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( Source of the document: ICC Digital Library )
Independence and impartiality of arbitrators are fundamental principles of commercial arbitration, recognized universally, although with some differences.2 In order to ensure that justice is done and is seen to be done, it is essential not only that all members of an arbitral tribunal are impartial and independent, but also that they are perceived as being so. An arbitrator may be challenged, and possibly dismissed, if circumstances exist or arise that cast 'justifiable doubts' over his or her impartiality or independence.3
Independence and impartiality are two sides of the same coin. In the third edition of their celebrated treatise, Redfern and Hunter distinguished them as follows:4
An impartial arbitrator, by definition, is one who is not biased in favour of, or prejudiced against, a particular party or its case, while an independent arbitrator is one who has no close relationship - financial, professional, or personal - with a party or its counsel.
For the sake of simplicity, the term 'neutrality' can be used to cover both concepts.5
Impartiality is not only difficult to define as a concept but also hard to verify. As a state of mind, impartiality is not usually detectable at the outset of an arbitration, unless the prospective arbitrator has strongly expressed a position on a specific issue or subject. Human beings [Page46:] are open to all sorts of influences when making decisions - culture, ethical and political convictions, background and experience. Also, the methods of analysis and research relied upon may have an impact, as may the individual's capacity to exercise the self-control necessary to overcome personal preferences and standpoints. Impartiality is not easy to predict but tends rather to come to light through its concrete manifestations.
Independence, on the other hand, is more susceptible to objective assessment. It concerns observable facts, which lend themselves better to disclosure. Independence is often linked with conflicts of interest. A conflict of interest may arise when an individual performs a function or an appointment in one context and his or her actions have favourable consequences for himself/herself or unfavourable consequences for others in another context. However, independence seems broader than conflict of interest as thus defined: it does not necessarily presuppose conflicting interests in different situations; the presence of a fact that potentially affects the appearance of independence in the eyes of the parties is sufficient.6
Independence, impartiality, neutrality and, more generally, ethics are not static or uniform concepts. They have no fixed boundaries but may vary in time and from one culture or legal system to another. For instance, certain behaviour in the workplace currently considered unethical may not have been considered unethical a few years ago and may not be considered unethical outside the workplace.7 As practitioners will be aware, these concepts and their significance are affected by the cultural and legal circumstances in which they develop or are applied. In many jurisdictions (although not all) the neutrality of a judge is a principle of public policy and cannot be waived or negotiated by the parties. The notion of a non-neutral arbitrator is accepted in some jurisdictions,8 but as a matter of principle unacceptable in others and, today, also in the international community.
In England, the 1996 Arbitration Act made impartiality a mandatory requirement, but left out the requirement of independence. The reason for this lies in the history and practice of arbitration in England, where there is a tradition of non-legally trained arbitrators. In the City of London, such arbitrators are common in the shipping, insurance and reinsurance industries, and they lack independence because, as merchants, they maintain regular relations with the major players in those industries. It was therefore felt acceptable to have impartial arbitrators who could be dependent. Elsewhere, under the influence of different practices and cultures, this might be considered unacceptable. Likewise, what is considered acceptable or unacceptable today may in the past have been, or in the future be, considered otherwise.
How can the parties to an arbitration, or indeed the arbitral institution, know whether or not a potential or actual arbitrator is neutral vis-à-vis the parties? The answer from many arbitration statutes, arbitral institutions and some professional codes of ethics is to make arbitrators subject to a continuing obligation of disclosure throughout the arbitral proceedings. Initial disclosures inevitably focus more on items linked to independence, i.e. facts, circumstances and relationships, while subjective bias or prejudice vis-à-vis the parties or the issues in dispute might emerge only in the course of the proceedings. Opinions differ as to the extent of such disclosure, which, like the concept of neutrality itself, is influenced by an arbitrator's culture, background, practice and self-awareness.
