January 07, 2021 International Litigation & Dispute Resolution

Arbitrator Challenges: A Practical Guide

A guide considering the LCIA, ICC, and ICSID for parties who wish to challenge, or defend a challenge from, one or more members of an arbitral tribunal.

By Katia Finkel and Louise Oakley

The impartiality and independence of arbitrators is a prevailing principle of arbitration; however it has proven to be equally complex as it is fundamental. (See, for example: paragraphs 2–4 of the introductory text to the IBA Guidelines on Conflicts of Interest (IBA Guidelines) (section 33(1)(a) of the English Arbitration Act 1996, which states that the tribunal shall "act fairly and impartially as between the parties," this mirrors the provisions of article 18 of the Model Law. Further, Gary Born calls impartiality a "defining characteristic" of arbitration (paragraph 8 of chapter 1 of his 2015 book International Arbitration: Law and Practice 2nd Ed.), and the enforcement of impartiality and independence of arbitrators "vital" (chapter 7, Ibid); and Mustill and Boyd's seminal text refers to the requirement of the impartiality of the tribunal as being "so obvious as to require no elaboration" (page 44, sub-paragraph (v), Commercial Arbitration, 2nd Ed., 1989).) In submitting to arbitration, parties defer to the judgement of select individuals with the qualities, skills, and experience that the parties themselves have determined to be valuable in the tribunal hearing their dispute. In doing so, arbitrators are conferred with the dual quality of party creation and final adjudicator—a far departure from the conventional court process with its select judiciary and clearly defined appeals processes. Such unconformity serves to highlight the trust that is placed in each arbitrator and underpins the need for independence and impartiality. Indeed, it could be said that the success of arbitration as a mechanism for effective dispute resolution depends on this lynchpin. Without confidence in the integrity of the institution, there will be no buy-in from its users.  

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