I. INTRODUCTION

It is the duty of the arbitrators in international arbitration to be independent of the parties and in an unbiased way and in accordance with due process and the applicable lex arbitri and arbitration rules to make themselves acquainted with the facts of the case and the claims, allegations and defences of the parties and, within a reasonably short period of time, to make a reasoned award, based upon the applicable law, which fulfils the requirements for the award to be enforceable.

 

The title of this chapter speaks of the duties of an arbitrator. The above description covers the membership of the arbitral tribunal as a
whole, whether it consists of a sole arbitrator or a number of arbitrators. In addition, there may be duties that are special to the sole arbitrator or chairman, and other duties that may be special to the co-arbitrators, at least if they are party-appointed.

 

The arbitrator’s duties are first of all such duties the breach of which may have consequences for the validity and enforceability of the award. The primary duty of arbitrators, as stated in Article 35 of the ICC Arbitration Rules, is “to make sure that the Award is enforceable at law.” There may also be duties which, depending on any rules of immunity of the arbitrators, may have other legal consequences if breached, such as the breach of a rule of confidentiality. Finally, there may be duties mainly of a moral or ethical character, the breach of which will have no legal consequences for the award but which, in serious cases, may have the effect of depriving the arbitrator of any future appointments or of his replacement in the instant case.

 

The starting point for assessing the duties of an arbitrator in a particular case is the arbitration clause and the arbitration rules, if any, to which it refers. The clauses and rules will reveal a number of matters which may imply duties of the arbitrators, such as the duty to go to the particular place which is the seat of arbitration, unless the parties dispense with it; the duty to use a particular language; the duty to administer the proceedings in accordance with particular rules; and the duty to plan the proceedings and the arbitrators’ available time in such a way that the award can be made within the prescribed time limit or within a reasonable time. The parties may, in the arbitration agreement or by reference to a specific set of arbitration rules or to a specific arbitration institution, have prescribed other duties of the arbitrators. Further duties may be found in the applicable arbitration law, the lex arbitri. Ideally, before undertaking to be an arbitrator, all of these sources should be considered. But at least the chairman of the arbitral tribunal must certainly do so after having been appointed.