Independence and Impartiality of an Arbitrator - Essay Example

?Arbitration The terms independence and impartiality of an arbitrator frequently used synonymously to point out the lack of favoritism on the arbitrator’s part. Although the terms used to, show lack of bias, there is a difference between them. The verification of independence is objective while impartiality is a state of mind, which involves judgment. In spite of being dissimilar, the connected between the two seems extricable such that they appear to be two sides of a coin. All laws, which based on assessment of bias, use these two notions together. The laws that do not employ the two terms are the English Arbitration Act and the International Chamber of Commerce. Independence is the lack of any level of association involving the party or parties and the arbitrator or association involving the object of misunderstanding and the arbitrator that would make it unsuitable or the arbitrator to arbitrate among the parties to the dispute. This definition of independence, therefore, is two fold: the lack of a set approach in respect-involved issue by the arbitrator and the lack of any individual association with the parties to the dispute. The impartiality and independence of arbitrators needs safeguarding since the process maybe used to delay justice. Justice McCarthy in R v Sussex stated that justice should be done and seen as done. There exist test to determine the existence or non-existence of bias in an arbitration process. The first test is whether, in the initial point, there was the risk bias and second if, a reasonable individual would have suspected bias in the situation. The enactment of the Human Rights Act of 1998 done in the United Kingdom and it came into operation on October 2000. The intention of the Act was to give an effect to the containment of rights in the European Convention of Human Rights. The sixth article of the act provides that everybody be entitled to a just hearing by an impartial and independent body recognized by law. Accordingly, The court in its decision in Medicaments and Related Classes of Goods, Re, decided one month afterward, took into consideration the Strasbourg jurisprudence in the determination of independence and impartiality of a body. It came into the conclusion that the test in Gough was no longer suitable because it laid emphasis on the view of the court in relation to the facts. The Court of Appeal made a suggestion of a modest modification to the test established in Gough. The applicable test was if the ascertained circumstances by the court would result in a knowledgeable and fair-minded observer to reach a conclusion concerning the real possibility of a biased tribunal. The English Arbitration Act inquires if the conditions in the situation may give lead to reasonable doubt concerning the independence or impartiality of the arbitrator. The IBA guidelines on conflicts of interest in international arbitration meant to make a clear assessment of impartiality and independence by the provision of a meticulous guidance on application of the same in practice. In this regard, there are three lists devised to achieve the purpose, which are the, orange, the green and the red lists. The lists try to try to mark general circumstances where bias suspected in harmony with their relative potentiality to give rise to reasonable doubts concerning the arbitrator’s independence and impartiality. In that, view the red list comprises of adverse occasions of challenges faced. The red list has two sections the situations that can be waived and those that cannot be waived. If the situation of a case falls within the situation that cannot be waived on the red list, the parties involved do not posses the independence to relinquish their opposition to the impartiality. The situation is so since in some circumstances, the interest of the public necessitate that proceedings of the arbitration halted notwithstanding non-objection of the parties. The position is like the circumstances, which give rise to automatic prohibition under the prevailing English law. The part that has the flexibility to a waiver comprises of occasions that point out clear bias but the parties have the right to waive their oppositions to the position. The orange list, on the other hand, deals with the intermediary circumstances that may result in reasonable doubts concerning independence of the arbitrator. On the other end of the scale, the circumstances deemed by no means to give rise to the hesitation of bias contained in the green list. The examples of circumstances in this list include the lapse of a period, considered to fall into the category of the green list. The IBA Guidelines move along to include that the lists are not conclusive and are anticipated to change in the future. The broad principles in both the IBA guidelines and the English Arbitration Act use the same test on whether the prevalent conditions may give rise to reasonable doubts concerning the impartiality arbitrator or his independence although the attached meaning of justifiable doubts is not alike. In accordance to the IBA Guidelines, uncertainties are reasonable if a third party who is knowledgeable and rational and would come to the inference that there existed a possibility that issues other than the virtues of the case can prejudice the arbitrator. The situation even though the primary branch of the check is similar to the prerequisite of a knowledgeable and rational perspective of an observer as per the check in the case of Porter v Magill, the next half diverges from the test in the English law by necessitating a real likelihood, in place of a real possibility of prejudice. The broad principles believed to alter the use of the lists are in themselves not entirely in agreement with the English domestic law. The guidelines of the lists contents at times disagree with the conclusions recognized throughout cases. An example is the green list, which considers the publication, by the arbitrator, of broad views relating to the subject as not comprising obvious prejudice. On the other hand, in the case of Locabail (UK) Limited v Bayfield & Others, the court concluded that on the particulars of the publication of announced observations concerning matters normally gave rise to an actual risk of prejudice according to a nonprofessional. Putting the state of affairs in the green list means that the state of affairs requires some ideal analysis on the facts. Even where an individual was to apply the broad principles to the state of