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Principle

No. XIII.2.7 - Immunity of arbitrator

An arbitrator enjoys immunity from liability for all acts or omissions performed in the exercise of his judicial decision-making unless he has acted intentionally, or arbitrarily, or has committed a fraudulent act.
Commentary
This Principles follows from the fact that arbitrators are private judges and enjoy the same liability privilege than state court judges. This liability privilege, however, is limited in two ways. First, it covers only the decision-making of the arbitrator. If the arbitrator causes damages to one of the parties to the arbitration and the act which has caused the damage is outside his decision-making task, he has incurred liability vis-a-vis that party under the arbitrator's contract which is concluded between the arbitrator and the parties as soon as the arbitrator is appointed. Secondly, the liability privilege does not apply if the arbitrator has acted intentionally, or arbitrarily, or has committed a fraudulent act. In these cases, he does not deserve protection from liability, even though he has acted within the limits of his decision-making duty.

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References
Arbitration Rules
DIS Arbitration Rules 1998, downloadable at http://www.dis-arb.de
Court Decisions
Arenson v. Casson Beckman Rutley & Co., [1977] A.C. 405 et seq.
Austern v. Chicago Board Options Exchange, Inc., 898 F.2d 882 (CA, 2nd Cir.)
Cohen Highley Vogel & Dawson v. Bon Appetit Restaurant, 1999 CanLII 14808 (Ontario Supreme Court)
Feichtinger et al. v. Conant et al., 893 P.2d 1266 (Sup. Ct. Alaska)
George Corey v. New York Stock Exchange, 691 F.2d 1205
OGH, Az. 1Ob253/97f, 28 April 1998
Sutcliffe v. Thackrah and others, [1974] A.C. 727 et seq.
Doctrine
Berger, Klaus Peter, International Economic Arbitration, Deventer, Boston 1993
Born, Gary B., International Commercial Arbitration, Volume I (2009)
Domke, Martin, The Arbitrators Immunity from Liability: A comparative survey, Toledo Law Review Vol. 1971 Fall-Winter at Page 99 et seq.
Fouchard Gaillard Goldman on International Commercial Arbitration (edited by Emmanuel Gaillard and John Savage) The Hague 1999
Franck, Susan D., The Liability of International Arbitrators: A comparative Analysis and Proposal for qualified Immunity, N.Y.L. Sch. J. Int'l & Comp. L. Vol. 20 at Page 17 et seq.
Lew, Julian, The immunity of arbitrators, 1990
Olesen, Elvi J., Baar v. Tigerman: An Attack on Absolute Immunity for Arbitrators!, California Western Law Review Vol. 21 at Page 564 et seq.
Schlosser, Peter, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed., Tübingen 1989
Weston, Maureen A., Reexamining Arbitral Immunity in an Age of Mandatory and Professional Arbitration, Minnesota Law Review Vol. 88 at Page 449 et seq.
International Legislation
Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention)
National Legislation
Arbitration (Scotland) Act 2010
English Arbitration Act 1996
US Uniform Arbitration Act 2000
Contract Clauses
There are currently no contract clauses.
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