Originally from Business Disputes In China - 3rd Edition

No one can seriously argue against the fact that international arbitration has been growing at a tremendous pace and many commentators, practitioners and academics have identified a number of positive characteristics of arbitration which help to fuel such a growth. While the descriptions and importance of these essential characteristics may vary, and some may even become irrelevant over time, one key characteristic remains critically important to practitioners and their clients, which is party autonomy in determining the mechanism, particularly the selection of arbitrator(s).

The growth in international arbitration has also been accompanied by the growth in the challenges facing the various stakeholders involved in the process. One of such challenges relates to the way in which challenges to arbitral appointment based on lack of independence and impartiality are addressed in different jurisdictions and/or under different institutional rules. While there is widespread agreement on what the fundamental principles ought to be, it is the inconsistency in the application of these principles which gives rise to problems. This is largely due to the fine balance one must strike between protecting “public confidence in the integrity of the administration of justice” by way of arbitration on the one hand and, on the other hand, ensuring that challenges to an arbitrator’s independence and integrity are not vexatious. Courts and institutions around the world attempt to fine tune this balance by way of different legal formulations.

This paper examines the basis upon which the appointment of an arbitrator can be challenged based on lack of independence and impartiality, first from a "common law" perspective, and then examining the position against the context of Chinese law, ICC Rules, the LCIA Rules and, finally, the CIETAC Rules.