It is not easy for an arbitrator to know what to disclose and what not to disclose. It is the arbitrator who is ultimately responsible for assessing the relevance of the facts to be disclosed. Institutions and the International Bar Association (IBA)9 recommend above all that disclosures should be accurate. Any doubt over whether or not something should be disclosed should be resolved in favour of disclosure. Parties, as well as the institution, will appreciate such accuracy and tend not to question borderline situations which, if they emerged only later, could undermine confidence in the arbitrator and the process, and even cause a party to challenge the arbitrator in question. At the end of the day, what is disclosed will very much depend on the individual's personal attitude and approach. Clearly, too much disclosure of facts could be as bad as too little, as it could lead to interminable proceedings and infelicitous challenges. A balance is not always easy to find.
3. Need for uniformity
There can be no doubt that the harmonization of good practices regarding the neutrality of arbitrators will create greater certainty and predictability in the rules of the game, which in turn will give arbitration greater legitimacy and increase practitioners' and users' trust in the process.
It was to this end that, back in 2004, the IBA produced its Guidelines on Conflicts of Interest in International Arbitration, which were revised in 2014. In these Guidelines, the IBA lists the most frequent situations that might create a conflict of interest for an arbitrator. They are classified as admissible, acceptable (tacitly or explicitly) and not acceptable/non-waivable. By setting a number of general standards of independence and disclosure to govern the appointment of arbitrators, the IBA has created an effective framework for ensuring the neutrality of arbitration in international cases.
Some arbitral institutions have taken similar initiatives by issuing codes of ethics or other rules applicable to individuals who act as arbitrators under their auspices.10
In this context, it is worth mentioning the action undertaken by the Milan-based Institute for the Promotion of Arbitration and Mediation in the Mediterranean (ISPRAMED) since 2009. ISPRAMED has collected data on the impartiality and independence of arbitrators from seven arbitration centres in the Mediterranean area,11 with a view to identifying the standards those centres generally apply to preserve the neutrality of arbitrators in the cases they manage. It has led to a report that represents a common view of what is considered good administration with respect to the independence and impartiality of arbitrators. Some of the common principles and practices have been identified by the seven institutions involved as having a certain binding character, and the centres undertake to follow those principles in their everyday activity in order to ensure the application of international standards, regardless of which institution's rules apply. In addition to providing guidance and help to the institutions when deciding on cases in which doubts have been raised over an arbitrator's neutrality, these principles are also helpful to users, who are able to know in advance the stance that has been taken by the centres on critical issues.
4. How a universal principle can take on different shades …
In practice, guidelines, rules and uniform principles such as those discussed above are also influenced by the local market in which they are applied. Although universally accepted and used, they are interpreted by scholars and practitioners belonging to diverse procedural traditions, which can lead to disparities. There are jurisdictions where the principle of arbitrator neutrality is firmly rooted, whereas in others it has yet to be truly affirmed and accepted. In the latter, messages such as those delivered by the IBA play an important educative role.
In complex, multicultural societies such as those we know today the elaboration of common, minimal ethical standards may sound like an illusion. It is a fact of life that differences will emerge when we try to define principles such as independence and impartiality, or when we [Page49:] have to decide on the scope and degree of disclosure, or when we apply the IBA Guidelines or other codes of ethics. This is not surprising and all part of the game.
What I do find surprising, however, after years of practice as both an administrator of arbitral proceedings and as an arbitrator, is the fact that the same principle can be applied by the same individual in the same jurisdiction but in different ways, depending on the role that individual plays in a case.
International commercial arbitration is today dominated more than ever by lawyers. Moreover, the world of arbitration is known for being a closed community.12 It is therefore inevitable that lawyers will sometimes act as appointers of arbitrators and at other times as arbitrators. In a closed circle such as this, where players switch between functions,13 conflicts of interest and lack of neutrality, whether apparent or real, are frequent. Of course, we all know that the interests at stake may be considerable, leading practitioners to adapt principles to the specific needs of the case. This, once again, is probably part of the game. However, while I can understand that principles may need to be applied differently in different places and at different times, it is neither acceptable nor justifiable for the same individual to take different approaches (sometimes even simultaneously...) to the same concept.
