas … the arbitrator is invested with a mission that is both contractual and judicial in nature, which he must complete with conscientiousness, independence and impartiality; whereas, acting as a judge, he enjoys a jurisdictional immunity such that he is only liable for his personal misconduct which, to be sufficient to hold him liable, must amount to wilful conduct amounting to fraud, gross negligence or a denial of justice…".

The issue, in fine, will henceforth be to identify the factual situations that could (and perhaps should) be characterized as instances of "gross negligence".

1
Clay Thomas, L'arbitre (Dalloz, 2001) pp. 705-706, para. 928.

2
E. Gaillard and J. Savage (eds.), 'Part 3: Chapter II-The Status of the Arbitrators', in Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer Law International, 1999) para. 1086; Gary B. Born, 'Chapter 12: Rights and Duties of International Arbitrators-B. Status of International Arbitrators', in International Commercial Arbitration (Kluwer Law International, 2009) pp. 1654-1657; Thomas, supra note 1, at pp. 456-457, para. 570.

3
Thomas, supra note 1, at p. 451, para. 565; Born, supra note , at pp. 1654-1655; Nigel Blackaby, Constantine Partasides, Alain Redfern and Martin Hunter, 'Powers, Duties, and Jurisdiction of an Arbitral Tribunal', in Redfern and Hunter on International Arbitration (Oxford University Press, 2009) p. 331, § 5.54.

4
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington Convention) (1965), Article 21: "[Arbitrators] shall enjoy immunity from legal process with respect to acts performed by them in the exercise of their functions, except when the Centre waives this immunity."

5
Gaillard and Savage, supra note 2, at pp. 592-593, § 1086; Born, supra note, at pp. 1654-1655.

6
Born, supra note 3, at p. 1658.

7
Id., at pp. 1598 and 1600.

8
Thomas, supra note 1, at p. 704, para. 928; Born, supra note 3, at p. 1597.

9
U K Arbitration Act 1996, Section 29: "(1) An arbitrator is not liable for anything done or omitted in the discharge or purported discharge of his functions as arbitrator unless the act or omission is shown to have been in bad faith. (2) Subsection (1) applies to an employee or agent of an arbitrator as it applies to the arbitrator himself. (3) This section does not affect any liability incurred by an arbitrator by reason of his resigning (but see section 25)."

10
David J.A. Cairns and Alejandro López Ortiz, 'Spain's Consolidated Arbitration Law', in Miguel Ángel Fernández-Ballesteros and David Arias (eds), Spain Arbitration Review / Revista del Club Español del Arbitraje 13 (Wolters Kluwer España, 2012) pp. 49-73: Arbitration Law 60/2003 (incorporating 2009 and 2011 amendments), Article 21.1: "1. Acceptance obliges the arbitrators and, where applicable, the arbitral institution to comply faithfully with their responsibilities, being, if they do not do so, liable for the damage and losses they cause by reason of bad faith, recklessness or fraud. Where the arbitration is entrusted to an arbitral institution, the injured party shall have a direct action against the institution, regardless of any actions for compensation available against the arbitrators. The arbitrators or the arbitral institutions on their behalf shall take out civil liability insurance or an equivalent guarantee, to the amount established by the corresponding regulation. State entities and arbitral systems forming part of or dependent on the public administrations are exempt from taking out this insurance or equivalent guarantee."

11
Born, supra note , at p. 1662.

12
French Court of Cassation, Commercial Division, Judgment of 3 April 1990, No. 88-14871: "gross negligence is characterized by an extremely serious behaviour bordering on wilful misconduct and indicating the inability of the debtor of the obligation to fulfil the contractual mission he had accepted." French Court of Cassation, Commercial Division, Judgment of 27 September 2011, No. 10-21362.

13
Paris Court of Appeal, Azran v. Schirer, Leclercq, Nahum and the company SAS Consultaudit, Judgment of 1 March 2011, No. 09/22701.