The Independence And Impartiality Of Arbitrators In International Commercial Arbitration

“Arbitration is only as good as the arbitrators.” and the proverb highlights the importance of the arbitrators to the greatest extent possible.Arbitrators are the core of the arbitration system,but people are always more concerned about whether the arbitration process is perfect or not,it is easy to ignore the arbitrators’ role playing in the arbitration process.The arbitrator controls the progress of the arbitration proceedings,and it can be said that a good arbitrator can make the arbitration achieve a multiplier effect.According to the arbitration system,the arbitrator is appointed by one of the parties or both parties.This is an important feature of the arbitration system and one of the important reasons why the parties have chosen to resolve the dispute through arbitration.The parties choose arbitrators,mainly consider two factors,one is the professional quality of the arbitrators,that is,whether the arbitrators have the professional knowledge to resolve the dispute cases;the other is the arbitrator’s moral sentiment,whether the parties can remain unbiased between the parties,to resolve disputes fairly and equally,and this is the topic whice this article discusses about-the independence and impartiality of the arbitrators.Except the introduction and conclusion,this paper is divided into four chapters to discuss.The introduction consists of statement of problem,the value and significance of the study,the literature review,the research method and so on.The main reason why I chose“The Independence and Impartiality of Arbitrators in International Commercial Arbitration”as the topic is that whether the arbitrators,as a “private judge”,are independent and impartial directly affect the interests of the parties to the arbitration and the healthy development of the arbitration system.However,the international community and domestic and foreign scholars have not yet reached an agreement on the independence and impartiality of arbitrators.At the same time,there is a major flaw in the arbitrator system in Chinese Arbitration Law.Independence and impartiality are the most basic obligations of the arbitrators,but it is not clear in the Arbitration Law of our country,which seriously hinders the development of our arbitration system.Therefore,this paper hopes to make a comprehensive proposal on the independence and impartiality of arbitrators in China by studying the domestic and foreign literature,analyzing the typical cases and comparing the practice of the major countries practicing in the area of arbitrator’s independence and impartiality.The first chapter,“Overview of the Independence and Impartiality of Arbitrators in International Commercial Arbitration”.This chapter first discusses the importance of arbitrators’ independence and impartiality.Arbitrators and arbitral tribunals maintain a high degree of independence,and arbitrators have a high degree of discretion in determining procedural and substantive issues in arbitration.Therefore,the independence and impartiality of arbitrators are of great significance in safeguarding arbitral proceedings and substantive justice,making up for the defects of the single ruling system and promoting the international development of arbitration institutions.Secondly,give the definitions of “independence” and “impartiality” respectively.Conceptually,independence indicates the relationship between the arbitrators and parties,while impartiality indicates the arbitrators’ heart,so these two are different,but independence and impartiality maintain a close contact between the two.And finally sort out the world’s major countries and arbitration institutions’ legislative model in dealing with the relationship between independence and impartiality.This chapter will mostly focus on the relationship between independence and impartiality and the current state of legislation in various country.The second chapter,“The Factors That Influenceing the Arbitrators’ Independence and Impartiality ” of the factors,was divided into two parts to discuss.Because of the complexity of the factors that affect the independence and impartiality of the arbitrators in practice,it is necessary to ascertain the criteria for independence and impartiality.This chapter first studys the all the major countries’ practice in the criteria for independence and impartiality of arbitrators.It is found that almost all countries and the arbitration institutions have adopted the “justifiable doubts” standard,but referring to whether the same standard should be applied to the judges,there are different opinions;secondly,it analyzes the specific factors that have impact on the arbitrator’s independence and impartiality listed in IBA Guidelines on Conflicts of Interest in International Arbitration.The third chapter talks about “The Safeguard Mechanism of Arbitrators Independence and Impartiality”.This chapter has always been the focus of the study of scholars in China.The safeguard mechanism of arbitrators independence and impartiality include arbitrators’ qualification,duty of disclosure,challenging,legal liabilities and so on.This article chooses duty of disclosure,challenging and legal liabilities of arbitrators to study.For duty of disclosure,I talk about the standards of disclosure,the form and procedures of disclosure and the legal liabilities of arbitrators’ breach of duty of disclosure.There are two standards of disclosure in practice,that are subjective standard and objective standard.I think subjective standard could protect the parties’ right to know to maximum extent and avoid omitting to disclose factors which should be disclosed.With regard to the form and procedures of disclosure,the practice of signing a statement of independence,represented by the ICC Arbitration Rules,is clearly more advantageous.For challenging of arbitrators,I mainly analysis the grounds for challenging and who has the right to decide the challenging.In the international practice,the grounds for challenging are mainly divided into two kinds:the arbitrators lack of independence or impartiality and the arbitrators do not meet the qualifications stipulated by the parties.And for who has the right to decide the challenging,there are differences among countries and arbitration institutions.The arbitrator liability system is the last ditch to ensure the independence and impartiality of arbitrators.Due to the particularity of the identity of the arbitrators,States have different viewson whether the arbitrators should bear civil and criminal liabilities.About whether the arbitrators shall bear civil liability,there are three doctrines:full liability,absolute immunity and limited immunity.Limited immunity is the amendment to full liability and absolute immunity,and it is widely recognized.And arbitrators’ criminal liability is explicitly stipulated in the criminal law only in a few countries.Among these countries,arbitrators’ criminal liabilityis generally limited to the arbitrators’ bribery behavior.The fourth chapter,“Problems and Improvements in the Independence and Impartiality of Arbitrators in China”.China’s exisiting Arbitration Law has lots of flaw in arbitrator system,for example,There is no direct provision stipulating the arbitrators’ independence and impartiality obligations,as well as the arbitrators’ duty of disclosure.And also the grounds for challenge are not perfect,the arbitrators’ legal liabilities are not clear.The arbitration system is imperfect to operate only depending on arbitration rules rather than arbitration law.After all,the courts’ judicial review of arbitration can only be based on arbitration legislation rather than arbitration rules.Aimed at these problems,I think that Chinese Arbitration Law should first clearly stipulate the arbitrators’ obligation and criteria of independence and impartiality.Secondly,it should stipulate that the arbitrator should fulfill the obligation of disclosure.Then,it should apply both generalized norm andsamples mode on the grounds for the challenge.Finally,it should specify arbitrators’ limited immunity.