One's personal idea of independence and impartiality - whether liberal or severe is immaterial for present purposes - may be influenced by one's background, the legal system one belongs to and one's culture, but it should under no circumstances be influenced by the role one plays in a case. No matter whether one acts as arbitrator or counsel, one's understanding of neutrality should not be changeable. Sadly, this does happen. While it may not result in as many as fifty shades of neutrality,14 there are certainly too many shades, when one shade is all an individual should display.
In this short contribution, my intention is not to define what is ethical or not ethical, acceptable or unacceptable, nor to suggest how the principles described above should be applied, but rather to note what appears to be the inconsistent behaviour of some professionals worldwide, which does no credit to arbitration.
5. … depending on the role played by the individual
Let me make a few preliminary remarks.
First of all, the opinions expressed in this article are based on twenty-five years of observing not only the domestic market in Italy, but also the international arbitration community, and they concern commercial arbitration but not investor-state arbitration.
Secondly, generalization is unavoidable. Of course, my comments do not concern all players, and probably not even a majority of players. Whether the practitioners they do concern represent a large part of the arbitration community is difficult to say. Readers will be able to judge from their own experience and practice whether and to what extent my comments are confirmed.
Thirdly, the fact that individuals apply the same principle differently depending on the role they play does not mean that they do not act fairly or will not be fully independent and impartial. Differing standards of interpretation and application do not necessarily imply that an individual is not neutral. An arbitrator who does not disclose everything does not necessarily lack impartiality or independence. A party-appointed arbitrator, although closer to the position of the appointing party, may very well be objectively neutral and act in an impartial manner throughout the proceedings. Arbitrators care about the respect of their peers, their reputation and the appreciation of their ability and integrity,15 and those 'sitting on three-member tribunals have far more to gain from demonstrating intellectual integrity to each other (thus enhancing positive references for future cases) than in urging disregard of the right result'.16 The reason for minimal disclosure may be simply to secure an appointment. This may not be a 'politically correct' thing to say, but it is my impression.
Lastly, for the sake of simplicity, I will sometimes use the expressions 'party's arbitrator' (to refer to the arbitrator appointed by that party) and 'not fully neutral' (or 'less than 100% neutral'), although I admit that they are contradictions in terms and generally to be avoided.
Having said all that, the way a professional applies the principle of neutrality often takes on different shades depending on whether the professional acts as counsel or arbitrator and, when acting as counsel, depending on the role played by the counsel (claimant's counsel appointing an arbitrator, respondent's counsel reacting to claimant's appointment of an arbitrator, or counsel evaluating the chair/sole arbitrator).
Counsel's ultimate goal, like the parties they represent, is to win the case. Each side will want to be sure that the arbitrator it puts forward (and the presiding arbitrator, if possible) is free of set ideas that would adversely affect its case. That goal and the misplaced pressure exerted by parties on their counsel influences the selection of arbitrators. As stated by Paulsson:17
The result is speculation about ways and means to shape a favourable tribunal, or at least to avoid a tribunal favourable to the other side - which is logically assumed to be speculating with the same fervour, and toward the same end.
To realize their goal, parties tend to appoint an arbitrator who is not only competent, reliable, experienced and respectable, but also someone they know and trust and is close to them. Parties need to be aware that too close a relationship - provided that all relevant circumstances have been duly and fully disclosed - may cause the arbitrator to be removed or confirmation of the arbitrator to be withheld. The problem will be to find the right balance between being close but not too close.
It is true that the risks arising from too great a proximity between the arbitrator and the appointing party could be avoided simply by forbidding the practice of unilateral appointments, as suggested by Paulsson in his Miami inaugural lecture, and by wholly or partly excluding the parties' participation in the constitution of the tribunal. However, we all know that unilateral appointments and the right of the parties to appoint the arbitral tribunal are expressions of party autonomy and reflect the contractual nature of arbitration. It seems unrealistic to exclude unilateral appointment as this would undermine users' trust. They would be denied the opportunity to appoint a member of the tribunal whom they can rely on to monitor the integrity of the procedure and who would avoid ending up with a tribunal favourable to the other side. Therefore, counsel have an interest in selecting someone close to their client's position, but must be realistic in doing so. How they proceed and the attitude they adopt towards neutrality and disclosure may vary depending on the role they play in the case.
