CIArb AWARD WRITING TECHNIQUES: CHALLENGE ON IMPARTIALITY AND INDEPENDENCE

​CIArb AWARD WRITING TECHNIQUES: CHALLENGE ON IMPARTIALITY AND INDEPENDENCE 

Another common challenge posed by a party especially when the member of the tribunal is a famous personality.
 
Impartiality or independence Challenge
 

1. During [When], a substantive issue was raised by the parties with regards to my impartiality or independence.
2. The Respondent challenged my jurisdiction by alleging that it had come to light:
   1. I may have past business and personal relationship with […];
   2. […] and I may have been members of […] since it opened […];
   3. The Respondent is fearful that there might be an opportunity for the Claimant to exert some influences on my decision;
   4. I should have disclosed this relationship as it falls within the borderline of the orange and red lists of the IBA Guidelines on Conflict of Interest ‘IBA’; and
   5. I stated that I had no prior knowledge of […] being a member of the […] as it had some prestigious members and generally opens to the public for membership.
3. Having to consider this submission, I now, would deal with the challenges as the followings:
   1. Whether I may be challenged in such circumstances that may give rise to justifiable doubts as to my impartiality or independence, as per Art.12(2) of the Law? If so, under what circumstance shall my ‘impartiality or independence’ be affected? If not, what are the available options for the parties and myself, to take?
   2. Pursuant to Art12(1) of the Law, it states, “[…], he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.”
   3. I am aware that the Law separates ‘independence’ and ‘impartiality’, while the English law does not. Therefore, I shall clarify both in this award.
   4. The notion of ‘impartiality’ involves bias by an arbitrator towards one party, with the English test of Porter v Magill [2001] UKHL 67, “whether a "fair minded and informed observer", having considered the facts, would conclude that there was a "real possibility" of bias”, which was also reference in the case of Davidson v Scottish Ministers (2002) SC 205.
   5. In accordance to the Law, be it the Model Law, Act 1996, imposed a specific requirement on the tribunal to act fairly and impartially between the parties, as the fundamental principle of arbitral proceedings.[1]
   6. Thus, on impartiality, one ought to consider whether the tribunal can resolve the dispute objectively as stated in Phillip Brothers v Societe Drexel Burham Lambert at autres.
   7. It was also held in Reasuransi Umum Indonesia v Evanston Insurance Co (1992) 92 Civ. 4623 (MGC) that ‘partiality will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.’
   8. The notion of independence has been construed as relationship between the arbitrator and the parties which could mean prior or present personal or business contact with one of the parties and with this regard the persuasive statement, that being a ‘Facebook friend’ without more is insufficient basis for recusal.[2]
   9. I am also aware of the IBA has provided a set of ‘soft laws’ in this matter that I had adopted as a principle to proof my stand;
   10. Foremost, doubt as to my ‘impartiality or independence’ is justifiable as in accordance to Art.2(c)IBA, when a reasonable third person, having knowledge, would reach the conclusion that there is a likelihood I may be influenced by factors other than the merits of the case. In the circumstances as described, as per Art.2(d)IBA, in the ‘Non-Waivable Red List’.
   11. In view that my acquaintance was a relationship with another person for one of the parties, through membership in the same professional association, or social or charitable organization, or through a social media network, such description falls within the ‘Green List’ as per Art.4.3.1.IBA, ‘justifiable doubt’ therefore, does not arise.
   12. On this ground, I would have make the necessary disclosure, if prior to my appointment I would have known […] is also the member of […], as required under Art.3(a)IBA and Art.12(1) of the Law. I affirmed that such would not affect my ‘independence or impartiality’, as per Art.3(c)IBA.
   13. The options for the party to mount a challenge on my ‘independence or impartiality’, shall within fifteen days after becoming aware send a written statement of the reasons for the challenge to me. Unless the other party agrees to the challenge, I shall then decide on the challenge, pursuant to Art.13(1) and Art.13(2) of the Law. Since the lapsed of the 15 days from the date of discoveries […]-months ago, there has been ‘no challenge’ posed by any party, the rights to challenge on this matter is deemed waived in accordance to Art.32 of the Law.
   14. In considering my options, I shall have the power to rule on my own jurisdiction as per Art.23 of the Law, to accept such appointment and proceed with the arbitration.
4. I FIND AND HOLD THAT, I had the competence to rule on my jurisdiction and I am satisfied that I have the jurisdiction to determine all the matters submitted to me by the parties as per Art.16(1) and Art.23 of the Law.

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[1] G. Herrmann, ‘The Arbitration Agreement as the Foundation of Arbitration and its Recognition by the Courts’
[2] Advisory Committee on Judicial Ethics of the James State Unified Court System, 2017.