In the Era of Social Media, is the Arbitrator's Duty to Stay Impartial Shifting?
In an arbitration procedure, an arbitrator's independence and impartiality are required. As a result, governments worldwide have made substantial steps to clarify the conditions that might generate legitimate questions about an arbitrator's independence and impartiality. However, until recently, one sphere remained untouched.
Freedom of speech and expression has reached new heights thanks to social media. However, in the field of arbitration, this unfettered liberty has produced issues. Because of apprehensions of bias, an arbitrator's tweets and postings have the potential to trigger challenge and annulment procedures.
Social Media and Arbitrator’s Impartiality: Opening a Pandora’s Box
To strike a balance between the arbitrator's freedom of speech and expression and its duty to remain impartial, the court in Sun Yang v. Agence Mondiale Antidopage (AMA) and Fédération Internationale de Natation (FINA) (“Sun Yang case”) said that expressing one's opinion on personal matters does not, in and of itself, create an apprehension of bias.
On the other hand, it ruled that the use of violent and racial words in posts against Chinese citizens, even after the arbitration procedures against a Chinese athlete had commenced, established objective grounds for suspicion of prejudice.
The ruling in the Sun Yang case is unique in the world in arbitration, in which doubts about an arbitrator's impartiality have been raised based on an arbitrator’s previous social media activities. When making decisions in comparable instances, courts and tribunals must consider a variety of criteria. The Sun Yang case by itself does not provide answers to all of these concerns.
First, a ban on an arbitrator's social media accounts significantly impacts that person's privacy. The Sun Yang decision effectively enables parties to investigate an arbitrator's social media conduct.
Second, in the Sun Yang case, the arbitrator had sent the racist-slur tweet personally, making it a more straightforward case.
Third, in all modern countries, everyone's right to freedom of speech and expression is fundamental.
Fourth, in addition to the post's wording, the period when it was written must be considered.
Social media has altered the arbitration law landscape, just as it affects our daily lives. While merely the tip of a potentially enormous iceberg, the judgment in the Sun Yang case has established a dangerous precedent since it effectively encourages parties to research an arbitrator's social media behaviour to challenge them successfully. Although, logically, an arbitral judgment might be thrown aside based on reasonable suspicion of prejudice in situations involving arbitrators who have and continue to post tweets with violent and racial overtones, the decision in the Sun Yang case has opened many possibilities.
(This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, or Religion, Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre Foundation shall not be responsible for any errors caused due to human error or otherwise.)