The position of the claimant's counsel may be slightly different from that of the respondent's counsel. The claimant's appointment occurs before that of the other party, which may not necessarily be an advantage. As the first, this appointment may set a direction as far as the characteristics of the tribunal are concerned, not only in relation [Page52:] to the type of arbitrator selected (e.g. an engineer in a construction case, followed by respondent's appointment of another engineer or a lawyer) but also independence and impartiality.
When selecting an arbitrator, the claimant's counsel has the possibility to carry out initial checks for potential conflicts of interest. Preliminary interviews and so-called 'beauty parades' can be used to verify not only the candidate's expertise, competence and availability but also his or her neutrality. Consequently, even before a disclosure is filed, the claimant's counsel can decide on the degree of neutrality that will be considered acceptable, e.g. someone totally neutral with no problematic disclosures and no conflicts, or someone with a potential conflict of interest but considered acceptable by the appointer. The claimant's appointment thus often reflects a certain perception of neutrality, uninfluenced by that of the other party, which will be unknown at the time of the first appointment. If, as should be the case, the claimant's counsel does not subscribe to the belief 'my nominee will help me win', then someone totally neutral will be appointed, in the hopes that the respondent will do likewise, failing which the claimant can fall back on the remedy of a challenge. The claimant's counsel should be as strict in evaluating potential conflicts of interest of his or her own arbitrators as he or she would those of the other party arbitrator.
In conclusion, the required degree of neutrality often reflects the personal expectations of the claimant's counsel and these should not change when the same individual acts elsewhere as counsel to a respondent. Yet, this is not always the case.
It sometimes happens that the same individual, when acting as counsel to a respondent, has different expectations as to the acceptable shade of neutrality, which may also be influenced by the appointment made previously by the claimant.
Upon being informed of the claimant's appointee, the respondent may react in various ways:
• If the claimant has opted for a totally neutral arbitrator, it may be risky for the respondent to go for an arbitrator who is less than 100% neutral, as this might provoke a backlash from the claimant. The respondent's counsel may in this case prefer to avoid an appointment that could be open to attack.
• If, on the other hand, the claimant has opted for an arbitrator who is not entirely neutral, the respondent has two options: either select someone fully independent and impartial (while at the same time possibly contesting the other party's arbitrator by filing a challenge), or counterbalance the claimant's action by also selecting someone not fully neutral. Such an appointment is sometimes (unwisely) considered a necessary defence against the other party's action, regardless of the appointer's personal expectations as to what is an acceptable degree of neutrality. Also, the appointer (again, unwisely) can take comfort [Page53:] from the fact that there will be little chance of a challenge: if I close my eyes to my opponent's choice of a person who is not fully neutral, I can reasonably expect my opponent to do likewise with regard to my own choice.
The two options described above reflect two different attitudes to neutrality. The first option is likely to be adopted when the respondent's counsel has high expectations in terms of transparency and demands full and detailed disclosure, while the second option is likely to be chosen by counsel who take a less strict approach, believing that full and detailed disclosures are not necessary on either side. However, counsel are not always consistent in their choice, which, rather than reflecting their personal expectations as to neutrality (which should be the same whether acting as counsel to a claimant or a respondent), may be contaminated by the position adopted by the other party. In this way, neutrality starts to take on different hues of grey.
When it comes to selecting a tribunal chair (or sole arbitrator), no matter by whom, the concern of counsel - whether representing the claimant or the respondent - will be to have someone fully neutral and equidistant from the parties. Even if their approach is liberal when dealing with party-appointed arbitrators, it is certain that they will be very strict when it comes to the chair. This difference is probably explained by the different roles some practitioners consider party-appointed arbitrators and chairs should play. For some practitioners, all of them should be fully neutral, while others consider that the level of neutrality expected of party-appointed arbitrators can be lower than that expected of tribunal chairs. It is clearly wrong to apply a double standard implying that neutrality is in some way waivable and role-dependent. Yet this is sometimes what happens.
