OBLIGATIONS OF AN ARBITRATOR
The main duty of an arbitrator in international arbitration is to ensure that arbitral proceedings are carried out impartially and efficiently. This forms the basis for all other obligations owed by the arbitrator. The duty owed by the arbitrator terminates upon the successful determination of the dispute. The manner of relationship that exists between the arbitrator and the parties determines the specific duties owed by the arbitrator in the arbitration proceedings.
Two major schools of thought approach the relationship between the arbitrator and the parties from different perspectives. One school argues that the relationship is contractual in nature and formation while the other maintains that it is procedurally quasi-judicial.
The contract theory school opines that the relationship between the arbitrator and the parties is contractual in nature because it is premised on the agreement of the parties. When the arbitrator accepts the appointment, it is called receptum arbitrii meaning receptum of the arbitrator.
Bernard, a contemporary member of this school of thought is of the opinion that international arbitration is ‘a contract sui generis, governed by the rules appropriate to it and which must be dealt with by taking into account both the principles of the contract and the particular nature of the function exercised by the arbitrator.’ What this means is that the obligations and duties of the arbitrator can be inferred from the contract and are governed by the principles of the contract. What this implies is that the arbitrator is viewed as a professional who is duly remunerated and therefore, there is the existence of mutual contractual obligations.
Following the Contract theory, the obligations that are agreed on and contained in the agreement are binding on the parties. There are however implied conditions such as the duty to act in utmost good faith and the duty to conduct the proceedings according to the extant laws.
Article 35 of the International Chambers of Commerce Rules of Arbitration provides that the arbitrator also has a duty to ensure that the award given is valid and not open to frivolous contest. This includes a duty to conduct the proceedings impartially, without collision with any of the parties. He is also expected to carry out his duties within the stipulated time or where none is agreed on, a reasonable time without unnecessary delays, unreasonable resignation, or adjournments.
The other school of thought that views the role of an arbitrator as akin to that of a Judge, highlights that the obligations of an arbitrator are similar to a Judge and not just based on a contract that exists between the parties. He is often described as a “private Judge” with the discretion to accept or reject disputes referred to him. The arbiter’s obligations also include impartiality and confidentiality. This provides that an arbitrator is not expected to privately meet with any of the parties or prematurely discuss the outcome of proceedings with a party. The arbitrator is not expected to receive secret or extraneous fees from the parties or to intentionally delay the proceedings. The arbitrator is not even expected to randomly abandon the dispute halfway into the proceedings or conduct himself in a manner that causes delay.