Few issues are as important in the practice of international arbitration as the circumstances that disqualify an arbitrator from serving in that capacity. For the system of international arbitration to work smoothly and effectively, all parties must believe that their dispute will be decided by a fair tribunal, composed of competent, independent and impartial arbitrators. For this reason, there must be procedures available that will ultimately determine whether disqualification of an arbitrator is warranted in any particular case.
While effective mechanisms for challenge must be available, strict boundaries must be in place to restrict such mechanisms to their intended function. It is a matter of notoriety that recalcitrant parties, or parties with weak cases, may seek opportunities to obstruct the arbitral process. Making a challenge may appear as a fruitful avenue for obstruction. The right to challenge an arbitrator is therefore subjected to a number of important limitations, both procedurl and substantive.
In this thoroughly researched study of the grounds and procedures involved in challenging an arbitrator, the author provides the first in-depth analysis of the challenge mechanism under the Rules of ICSID, UNCITRAL, ICC, LCIA and SCC, and of numerous relevant issues raised in national case law in the United States, France, England, Sweden and Switzerland. Among the matters addressed are the following:
- the arbitrator's duty to disclose and investigate conflicts of interest;
- the duty of the parties to investigate and inform the arbitrator of conflicts of interest;
- the formal and timing requirements of making a challenge;
- the challenge procedure and effect on the arbitral proceeding;
- the standard for disqualifying arbitrators;
- the consequences of a successful challenge;
- the impact of the IBA Guidelines on Conflicts of Interest;
- issues of independence giving raise to challenges, including multiple appointments, the arbitrator's relationship with a party/counsel in the arbitration and the relationship between the arbitrator's law firm and a party/counsel;
- issues of impartiality giving raise to challenges, including the membership of other tribunals, the conduct of the arbitration and the failure to disclose;
- over 250 challenge decisions.
In light of the continuing growth of international business and the manner in which it is conducted, this book will be of immeasurable practical value to parties in both business and government, as well as to international law firms and the arbitral community. As a detailed guide to evolving best practice and the general obligation to arbitrate in good faith, it has no peers.