So, in relation to counsel, we sometimes see three different shades of neutrality being applied by the same person, depending on the role they play.
When acting as arbitrators - be it as tribunal chair or co-arbitrator - professionals not infrequently take a broader approach to independence and impartiality than they would when acting as counsel. They may be very demanding of arbitrators in terms of transparency and disclosures when they act as counsel, but very guarded over disclosures or providing information when they are themselves arbitrators. As counsel, they are eager to obtain (most of the time, from the other party's arbitrator and, of course, from the chair) full details of any potential conflicts of interest; any facts, circumstances and relations (direct or indirect) with the parties (or any entity or individual related to the same group as any of the parties), their counsel and their law firms; the duration of such relations and when they began and ended; the significance of those relationships in economic terms; etc. This is only right and proper. What [Page54:] is not is their apparent disregard of the importance of such information when, as arbitrators, they must themselves decide what to disclose. The relevance of information that appeared fundamentally important when the person acted as counsel is sometimes minimized when that person acts as arbitrator. Sadly, as already mentioned, the reason for such conservativeness over disclosure may be a fear of missing what promises to be a lucrative professional opportunity if they disclose too much. Yet, it should not be thought that detailed disclosure necessarily leads to a challenge. Nor does incomplete disclosure necessarily mean that an arbitrator will be replaced or, in institutional arbitration, not be confirmed. Brevity in the information disclosed does not imply a lack of neutrality but, probably, rather reflects the extent of the interests at stake.
I do not see any major differences between co-arbitrators and chairs in their attitudes to neutrality. If the person is reluctant to provide information when approached to act as co-arbitrator, he or she is likely to adopt the same attitude when approached to act as chair. Where one does find slight differences is between the attention paid to neutrality by co-arbitrators when selecting a chair and the attention the same persons give to neutrality when acting as counsel. As co-arbitrators, they tend to be more focused on criteria other than neutrality when selecting a chair, giving priority to someone they know, who is close to them (but not too close to one or other or them and equidistant from the parties), competent and capable of chairing a tribunal and, of course, acceptable to the parties. It is the parties who are chiefly interested in the neutrality of the chair, not only because it is they who are entitled to challenge or request the removal of an arbitrator, but also because they may be more directly affected by a presiding arbitrator who is not neutral.
While it is quite normal for lawyers to oscillate between the roles of counsel and arbitrator, it is rare, although not impossible, to find such professionals acting as a party in arbitration proceedings. In such cases, as sophisticated and well informed parties, they will have similar expectations over neutrality when it comes to selecting arbitrators as they would have when acting as a party's counsel.
One of the key features of arbitration, or any adjudicative process to solve disputes, is the neutrality of the person or persons who decide the dispute. Although universally recognized principles, neutrality and its components, independence and impartiality, are interpreted in diverse ways depending on the expectations of the beholder. There is no right or wrong way; different approaches are possible, some more liberal, others more strict.
The growth of international business and its globalization, the increasing complexity of corporate relations, and the multinationality of international law firms have changed the significance of these principles, as has their application in an increasing variety of contexts. Work done by the IBA, UNCITRAL and many arbitral institutions - although not perfect - has contributed to creating a common ground of understanding and to developing best practices concerning the neutrality of the arbitrators.
But this is not enough. The prime source of uniformity in this field is personal and comes from within each individual involved in the arbitral process. One can hardly expect the application and interpretation of neutrality to be coherent if the very people who apply and interpret behave inconsistently. Of course some fluctuation is unavoidable, as these are relative concepts that can change in time and space. What is to be avoided is personal fluctuation, which is no help to arbitration and hinders its wider acceptance at international level. The attitude of a given individual should remain constant, whether assessing his or her own candidate arbitrator, the arbitrator appointed by the other party or the disclosures of the potential chair, or disclosing information as a prospective arbitrator. Inconsistency here weakens users' trust in arbitration, to say nothing of the professional's own reputation and career.
