Independence of arbitral tribunal

Résumé du document

There is a tension inherent to the arbitration process that raises the sensitive issue of the independence and impartiality of the arbitral tribunal; it is the "tension of an ideal, that is, perfect fairness of the arbitrator, against the reality that the very method by which arbitrators may be selected can undermine such fairness"1. In other words, the arbitrator has the delicate task of balancing his adjudicatory function with the reality that he is, unlike national judges, "not apart from but of the marketplace".

The principle that arbitrators should be independent and impartial is globally recognised, although not always together. As a rule of thumb, national legislation's on arbitration tend to be more discreet than institutional rules and model laws. For example, while section 33(1)(a) of the 1996 English Arbitration Act and section 10(a)(2) of the 1925 US Federal Arbitration Act mention only impartiality, the requirement of both independence and impartiality can be found in the following: UNCITRAL Arbitration Rules (as revised in 2010), Art. 11; 2009 AAA International Arbitration Rules, Art. 7(1); 1998 LCIA Arbitration Rules, Art. 5.2; 2010 Stockholm Chamber of Commerce Arbitration Rules, Art. 14(1); 1985 UNCITRAL Model Law on International Commercial Arbitration, Art. 12. Even the ICC Arbitration Rules, which contained only independence in the text of the 1998 version in Art. 7(1), was changed in the 2012 version to include impartiality as well as independence in Art. 11(1). Exceptionally, the ICSID Convention only concerns itself with independence, in Art. 14(1).