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Need for an Independent and an Impartiality Arbitrator
Independence and impartiality of an arbitrator
An arbitration is nearly as good as the arbitrator. Arbitration being a dispute resolution mechanism, must ensure a choice that is free from all kinds of bias and partiality and to make sure this, it is necessary that the arbitrator appointed in any dispute must be independent and impartial. Independence, impartiality & neutrality of the arbitrator are important for fair, free & unbiased arbitral proceedings while adhering to natural justice.
According to sec 3 of the IBA rules[1], impartiality arises when an arbitrator tries to favour one among the parties or is prejudiced about the subject matter of the dispute or when there is some personal interest attached to the matter of dispute.
Several International Tribunals have concluded that the requirements of independence and impartiality serve to protect the parties against arbitrators being influenced by factors aside from those associated with the merits of the case. There is no uniform legal standard on which to investigate arbitrators’ independence and impartiality. In fact, there are several standards utilized in various jurisdictions. A number of them include “the real danger of bias,” then there are American standards that say that the arbitrator must not only be impartial but must also appear so. There is also the “justifiable doubts” standard which is applied by the UNCITRAL Model Law.
On the opposite hand, arbitral rules like those applied by the ICC contain subjective and objective components that encompass and mention both the concepts of independence and impartiality under “the eyes of the parties” and the “reasonable doubts” standard, respectively.
Advantages of an arbitrator that is impartial and independent:
From the arbitrator’s perspective- One will often find that a bias arbitrator during a three-member tribunal will lose the respect of his colleagues. His opinion will be therefore not heard or taken under consideration. Additionally, a bias arbitrator’s reputation will be destroyed rapidly amongst the arbitration community, thus striking such arbitrators out of the system.
From the parties’ perspective- This same issue will end in the sensible conclusion that appointing bias arbitrators won't constitute a wise choice and can generally be counter-productive to the party’s interests.
In conclusion, the necessity for arbitrators to be both independent and impartial guarantees the parties that their particular disputes will be resolved fairly and legitimate the entire concept of arbitration altogether.
[1] https://www.ibanet.org/resources
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.
- An arbitration is nearly as good as the arbitrator.
- Arbitration being a dispute resolution mechanism must ensure a choice that is free from all kinds of bias and partiality.
- Independence and impartiality of the arbitrator are important for fair, free & unbiased arbitral proceedings.