If we care about the future of commercial arbitration, then we cannot afford to ignore the importance of neutrality. It needs to be discussed and managed with realism and an awareness that it cannot tolerate double standards depending on whether one is appointer or appointee. Neutrality should be black or white, not changing shades of grey.
Below are some of the most recent of the many studies on independence and impartiality listed in a broader bibliography drawn up by the Studies and Documentation Centre G. Schiavoni of the Chamber of Arbitration of Milan.
J.V. Antonov, 'Legal Mechanism of E-justice for Ensuring Independence and Impartiality of Arbitrators in Light of International Practice' in A. Belohlávek, N. Rozehnalová, F. Cerný, eds., Independence and Impartiality of Arbitrators, Czech (& Central European) Yearbook of Arbitration, vol. IV (New York: Juris, 2014) 3.
S. Sana Chaillé de Néré, Annotation of Cass. civ. 1re, 19 December 2012, Journal du droit international 2013.946.
L. Beffa, 'Challenge of international arbitration awards in Switzerland for lack of independence and/or impartiality of an arbitrator - Is it time to change the approach?' (2011) 29 ASA Bulletin 598.
A. Belohlávek, N. Rozehnalová, F. Cerný, eds., Independence and Impartiality of Arbitrators, Czech (& Central European) Yearbook of Arbitration, vol. IV (New York: Juris, 2014).
S. Bollée, 'Indépendance de l'arbitre et non-révélation de circonstances ambivalentes, note sous Cass. civ. 1re, 25 juin 2014', Revue de l'arbitrage 2015.77.
G. Born, International Commercial Arbitration, 2d ed. (Alphen aan den Rijn: Kluwer Law International, 2014) at 2319 (Chapter 16, Disclosure in International Arbitration).
D.D. Caron, 'The Independence and Impartiality of Legal Systems' (2011) 5:3 World Arbitration and Mediation Review 273.
V. Chantebout, 'L'arbitre, les termes du litige et les termes du contrat', Revue de l'arbitrage 2012.601.
D. Cohen, 'Indépendance des arbitres et conflits d'intérêts', Revue de l'arbitrage 2011.615.
D. Cohen, 'L'indépendance de l'arbitre et sort de l'exequatur de la sentence', The Paris Journal of International Arbitration 2014-4, 795.
M. Danis, 'Les listes d'arbitres en question', The Paris Journal of International Arbitration 2014-3, 465.
M. Danis, 'Obligation de révélation et conséquence du défaut de sincérité de la déclaration d'indépendance', The Paris Journal of International Arbitration 2015-1, 95.
R. de Vietri & K. Dharmananda, 'Impartiality and the Issue of Repeat Arbitrators' (2011) 28 Journal of International Arbitration 187.
U. Draetta & R. Luzzatto, eds., Chamber of Arbitration of Milan Rules: A Commentary (New York: Juris, 2012).
A. Fichaux, 'Second roundtable: arbitral jurisprudence: the arbitrator's concerns about treating the parties equally and taking into account the needs of the state/or concession authority'  International Business Law Journal 353.
J.M. Gaitis, C.F. Ingwalson, V.B. Shelanski, eds., College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration, 3d ed. (New York: Juris, 2014).
M.F. Gusy, J.M. Hosking, F.T. Schwarz, A Guide to the ICDR International Arbitration Rules (New York: Oxford University Press, 2011) 103 (Article 7 - Impartiality and Independence of Arbitrators).
C.A. Hamilton & A. Bondarenko, 'Set Aside Application Based On Arbitrator Partiality' (2012) 27:1 Mealey's International Arbitration Report 33.
C.A. Hamilton, 'The Arbitration Court as part of Chamber of Commerce: [Im]partial?' (2012) 27:8 Mealey's International Arbitration Report 27.
S. Harnay, 'Réputation de l'arbitre et décision arbitrale: quelques éléments d'analyse économique', Revue de l'arbitrage 2012.757.
