Ethical Rules for International Arbitrators - 1
Ramon Mullerat OBE 1
"An arbitration is only as good as the arbitrator" 2
FIRST. OPENING REMARKS
It is an honour and a privilege for me to address the Court of Arbitration at the Bulgarian Chamber of Commerce and Industry on the occasion of its 50lh Anniversary of its reestablishment. I wish to thank President Silvy Chernev for his kind invitation to participate in this important event.
SECOND. INTRODUCTION
It has been rightly said that a good arbitration depends on good arbitrators. The success of arbitration proceedings greatly rests on the moral and professional qualities of the arbitrator. For this reason, arbitrators are subject to strict legal and ethical rules 3 4. This is even more evident in international arbitration. The dignity and reputation of the arbitral process also requires that these rules are strictly enforced.
The function of an arbitrator is even more sensitive than that of a judge given that the latter's decision is always subject to appeal, whereas an appeal cannot be made against arbitration awards except in limited cases.
THIRD. LEGAL, AND REGULATORY OBLIGATIONS
I. Obligations under law
Arbitrators have a duly to fulfil the obligations provided by national arbitration laws applicable to the arbitrational procedures in which they participate.
The fundamental obligations of an arbitrator generally imply adhering to the following principles: the right of the parties to be heard during the proceedings; the adversarial system and equality amongst the parties; and the insurance a fair award within the appropriate period.
An arbitrator is liable in cases of bad faith, serious negligence or corruption. If the arbitrator breaches the legal obligations, he commits a breach of contract or tort and is liable to the parties to the damages caused. It is true that some legislations grant immunity to an arbitrator but this is never an absolute immunity 5. In arbitration proceedings administered by an institutional body, some legislations grant to the parties prejudiced by an arbitrator in addition direct legal action against the arbitration institution in order to bring a claim for damages.
II. Obligations under the regulations
In arbitration proceedings administered by an institutional body, arbitrators also have a duty to comply with the regulations of the institution which has appointed mem and under which the arbitration proceedings are conducted.
The breach of these regulations gives also rise to an arbitrator's liability for damages as in the case of breach of arbitration laws.
1 Ramon Mullerat OBE is a lawyer in Barcelona and Madrid, Spain; Avocat à la Cour de Paris, France; Honorary Member of the Bar of England and Wales; Honorary Member of the Law Society of England and Wales; Professor at the Faculty of Law of the Barcelona University; Adjunct Professor of
the John Marshall Law School, Chicago; Former President of the Council of the Bars and Law Societies of the European Union (CCBE); Member of the American Law Institute (ALI); Member of the American Bar Foundation (ABF); Chairman of Commission 2020 of the International Bar Association (IBA); Co-Chairman of the Human Rights Institute (HRI) of the IBA;
Member of the Board of the London Court of Internationa! Arbitration (LCIA); Chairman of the Editorial Board of the European Lawyer. back
2 Stephen Bond, Selection of ICC arbitrators and the requirements of independence, 1988. back
3 Juan Figueroa, "Arbitraje y etica", La semana juridica. back
4
The number of legal and ethical regulations for arbitrators is proliferating. The latest rules that I know of are the Ethical
Standards for Arbitrators adopted by the Judicial Council of California, 19 April 2003. Judicial Council News, 34, 16 April 2003. back
5
Art. 19 of the Rules of the London Court of International Arbitration; art. 36 of the Rules of the American Arbitration Association; art. 34 of the Italian Arbitration Association; art. 77 of the Rules of the World International Property. In the US many arbitration rules of the federal states and case law since 1884 rules out any form of civil liability for arbitrators and arbitration institutions for acts carried out in their position. This immunity is aimed at protecting the function of the arbitrator and not the person. In England, this immunity has also been recognised (House of Lords, Sutclife v. Tackrab, 1974 and Asenson v. Asenson, 1977). German, Austrian and Norwegian legislations also recognises this right. Immunity is ruled out by art 16.1 of the Spanish Arbitration Act that establishes the liability of arbitrators for damages caused by fraud or lack of due diligence and by art. 584.2 of the the Civil Procedure Act of Austria which establishes liability in cases of unjustifiable delays to the arbitration. Limits on the liability of arbitrators, except in the cases of deliberate and intentional fraud are also provided for in arbitration regulations. Fouchard, Gaillard et Goldman, Traité de l'arbitrage comercial international, 1996. back