Practical guidance

Things to remember:

1. Consider interviewing a prospective arbitrator at his or her office, not at those of the party.
2. Have the interview conducted or led by an external lawyer not representing the party.
3. Avoid having a meeting over lunch or dinner.
4. An arbitrator should take a note of the interview or discussion and that should be considered as potentially disclosable.
5. In the event of appointment, some arbitrators take the view that it is a duty to inform the arbitrator appointed by the other party of the content of the interview that has taken place.

In addition to the ethical duties discussed above, an arbitrator will also need to be mindful of duties imposed by the parties and those imposed by national law. As we have discussed previously, parties are free to agree the content of their arbitration agreement, which may include duties on an arbitrator. Consequently, when taking on an appointment, an arbitrator should check the agreement to see if he or she is able to fulfil the duties envisaged by the parties, for instance, the parties may want the matter concluded within a certain time period but the arbitrator’s caseload may not permit him/her to meet those time lines; in such cases, the appointment should be declined.

Duties imposed by law will usually include a duty of care (that is, to exercise professional judgement), the duty to act expeditiously and the duty to act fairly. (This is also reflected in art 17 of the UNCITRAL Rules, which places a duty on the arbitral tribunal to act fairly and give both parties the opportunity to present its case – see the Singapore case of China Machine New Energy Corporation v Jaguar Energy Guatemala LLC and another [2020] SGCA 12).

Closely linked to the duties imposed by law is the nature of the relationship between the arbitrators and the parties: is it a contractual relationship or is the arbitrator performing a (quasi-) judicial function, such that the arbitrator is in a similar position to a judge?

The nature of the relationship is significant as it relates to how allegations of improper or negligent conduct by an arbitrator should be resolved. If the relationship is seen as purely contractual between arbitrators and the parties, then any dispute arising between them will be resolved in accordance with the contract.

If, however, an arbitrator is considered to be performing a quasi-judicial function, it follows that they would be in the same or similar position to a judge and, depending upon the legal system, an arbitrator may enjoy immunity unless the parties can demonstrate bad faith. This is the approach followed by most common law systems and has also been adopted by the ICC and is reflected in art 16 of the UNCITRAL Rules. Practitioners would need to examine national law (and case law) in the relevant jurisdiction. For example, ss 25 and 25A of the International Arbitration Act of Singapore grants immunity for arbitrators and arbitral institution in the following terms:

Liability of arbitrator

1. An arbitrator shall not be liable for —

(a) negligence in respect of anything done or omitted to be done in the capacity of arbitrator; and

(b) any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award.

Immunity of appointing authority and arbitral institutions, etc.

25A.—(1) The appointing authority, or an arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator, shall not be liable for anything done or omitted in the discharge or purported discharge of that function unless the act or omission is shown to have been in bad faith.