M. Henry, 'Le devoir de révélation dans les rapports entre arbitres et conseils: de la suggestion aux électrochocs', The Paris Journal of International Arbitration 2011-3, 787.
M. Henry, 'Indépendance et impartialité de l'arbitre: la Cour d'appel de Paris tire les enseignements de l'arrêt Tecso de la Cour de cassation, note sous Paris, Pôle 1 - Ch. 1, 2 juillet 2013', Revue de l'arbitrage 2013.1038.
X. Herrera, 'Arbitral Jurisprudence: The arbitrator's concerns about treating the parties equally and taking into account the needs of the State/or Concession Authority'  International Business Law Journal 306.
C. Jarrosson, 'A propos de l'obligation de révélation: une leçon de méthode de la Cour de cassation, note sous Cass. civ. 1re, 10 octobre 2012', Revue de l'arbitrage 2013.129.
C. Jarrosson, 'Remarques sur la preuve de l'absence d'indépendance de l'arbitre, à propos d'une affaire pittoresque, note sous Paris, Pôle 1 - Ch., 21 février 2012', Revue de l'arbitrage 2012.595.
N. Jefford, 'Challenges to Arbitrators for Bias: How Concerned Should We Be?', Asian Dispute Review (January 2014) 24.
M. Kantor, 'Arbitrator Disclosure and a Duty to Investigate' in S.K. Huber & B.H. Sheppard Jr, eds., AAA Yearbook on Arbitration & the Law, 23d ed. (New York: Juris, 2011) 327.
J.D.H. Karton, The Culture of International Arbitration and the Evolution of Contract Law (Oxford: Oxford University Press, 2013) 78 (Chapter 4 - Norms Arising from the Values Shared by International Commercial Arbitrators).
D.J. Khambata, 'Tensions Between Party Autonomy and Diversity' in A.J. Van den Berg, ed., Legitimacy: Myths, Realities, Challenges, ICCA Congress Series No. 18 (Alphen aan den Rijn: Kluwer Law International, 2015) 612.
M. Leemann, 'Challenging international arbitration awards in Switzerland on the ground of a lack of independence and impartiality of an arbitrator' (2011) 29 ASA Bulletin 10.
S.M. Maci, 'Arbitration in Action: The Display of Arbitrators' Neutrality in Witness Hearings' in V.K. Bhatia, C.N. Candlin, M Gotti, eds., Discourse and Practice in International Commercial Arbitration: Issues, Challenges and Prospects (Burlington: Ashgate, 2011) 225.
A. Malan, 'The Fight For Independence: A Review Of Recent Decisions Rendered By French Courts Regarding Independence Of Arbitrators' (2012) 27:6 Mealey's International Arbitration Report 30.
B. Meyerson & J.M. Townsend, '2004 Code of Ethics for Commercial Arbitrators Explained' in American Arbitration Association, Handbook on Commercial Arbitration, 2d ed. (New York: Juris, 2010) 195.
L. Melchionda, 'Arbitral Jurisprudence: The tensions between the arbitrator's concerns about treating the parties equally and taking into account the needs of the State/or Concession Authority - Contrepoint'  International Business Law Journal 336.
J. Ortscheidt, 'La récusation de l'arbitre nommé par une partie dans trois instances arbitrales relatives à la même affaire, parce qu'il "connait parfaitement le dossier", note sous Trib. gr. inst. Paris (réf.), 2 mars 2012', Revue de l'arbitrage 2013.183.
R. Peard, 'Appointing the Arbitral Tribunal: Conflicts of Interest and Other Challenges', Asian Dispute Review (July 2013) 84.
A. Pinna & F. de Bérard, 'L'indépendance et l'impartialité de l'arbitre désigné dans deux procédures connexes', The Paris Journal of International Arbitration 2014-4, 805.
M. Polkinghorne & P. Depinay, 'Récusation des arbitres et indépendance des barristers: la fin de l'exception anglaise?', The Paris Journal of International Arbitration 2012-3, 597.
