Ethical Rules for International Arbitrators - 10

Ramon Mullerat OBE

VII. Diligence

The speed of the dispute settlement is another benefit that the parties look for an arbitration. This benefit is particularly significant in business activities because timely resolution of a dispute also secures prompt continuation of business operations without freezing assets unnecessarily.

All efforts must be taken by the arbitrators to prevent delaying tactics, harassment of the parties, or any other disruption of the arbitration process. When the parties set forth the arbitrator's authority in their agreement, the arbitrator should neither exceed nor fall short of the mandated authority. The arbitrator is required to exercise authority completely and to comply with all provisions of the agreement.

The IBA Rules of Ethics (art. 1) state as a fundamental rule that the arbitrators shall proceed diligently and efficiently to provide the parties with a just and effective resolution of their disputes art. 1 professional standard of the CIARB, Guidelines of Good Practice for Arbitrators; Canon I, G, AAA/ABA Canon: art. 23 a WIPO Arbitration Rules; 17 a London Maritime Arbitrators' Association; art. 7, German institution of Arbitration, Guide to the Conduct of Arbitration Proceedings.

The arbitration must ensure the just, expeditious, economical and final determination of the dispute (art. 5.1 CIARB. Arbitration Rules). An arbitrator should perform duties diligently, conduct a proceeding as effectively and economically as possible, and conduct a case as efficiently and promptly as the circumstances reasonably permit (Canon 1, B National Arbitration Forum Code of Conduct).

VIII. Integrity and fairness of the proceedings

In order for commercial arbitration to be effective, there must be broad public confidence in the integrity and fairness of the process. Therefore, an arbitrator has a responsibility not only to the parties but also to the process of arbitration itself, and must observe high standards of conduct so that the integrity and fairness of the process will be preserved. Accordingly, an arbitrator should recognise a responsibility to the public, to the parties whose rights will be decided, and to all other participants in the proceeding.

After accepting appointment and while serving as an arbitrator, a person should avoid entering into financial, business, professional, family or social relationships, or acquiring any financial or personal interest, which is likely to affect impartiality or which might reasonably create the appearance of partiality or bias (Canon I, D, AAA/ABA Code).

No arbitrator should accept any gift or substantial hospitality, directly or indirectly, from any party to the arbitration. Sole arbitrator and presiding arbitrators should be particularly meticulous in avoiding significant social or professional contacts with any party to the arbitration other than in the presence of the other parties.

The arbitrator should carefully and deliberately decide all issues involved in the dispute by relying on his independent judgement and without consideration of any outside pressures. The arbitrator should not delegate his responsibility to decide the case to another person (Canon V, AAA/ABA Code).

IX. Duty to act professionally

During the proceedings, an arbitrator should exhibit and require all participants to exhibit equality, fairness, diligence, promptness, patience and courtesy toward all parties lawyers, witnesses, and other arbitrators. (ICC Arbitration Rules; art. 24.1 ABA, Canon IV, AAA/ ABA Code, etc.).

X. Communications

An arbitrator should not discuss the merits of the case or receive evidence or legal argument from a party in the absence of other party and his fellow arbitrators. Throughout the arbitral proceedings, an arbitrator should avoid any unilateral communications regarding the case with any party, or its representatives. If such communication should occur, the arbitrator should inform the other party or parties and arbitrators of its substance.

An arbitrator communicating with a party in writing should address a copy of the communication to the other party, the other arbitrators, and the secretariat of the court. An arbitrator may communicate with a party regarding the fixing of procedural dates or other practical and material aspects of the arbitration, but the contents of such communication should immediately be made known to the other party and arbitrators. An arbitral tribunal should generally allow the parties to modify or adopt procedural rules, including ones that may reached in the course of proceedings. For instance, if both parties agree, each party may communicate ex parte with the arbitrator it has named, particularly where the parties agree that such communication may favour a settlement.

Canon Three of the National Forum Code of Conduct for Arbitrators lists the circumstances where an arbitrator can discuss the case with one party in the absence of another party: a) matters as setting the time and place of proceedings or making other arrangements for the conduct of proceedings; b) if a party fails to be presented at a proceeding after having given due notice; c) if all parties consent; d) when other provided in applicable rules.