Originally from The American Review of International Arbitration

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ABSTRACT

Echoing the now common call for increased efficiency of process, this paper explores the claim that proactive settlement of disputes as a means of active case management can also be a rather effective tool to reduce judicial overload. Acknowledging that the “uninvolved” judge is a structural problem of civil justice, the paper explores how “proactive” a judge or an arbitrator can be to manage the proceedings, to settle the dispute, and reduce overload, but also to guarantee that the tribunal’s direct involvement does not create an appearance of partiality. Therefore, in advance, the paper tries to capture the notion of independence and impartiality to find out whether the independence of an arbitrator can or should be equated to that of a domestic judge. Despite the supra-national mandate for a more “proactive” role of adjudicators in fostering settlement, it is evident throughout the analysis that different questions and challenges are posed in the litigation and arbitration context. The paper concludes that techniques to facilitate proactive settlement should belong to the arsenal of every adjudicator. Greek jurisdiction is used as a paradigm throughout the analysis of the relevant issues.

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Another interesting issue that drew the attention of the Greek Supreme Court was linked to multiple and overlapping appointments.  As Areios Pagos noted, the exercise of judicial duties consecutively by the same judge in the same case violates the principle of impartiality. This is because the pronouncement of their jurisdictional judgment, on the exact same issue in the previous trial of the suspension of the execution of the contested arbitration award, causes objective suspicions of bias. The parties may be given the impression that the judges will be led to a judgment based on the opinion they have expressed in the previous case, a fact that necessarily leads to mistrust as to the impartiality of their judgment. Halliburton is a leading English case on the same issue under the arbitration context. There, the Supreme Court of the United Kingdom held that failure to disclose overlapping references is capable of demonstrating “a lack of regard to the interests of the non-common party” and may, therefore, in certain circumstances constitute apparent bias.

In conclusion, it is evident that the insistence upon the right of each party to be “represented” on a tribunal which led to the establishment of a system of well-chosen party-appointed arbitrators, as long as it is preserved, can no longer justify the assumption that arbitrators are “equated” to judges, governed by “no less stringent”  requirements of independence and impartiality. Due to the profound differences that emerge from the specific features of arbitration, impartiality has to be looked at in a different context. Therefore, despite the absence of an integrated mechanism to identify the lack of independence and impartiality on an international level, boundaries are set by arbitrator’s own duty to disclose and investigate potential conflicts since, having being aware of existing conflicts, parties are then in position to accept the nomination and waive independence.  That means that in the consensual realm of arbitration the choice to have more or less independence and impartiality belongs to the parties. As the analysis below will show, this very same “informed consent” is the solution to any challenges related to impartiality because while assisting the parties in reaching an amicable settlement of their dispute, the arbitral tribunal has expressed its preliminary views on the merits. 

III.        AMICABLE SETTLEMENT OF A DISPUTE AS AN EFFECTIVE TOOL OF ACTIVE CASE MANAGEMENT

A.         The Standard of Impartiality of a Judge or an Arbitrator When Participating in Settlement Discussions: The Supra-National Mandate for a More “Proactive” Role

1.         General Remarks

The answer to whether the independence of an arbitrator can or should be equated to that of a domestic judge is critical for the next challenging issue to be further analyzed and that is active judicial case management as a global modern tendency. One of its aspects is the more active role of the judge in the amicable settlement of the dispute. Rule 24.1 of the ALI/UNIDROIT Principles and Rules for Transnational Civil Procedure and Rule 10 of the ELI/UNIDROIT Model European Rules of Civil Procedure explicitly encourage a more active role of judges in reaching settlements, while in the same vein the general Standard 4(d) of the IBA Guidelines provides also that an arbitrator may assist the parties in reaching a settlement of the dispute at any stage of proceedings. Despite this supra-national mandate for a more “proactive” role of judges and arbitrators with respect to the amicable settlement of the dispute, not all national jurisdictions embrace their new role as settlement facilitators. Cultural dimensions have a particular effect on the approach to be taken regarding the issue of direct involvement of the court or the arbitral tribunal in the parties’ effort to solve a dispute.  The interplay of global tendencies with local traditions will be addressed through the Greek paradigm, in order to demonstrate how local culture shapes the approach of both the society and the legislator to law.