C. Rogers, Ethics in International Arbitration (Oxford: Oxford University Press, 2014).
R.H. Smith, 'Courts and the Constitution of the Arbitral Tribunal: A Comparative Analysis of Standards of Arbitrator Independence and Impartiality' in F. Ferrari, ed., Forum Shopping in the International Commercial Arbitration Context (Munich: Sellier, 2013) 235.
L.J.E. Timmer, 'The Quality, Independence and Impartiality of the Arbitrator in International Commercial Arbitration' (2012) 78 Arbitration 348.
F.-X. Train, 'Mode d'exercice de l'activité d'arbitre et conflits d'intérêts', Revue de l'arbitrage 2012.725.
N.G. Ziadé, 'L'éthique et l'arbitrage en matière d'investissement: grandeur et misère de la fonction d'arbitre', Revue de l'arbitrage 2012.307.
Secretary General, Milan Chamber of Arbitration, Italy; email@example.com. The opinions expressed are the author's own and not the official position of the Milan Chamber of Arbitration.
A select bibliography on the subject can be found at the end of this article.
See e.g. the 2010 UNCITRAL Arbitration Rules, Arts. 11 and 12; the 2012 ICC Rules of Arbitration, Arts. 11 and 14; the 2014 LCIA Arbitration Rules, Arts. 5.3 and 10.1; the 2010 Milan Chamber of Arbitration Rules, Art. 19.1.
A. Redfern & M. Hunter, The Law and Practice of International Commercial Arbitration, 3d ed. (London: Sweet & Maxwell, 1999) at 220.
W.W. Park, 'Arbitrator Integrity: The Transient and the Permanent' (2009) 46 San Diego Law Review 629 at 637.
See R. Sali in U. Draetta & R. Luzzatto, eds., Chamber of Arbitration of Milan Rules: A Commentary (New York: Juris, 2012) at 254.
U. Draetta, Il Rovescio dell'Arbitrato Internazionale (Milan: Giuffrè, 2010) at 4.
See the 1977 edition of The Code of Ethics for Arbitrators in Commercial Disputes issued by the American Arbitration Association and the American Bar Association.
On the IBA Guidelines, see the following section below.
See the revised 2004 edition of The Code of Ethics for Arbitrators in Commercial Dispute, supra note 7; and the code of ethics in the Rules of the Milan Chamber of Arbitration at http://www.camera-arbitrale.it/en/Arbitration/Arbitration+Rules/Code+of+ethics.php?id=104, commented by C.G. Orlandi, in U. Draetta and R. Luzzatto, eds., Chamber of Arbitration of Milan Rules: a Commentary (New York: Juris, 2012) at 645; the 2012 Câmara de Comércio Brasil-Canadá Arbitration Rules and the Cairo Regional Centre for International Commercial Arbitration Rules.
Centre for Arbitration and Conciliation of the Algerian Chamber of Commerce and Industry (CACI); Milan Chamber of Arbitration (CAM); Arbitration and Mediation Centre of Tunis (CCAT); Arbitration Court of Morocco (CMA); Cairo Regional Centre for International Commercial Arbitration (CRCICA); Arbitration Centre of the Istanbul Chamber of Commerce (ITOTAM); Lebanese Arbitration Centre (LAC).
See the study of Y. Dezalay & B.G. Garth, Dealing in Virtue. International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago: University of Chicago Press, 1996).
This and other sociological characteristics of the world of arbitration were examined by Gaillard in the 2014 Freshfields Lecture; see E. Gaillard, 'Sociology of international arbitration' (2015) 31:1 Arbitration International 1.
Allusion to the novel Fifty Shades of Grey by E.L. James published in 2012.
W.W. Park, supra note 4 at 653.
Ibid. at 690.
J. Paulsson, 'Moral Hazard in International Dispute Resolution', Inaugural Lecture as Holder of the Michael R. Klein Distinguished Scholar Chair, University of Miami School of Law, 29 Apr 2010, http://www.arbitration-icca.org/media/0/12773749999020/paulsson_moral_hazard.pdf.