Thread: Can an arbitration organization challenge an arbitrator

Forum -> Vis Moot 2011 -> Can an arbitration organization challenge an arbitrator

Guest: mootie-newbie - 2010-10-05 14:44:32

Can an arbitration organization challenge an arbitrator

I am struggelin with the issue if an organizsation can challenge or remove an arbitrator even if the parties do not object?!

deepakelanthoor - 2010-10-05 15:57:45

RE: Can an arbitration organization challenge an arbitrator

The general understanding is that the impartiality of arbitrators is a requirement that stems from the rights of parties to fair hearing. Therefore, the right can be waived. However, it is arguable both ways in view of the wording of Article 20(1)(e) of the Rules of Arbitration of the Chamber of Arbitration of Milan. I have discussed the issue cursorily at http://lexarbitri.blogspot.com/2010/10/vindobona-junction-understanding-18th_05.html and intend to follow up with more detailed discussion on this soon.

Good luck with the moot

ofroitzheim - 2010-10-05 16:07:39

RE: Can an arbitration organization challenge an arbitrator

moreover it is possible that the "Code of Ethics" (CoE) is applicable which provides that the arbitrators have to be independent and impartial (Art. 5 et seq. -> http://trans-lex.org/752000#head-60). Despite the fact that the arbitraor did disclose (Art. 7 of the Code of Ethics) one may argue that the duty derived from Art. 5 et seq. is breached. Therefore Art. 13 (http://trans-lex.org/752000#head-68) may give the Chamber the power to replace that arbitrator. By the way, Art. 1 of the CoE (http://trans-lex.org/752000#head-56) seems to make the code applicable to any arbitrator acting in an arbitration administered by the camera arbitrale di milano.

But that is only a first look at the issue. I haven't thought about it properly. I'll come back if I have new ideas.


_______________
This text was edited (05.10.2010 - 16:11:13) by ofroitzheim

Guest: mootie-newbie - 2010-10-06 09:41:16

RE: Can an arbitration organization challenge an arbitrator

That sounds interesting. Is the Milan Chamber in this point compareable to the ICC in Paris?

ofroitzheim - 2010-10-06 09:58:12

RE: Can an arbitration organization challenge an arbitrator

The ICC also uses a two stages procedure (see Art. 8(3) ICC Rules)

1. Appointment by one party (in case of a three member tribunal)

2. Confirmation by the Secetary General or the Court in plenary session.

A nice Introduction to this ICC procedure is given in W. Michael Tupman, Challenge and Disqualification of Arbitrators in International Commercial Arbitration, 38(1) ICLQ 26 at p. 31 et seq. Note that the Rules cited in the article are not the current version. The current version is dated from 1998.


_______________
This text was edited (06.10.2010 - 10:06:10) by ofroitzheim

deepakelanthoor - 2010-10-06 15:21:07

RE: Can an arbitration organization challenge an arbitrator

Newbie, when you asked whether ICC and Milan Chamber are comparable, did you mean (i) whether they are comparable in their roles in an arbitration or (ii) whether the specific provisions of ICC Rules and Milan Chamber Rules are comparable? If the latter is the question, Oliver has answered it. If the question is the former more fundamental question of what exactly is Milan Chamber, is it something like the ICC here goes the answer.

In an arbitration there are several interwoven normative systems that you will be dealing with. For example, there is the law governing the contract, law of arbitration (lex arbitri), procedural rules, etc. The choice of an arbitral institution like the ICC or the Milan Chamber indicates that the parties want the procedure of the arbitration to follow the rules of that institution and that the institution function certain functions (like constitution of the tribunal) in relation to the arbitration.

The number of different legal systems that come into play in an arbitration is often confusing for a beginner. A brief introduction to some basic concepts including the role of an arbitration institution can be found here http://lexarbitri.blogspot.com/2010/10/vindobona-junction-introduction-to.html

Guest: mootie-newbie - 2010-10-06 15:35:23

RE: Can an arbitration organization challenge an arbitrator

Hi all,

my question is answered. Thank you all!

Guest: Curious - 2011-02-28 04:05:21

RE: Can an arbitration organization challenge an arbitrator

Dear Newbie-Mootie...am curious in respect of the answer you had found.  I am struggling with a similar issue, whether a co-abritrator can challenge the other party nominated arbitrator on grounds of likelihood of bias.  Appreciate your sharing your findings if possible.

Guest: Curious - 2011-02-28 04:06:07

RE: Can an arbitration organization challenge an arbitrator

Dear Newbie-Mootie...am curious in respect of the answer you had found.  I am struggling with a similar issue, whether a co-abritrator can challenge the other party nominated arbitrator on grounds of likelihood of bias.  Appreciate your sharing your findings if possible.

ofroitzheim - 2011-02-28 15:27:42

RE: Can an arbitration organization challenge an arbitrator

Co-arbitrators have no right to challenge an arbitrator since this would not respect partyautonomy. The Parties may waive their right to challenge an arbitrator. Therefore, only the parties can challenge arbitrators and sometimes the institution reserves the right to refuse confirmation even without an objection by the parties (eg the ICC).

I think, but this is not yet settled, that co-arbitrators when they discover any bias of another arbitrator have the duty to disclose that fact to the parties. Then the parties can choose to challenge or to waive their right to challenge. This duty is not covered by any arbitration rules or domestic law, as far as I know. These sources only demand that a arbitrator discloses facts relating to himself and not to his fellow arbitrators.

A reference for that (in German) is "Karl, Die Gewährleistung der Unabhängigkeit und Unparteilichkeit des Schiedsrichters (2004), p.. 107 et seq."


_______________
This text was edited (28.02.2011 - 15:39:20) by ofroitzheim


_______________
This text was edited (28.02.2011 - 16:09:00) by ofroitzheim
 
How to search - Contact - Team - Trustees - Disclaimer / Legal information / Privacy - Twitter - Facebook
A project of CENTRAL, University of Cologne.