Ethical Rules for International Arbitrators - 6

Ethical Rules for International Arbitrators - 6

Ramon Mullerat OBE


8. The disclosure


A. Duty of disclosure.
An arbitrator, from the time of his appointment and throughout the arbitration proceedings, must disclose any such facts or circumstances likely to give rise to justifiably doubts related to his independence or impartiality. The duty of disclosure does not expire in the lapse of time prior to the acceptance to become an arbitrator hut carries on throughout the arbitration proceedings. Failure to make such disclosure creates an appearance of bias, and may of itself be a ground of disqualification.


B. Nature of disclosure.
The disclosure declaration rests upon the arbitrator. The arbitrator may not disclose, intentionally or negligently, relevant facts or could in good faith omit information, either because he docs not know of it or because in good faith he does not consider it to be relevant, but it may be for one of the parties in the arbitration. In international arbitration, the disclosure is particularly important given that the parties belong to different countries and are not in a position to have access to information in regards to the arbitration.


C. Content of disclosure.
Circumstances to be disclosed include bias, interest in the results of the arbitration and past or present relations with a party. In order to avoid negligence or bad faith of the agitators, together with a declaration of independence and disclosure, some arbitral institutions have detailed questionnaires for the arbitrators to complete, which include all possible questions on independence and impartiality.


D. Control of disclosure.
The declarations of the arbitrator must be directed to (he parties of the arbitration in ad hoc arbitration or to the arbitration institution which will then inform the parties who will have a time period in which to raise any concerns. The parties on receiving the disclosure and the responses take the questionnaire can request that the arbitrator provide further information.


E. The obligation to disclose in the laws and ethical rules.

  1. The laws. Generally, laws of arbitration do not oblige arbitrators to disclose any personal interests, which may affect their independence or impartiality before they accept their role, and limit themselves to only state the reasons for which a party may reject the appointment of an arbitrator for bias or request that an award be annulled for bias. For instance, art. 17.3 of the Spanish Arbitration Act 1988 states that the persons appointed as arbitrators arc obliged to declare any known facts that may lead to their disqualification as arbitrator in the proceedings as soon as they become aware of them. Art. 12.3 states that nobody can act as arbitrator if he has a relationship with the parties, which would lead to the abstention or disqualification of a judge. The reasons for disqualification arc detailed in art. 219 of the Judicial Power Organic Act (JPOA) and the disqualification can only occur, when one of the said reasons listed is present (art. 99.2 of the Civil Procedural Law Act 2001). Therefore, although the parties may detect a conduct or a relation, which leads them to distrust the arbitrator they will not be able to disqualify him unless there has been a breach of one of the reasons listed in art. 219 JPOA.
  2. The rules of arbitration. All rules of arbitration provide the obligation of the arbitrators to disclose any circumstance likely to give rise to justifiable doubts to his independence or impartiality before and after the appointment. For instance, art. 9 of the UNCITRAL Arbitration Rules 1976; rule 7 of the CPR Arbitration Rules 1992; art. 22 of WIPO Arbitration Rules 1994; art. 5 of the LCIA Arbitration Rules 1998; art. 7 of the ICC Arbitration Rules 1998; art. 7 of the A AA International Arbitration Rules 2001; section 12 of the Uniform Arbitration Act, of the National Conference of Commissioners on Uniform State Laws 2000; art. 6,5 of the Statute of the Court of Arbitration at the Bulgarian Chamber of Commerce and Industry and art. 143 of the rules of the said Court.
  3. The ethical rules. Rule 4 of the Rules of Ethics for International Arbitration of the IBA 1987 provides:

    "A prospective arbitrator should disclose all facts or circumstance that may give rise to justifiable doubts as to his impartiality or independence, including:

    1. any past or present business relationship, whether direct or Indirect, including prior appointment as arbitrator, with any party to the dispute, or any representative of a party, or any person known to be a potentially important witness in the arbitration. With regard to present relationships, the duty of disclosure applies irrespective of their magnitude, but with regard to past relationships only if they were of more than a trivial nature in relation to the arbitrator's professional or business affairs. Non-disclosure of an indirect relationship unknown to a prospective arbitrator will not be a ground for disqualification unless it could have been ascertained by making reasonable enquiries;
    2. the nature and duration of any substantial social relationships with any party or any person known to be likely an important witness in the arbitration,
    3. the of any previous relationship with any fellow arbitrator (including prior joint service as an arbitrator); /em>
    4. the extent of any prior knowledge he may have of the dispute,
    5. the extent of any commitments which may affect his availability to perform his duties as arbitrator as may be reasonably anticipated The duty of disclosure continues throughout the arbitral proceedings as regards new facts or circumstances.

    Disclosure should be made in writing and communicated to all parties and arbitrators. When an arbitrator has been appointed, any previous disclosure made to the parties should be communicated to the other arbitrators ".

Cannon II, AAA/ABA Code provides that: "An arbitrator should disclose any interest or relationship likely to affect impartiality or which may create an appearance of partiality or bias".