CAN A NON-INDEPENDENT ARBITRATOR ACTS INDEPENDENTLY?
Postscript: An interesting paper shed some lights on the subject of ‘independence’, a rarely explore subject in the field of arbitration. It states, the requirements for impartiality has been enshrined in ICC-Rules, LCIA-Rules, UNCITRAL-Rules, UNCITRAL-Model Law, AAA-Construction Industry Arb. Rules, IBA-Rules on Ethic, IBA-Guidelines on Conflicts, ICSID-Rules and also the Malaysia Arbitration Act 2005. Interestingly the UK arbitration Act 1996 is silence on this provision of being, ‘independent’ and the question is why? Such omission is deliberate as in the ‘DAC Report’, ‘[Inclusion] of independence would give rise to endless arguments […] almost any connection (however remote) has been put forward to challenge the ‘independence’’. This shows that the term, independent and impartial ought to be distinguished. The dictionary prescribed, independent as, ‘free from outside control’. Challenge on the notion of ‘independence’ has been diverse, i.e. conflict of counsel and the nominated arbitrator, in a personal injury case where the recorder is in conflict with both counsels and the classic case of Porter v Magill.
 Stuart Allen, Barristers’ Chambers in England and Wales: The Role of Impartiality and Independence in International Arbitration, LLM,RGU
 S.14(1) Malaysian Arbitration Act 2005 (AA)
 Julian, Loukas, Stefan, Comparative Commercial International Arbitration (1st ed. Kluwere Law Arbitration 2003),p.255-273
 Lord Justice Saville, ‘DAC on Arbitration Law 1996 Report on Arbitration Bill’ 13(3)102
 Oxford Dictionary (3rd.ed.Oxford University Press 2018)
 Brescia Calcio SpA v West Ham FC Plc  ISLR, SLR40; ICC Case No.1653/GZ
 Smith v Kvaerner Cementation Foundation  EWCA Civ 242
  UKHL 67
Neutrality, independence and impartiality, the three key criteria of dispute resolutions be it arbitration, adjudication, determination or mediation. Various attempt has been made to clarify the positions of these criteria, but the notion of independence herewith is given a different perspective as to: what is the meaning of independence? Can a person who is not independent acts independently? If so, can a decision by an arbitrator who is not independent be challenged?
Definition given to ‘independence’ are generally referred to private, professional or business-related relationships of the arbitrator to the parties or counsels involved in the arbitration; “likely to give rise to justifiable doubts”; Whereas an independent arbitrator is one who does not have any type of personal and/or employment relationship, needed to ensure that justice is seen to be done; Independence refers to objective and external manifestation of the relationship between the parties, counsels and co-arbitrators; and shall not only be independent but he shall also be perceived as independent by third parties.
The standard of independence however, is subject to the institution’s rules or the seat of the arbitration but generally, common law jurisdiction will follow the English position of “the real danger of bias” test which are very specific. Thus, the question of independence and bias boils down to, can a person who is not independent acts independently?
Who is a person deemed not independent? In this context, can a person under an employment of another person be deemed independent? Unlikely so, because this person under employment is constantly under the influence of the employer, via the employment agreement, bound in some jurisdiction under the Employment Act. There is no obligation for the employer to make any disclosure to its employee, thus how can an employee in this instance, and in return, has sufficient knowledge to make any disclosure, while acting as an arbitrator without risking the “real danger of bias” implication? Even if the employer has consented, it will be very subjective through a third-party perspective that such an employed arbitrator can discharged its duty independently.
If so, can a decision by an arbitrator who is not independent be challenged? The law holds that a person who is approached in connection with that person’s possible appointment as an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to that person’s impartiality or independence. An arbitrator may be challenged only if, the circumstances give rise to justifiable doubts as to that arbitrator’s impartiality or independence.
In summary, it is important for institution administered arbitration, to make sure not only a declaration is made that the potential arbitrator could discharged its duty independently, it must also confirm that the arbitrator is independent, unlikely to be under an employment of any private entities, as the rule under the “real danger of bias” test is also held in Malaysia.
