ESQ Legal Practice Magazine JUNE 2014 EDITION | Page 66

Arbitration Rules have
responded more positively to
the growing business needs
and the emphasis on the
inevitable responsibility
required of arbitrators in
maintaining their impartiality
and independence throughout
the arbitral proceedings. Such
responsibility embodies a duty
to disclose any information
that will be relevant to
maintaining such obligations.

It should be emphasized that the maintenance of the Arbitrator's
ethical obligation is very important to his functional role in dispute
settlement. The Arbitrator is regarded as a quasi judicial officer
whose impartiality and independence must be transparent in other to
gain the confidence of the parties who have reposed their
confidence in him.

is important to note that the
party appointed arbitrator
does not owe any allegiance to
the party who appointed him.
The party appointed arbitrator
should maintain his impartiality and independence in
Article 11(1) of the new ICC
accordance to his undertaking
Rules provides as follows:in the form of declaration
signed by him prior to
1. Every arbitrator must be appointment. Any appearand remain impartial and ance of impropriety on the
independent of the parties part of an arbitrator may affect
involved in the arbitrathe confidence of other parties
tion.
and other members of the
2. Before appointment or
Tribunal, which may lead to
confirmation, a prospec- his removal.
tive arbitrator shall sign a
statement of acceptance,
It should be emphasized that
availability, impartiality
the maintenance of the
and independence. The
Arbitrator's ethical obligation
prospective arbitrator
shall disclose in writing to is very important to his
the Secretariat any facts or functional role in dispute
settlement. The Arbitrator is
circumstances which
might be of such a nature regarded as a quasi judicial
as to call into question the officer whose impartiality and
arbitrator's independence independence must be
in the eyes of the parties, transparent in other to gain
the confidence of the parties
as well as any circumwho have reposed their
stances that would give
arise to reasonable doubts confidence in him. The
arbitrator is under an
as to the arbitrator's
obligation to inform himself
impartiality.
about what standards his
The Secretariat shall
conduct will be measured by
provide such information and to conform with those
to the parties in writing
standards.
and fix a time limit for
any comments from them.
The question the arbitrator
3. An arbitrator shall
should try to reminiscence on
immediately disclose in
writing to the Secretariat is by what standard would a
and the parties any facts reasonable man judge the
issues relating to his impartialor circumstances of a
ity and independence? The
similar nature to those
various standards that have
referred to in Article 11
emerged (e.g. under the IBA
(2) concerning the
arbitrator's impartiality or Guidelines and other
independence which may Institutional Arbitration
Rules) are designed to protect
arise during arbitration.
the integrity of the process
and to avoid unnecessary
The provision in Article 11 (2) costs and delay in the arbitral
above relating to 'reasonable
proceedings. All efforts
doubts' is of more objective
should always be made by the
effect than the subjective effect arbitrator(s) to work diligently
of clause 7 (2) of the old Rule. and judiciously to issue valid
and enforceable award(s) and
forestall the intention of
Ethical principles relating to
recalcitrant parties who want
Arbitrators are now on the
to stall the arbitral process. It
forefront of the arbitral
practice both in domestic and must always be remembered
that conduct and integrity are
international arbitrations.
critical to the legitimacy of
International Arbitration.
Under the ICC Rules arbitrators may be appointed by the
parties or by the ICC Court. It Parties to a commercial

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dispute which includes an
arbitration agreement in it
have the autonomy to choose
whoever they like to adjudicate the dispute apart from the
existence of numerous
Institutional Rules of
Arbitration such as the ICC,
the London Court of
International Arbitration
(LCIA), the America
Arbitration Association
(AAA), the CIETAC
Arbitration Rules 2012, (which
deals with Arbitrations in the
Public Republic of China
(PRC) etc. There are also other
rules of arbitrations in
national laws. What is
important is that at the onset
of negotiation in contracts
between parties, the parties
should bear in mind the
importance of including an
adequate arbitration clause
indicating the rules the parties
intend to guide any arbitral
proceedings that may arise if a
dispute arises.
Standard and suggested clauses
have been proposed, under the
ICC 2012 Rules, for use by parties
who wish to have recourse to ICC
Arbitration and/or ICC ADR Rules.
Arbitration
All disputes arising out of or
in connection with the present
contract shall be finally settled
under the Rules of Arbitration
of the International Chamber
of Commerce by one or more
arbitrators appointed in