 <https://www.ciarb.org/resources/features/independence-and-impartiality-of-arbitrators/>: Bruno Manzanares Bastida, ‘The Independence and Impartiality of Arbitrators in International Commercial Arbitration from a Theoretical and Practical Perspective’ (2007) 6 Revist@ e-mercatoria 1, 3 < https://ssrn.com/abstract=1491528> accessed 5 April 2012
 Model Law generally follows the IBA Guidelines: Nathalie Bernasconi-Osterwalder, Lise Johnson and Fiona Marshall, ‘Arbitrator Independence and Impartiality: Examining the Dual Role of arbitrator and counsel’ (2011) International Institute for Sustainable Development (IISD) 12 < http://www.iisd.org/pdf/2011/dci_2010_arbitrator_independence.pdf > accessed 5 April 2018.
 Malintoppi, L., Part III Procedural Issues, Chapter 20 - Independence, Impartiality, and Duty of Disclosure of Arbitrators, in Muchlinski, P. T., Ortino, F. and Schreuer, Ch. (eds.), The Oxford Handbook of International Investment Law, 2008, p. 807
 < https://jusmundi.com/en/document/wiki/en-arbitrators-impartiality-and-independence>
 <http://www.davidyek.com/adr/lessons-on-arbitrals-impartiality-halliburton-v-chubb>: Halliburton v ChubbUKSC48: the ‘real possibility of apparent bias’ by Lord Hodge
 S.14(1) Malaysian Arbitration Act 2005 (AA)
 Low Koh Hwa @ Low Kok Hwa (practising as sole Chartered Architect at Low & Associates) v Persatuan Kanak-Kanak Spastik Selangor & Wilayah Persekutuan and another case  MLJU 430
THE THREE-TENETS OF ARBITRATION, WHICH HELD SUPREME?
Some issues in arbitration that warrant some answers as to the question of party autonomy to agree on an ‘asymmetrical arbitration clause’ or an ‘unilateral option clause’ UOC, allowing one party rights to commence litigation; the question of independence and impartiality when a member of the tribunal was found to be in the apparent conflict with a witness of opinion called by the party; and the question of public policy where an award is rendered unenforceable arising from a sanction levy upon the country where the assets are located. These issues went to the ‘core tenet’ of arbitration being, party autonomy; independence and impartiality; and public policy rule. Which of these should take precedent over the other?
An ‘asymmetric-clause’ is a ‘one-sided agreement’ allowing one party ‘option to choose’ dispute resolution mechanism to self-advantages; contains therein the ‘unilateral option clause’ UOC, granting one party right to elect between arbitration or litigation, i.e, “[…] shall have the right to refer any dispute […], to a competent court in […] or any other competent court in any other country at […] sole discretion.” The criticism is obvious, as it lacks a ‘level playing field’, impeding into the equalities of the party to be heard, thus from an act of party autonomy to the obstruction of natural justice, commonly employed by specific industries i.e. banking and the construction sectors; contrast to the nature of arbitration to have ‘finality’ only to be reviewed by another court of competent jurisdiction; and promote the idea of ‘forum shopping’. Courts between common-law and civil-law are divided, i.e. UK, Hong Kong, the UAE and Singapore recognises UOC whereas Russia (issued a Digest) and France rejected UOC outright, thus it is now a question of public policy versus party autonomy, which remains supreme over the other? In the lacked of a consistent approach, party autonomy principle is not entirely absolute as it has to be view against the principle of public policy, as in the case of equality, public policies shall then take precedent.
Common that in a three-member tribunal, one party may raise a concern that an witness of opinion appointed by the other party must be excluded by the tribunal as the witness of opinion concerned was once a partner to a member of the tribunal thus the issues of conflicts and impartiality of the tribunal is now, in question. The criticism is one cannot just keep changing the member of the tribunal simply by introducing a witness of opinion that has conflict with any member of the tribunal, notwithstanding that the sole witness of opinion is the most unique available in the industry, such may not discount any attempt to employ ‘guerrilla tactics’ to derail the arbitration. Tribunal is confronted with the issues of impartiality versus natural justice, which held supreme? Impartiality has always been the cornerstone to the dispensation of justice. The law holds, threefold tests of bias, actual, imputed, apprehended or apparent bias. Actual bias is difficult to proof; imputed bias, once presented, will void the submission without proof of investigation into its likelihood or suspicion of bias; and apparent bias, is where a reasonable-public could harbour a reasonable-suspicion of bias and there is a sufficient degree of possibility of bias. There is little clarity on this as such the IBA Guidelines on Conflict, has provided Lists to categorically measure the degree of ‘conflicts’ but without the application of ‘case-specific judgment’, it remains just as ‘guidelines’ or ‘soft laws’. The recent case law shed some lights where court set aside an award on the basis of arbitrator apparent bias, in conflict with public-policy, breaching the rules of natural-justice. The court holds, the arbitrator must, statutorily, make full and timeous disclosure, which are likely to give rise to justifiable doubts as to the arbitrator's impartiality or independence, which would enable a 'fair-minded and informed observer' to decide objectively on whether there are justifiable doubts on the arbitrator's impartiality and/or independence. Therefore, considered that impartiality has always been the cornerstone to the dispensation of justice, tribunal would just have to consider the expert opinion just liked any other ‘witness’ and to draw its own conclusion as to the reliability of such ‘opinion’ and on such, the question of ‘independent and impartiality’ does not really surface.
With regard to sanction as public policy, two distinctive issues, one ‘non-arbitrability doctrine’ with regard to which law to apply in challenging the validity of the award? Second, the validity of sanction making an arbitration inarbitrable. Arbitrability, ‘involves …types of issues can and cannot be submitted to arbitration’; viewed as ‘objective’, matters can be arbitrated; and ‘subjective’, who can resort to arbitration. ‘Inarbitrability’, can challenge enforcement of arbitral award; public policy as basis of inarbitrability; fundamental to comply, tribunal must consider which lex arbitri, substantial law or lex fori, applicable? Sanctions are temporary restrictive, whereas public policy fundamentally legal-principles, stable to political changes. When sanction was imposed, binding only if parties could have known that they would be subjected to this rule, otherwise, they might selected another law, in which sanction would give effect only if they satisfied the conditions external to the applicable-law. Thus, public policy ultimately overrides party autonomy as to choose which forum as preferences.
On such account, among the three-tenets of arbitration, very likely that the following shall be the order of priority, independence and impartiality; public policy; and party autonomy.
 NB Three Shipping v. Harebell Shipping  EWHC 2001 (Comm); Deutsche Bank v. Tongkah Harbour  EWHC 2251 (QB)
 A3 v B3  ADGMCFI 0004: citing Pittalis v Sherrefettin  2 All ER 227
 Hong Kong Court of Appeal ( 3 HKC 580) and decision by the Singapore Court of Appeal ( SGCA 32).
 Sony Ericsson v Russia Telecom  No.1831/12
 UOCs also applied the Brussel I Regulation and the Lugano Convention. Arbitration agreements and therefore UOCs to arbitration are outside the scope of the Lugano Convention, Brussel I Regulation and its successor, Recast Brussels Regulation; The Rothschild Case  No 11-26.022;
 R v Sussex 1KB256; Findlay v UK 24EHRR221; W v M EWHC422(Comm)
 R v Gough AC646
 Porter v Magill 1UKHL67; Re Medicaments(No.2) 1WLR700
 Halliburton v ChubbUKSC48
 World Duty Free Co. v Rep. of Kenya ICSID Case No. ARB/00/7; R v Alex Julian Pabon  EWCA Crim 420.
 Gary B.Born, International Commercial Arbitration (Born, 2nd Ed.) p.243.
 <http://arbitrationblog.practicallaw.com/implications-of-economic-sanctions-on-international-arbitration>: some scholar opined that disputes involving economic sanctions are ‘arbitrable’
 Loukas A.Mistelis and Stavros L.Brekoulakis, Arbitrability: International and Comparative Perspectives, Int.Arb.Law.Lib.Vol.19 (Mistelis and Brekoulakis), pp.3&4, para.1-6.
 Emmanuel Gaillard and Domenico Di Pietro, Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice (Cameron, 2008 Ed.), p. 503.
 Karl-Heinz Bockstiegel, Public Policy and Arbitrability, in Pieter Sanders (ed), Comparative Arbitration Practice and Public Policy in Arbitration, ICCA Congress Series, Volume 3 [Bockstiegel], p. 178: MODSAF v IMS  EWCA Civ 145
 George A.Bermann, Introduction: The Origin and Operation of Mandatory Rules, in Mandatory Rules in International Arbitration (Bermann & Mistelis Ed.2011) p.4.
 Melli Bank v Holbud Ltd  EWHC 1506 (Comm); DVB Bank SE v Shere Shipping Co Ltd  EWHC 232
 Art.V(2)(b)ML: allows the refusal of enforcement when enforcement would be ‘in contrary to the public policy of that country’; Westacre Investments Inc v. Jugoimport-SDRP Holding Co Ltd  EWCA Civ 1401
 Bockstiegel, pp. 184 and 185.
 Semanya v IFFA  4A 318/2018
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