affairs, there would have arisen a real possibility of it ensuing in an obvious prejudice. The position would also be divergent to the position in English law. In a position where the arbitrator has openly advocated for a precise situation, concerning the case of the arbitration goes into the orange list. According to the case of R. v Bow Street Metropolitan Sti-pendiary Magistrate Ex p. Pinochet argued a position like this calls for the unchallenged barring of the arbitrator. The arbitrator, in such a situation, has a possibility of facing disputations because he had a direct connected with an organization that had an interest in the abolition of the applications of extra-judicial execution and torture. Given the assumption of Senator Pinochet involvement in similar activities, in Chile, the holding was that permitting the judge to carry on listening to the case against him resulted in allowing him to judge his own case. The provisions of the London Maritime Arbitrators Association (LMAA) require that arbitrators have a duty to proceed impartially and fairly among the parties to the case at all times. The rules the International Chamber of Commerce including the London Court of International Arbitration have requirements of impartiality of the arbitrators. The two institutions provide for the requirement that each arbitrator must sign a declaration to the effect of their independence. The guidelines on conflicts of interest concerning international arbitration contained in the International Bar Association IBA. Mediation Mediation is the process of voluntary participation or an alternative dispute resolution process, which has an aim of constructing an agreement through the involvement of a third who is a neutral to the case. The third party acts as a catalyst or facilitator to ensure the efficient communication, generation of options and issue clarification by the conflicting parties. By not going to court, the disputing parties save the relationship between themselves intact and a considerable amount of money and time on the process of litigation. The Law on Mediation notes that its intention is to get rid of legal openings in the directive of mediation in line with European Union legislation on mediation and addressing all issues relating to mediation in a single law. The 25th recital of the 2008 European Community Directive on Mediation provides that the states who are members should support the stipulation of information to the public on the contact of mediators and associations providing the services of mediation. The states should also support legal practitioners in informing their clients of the opportunity of the mediation process rather than the court process where it is applicable. The Irish Judicial Separation and the Family Law Reform Act of 1989 brought about the initial legal responsibility in Ireland urging solicitors to give advice to their clients in matters of judicial separation to consider mediation, reconciliation in making separation agreements. This Act also requires solicitors to provide their clients with the names and addresses of individuals competent to assist effect a compromise between estranged spouses. The act ensures the provision of the names and addresses belonging to organizations and individuals qualified to provide a mediation services. Incase solicitor representing a respondent or applicant fails to endorse the provision of advice to the client regarding these opportunities the court reserves the authority to delay the proceedings for a period it deems fit in order to allow the solicitor and client. The Family Law and Divorce Act of 1996 enforce a like obligation on the solicitors in applications relating to divorce. In relation to these provisions, the 1996 and 1989 Acts seem to have had minimal force on the employment of mediation by parties seeking divorce or separation and both clients and the solicitors take the expression of skepticisms by some judges in relation to the option of mediation seriously. The 2007English Solicitors‘Code of Conduct in Rule 2.02(1) (b) on client care also stipulates a responsibility on the part of solicitors to award the client a unambiguous clarification of the matters concerned and the alternatives accessible to the client. Paragraph 15 Rule 2 provides guidance of facts that taken into consideration on the available options by the client. Rule (2.02(1) (b)), provides that if the matter in issue relation to a disagreement between the client and a third person there should be a discussion as to whether mediation or any other alternative form of dispute resolution process can more appropriate be beneficial as compared to litigation. There are costs and sanctions in case a party declines the use of an alternative dispute resolution mechanism. The general position regarding civil claims is that the courts should be allowed, either at the application of a party to the claims or on the courts own initiative to make an array necessitating the parties to the dispute to take into consideration the resolution of their misunderstandings by use of mediation. The basis of this recommendation was on the Rules of the Superior Courts of 1986 Order 63A, r.6 (1) (b) (xiii). The act provides that the court may on its own agenda or on the application of any of the parties to the dispute adjourn the issue before the court for a period not more than 28 days for purposes to allow the concerned parties to consider the use of mediation. Similarly, the 2008 European Community Directive on Mediation at Article 5.1 provides that any court before which a claim presented may, when suitable and concerning every circumstance of the case before it, request the parties to employ mediation in order to facilitate settlement of the dispute. The act goes ahead to state that the court may urge the parties to have an information session regarding the use of mediation if such sessions are easily available and held. The other source of mediation is the case law, case law used as a reference in matters involving mediation to portray the effectiveness necessity and efficiency of mediation. In Catamount Slate Prods., Inc. v. Sheldon, in reversing the trial courts and declining to put into effect the supposed oral mediated arrangement where the parties intentions to be bound by the agreement not recognized due to the agreement not signed in effect to mediation orally discussed by the parties that gave an expression to the effect that the mediation would not bind either of the party unless condensed to a final settlement agreement by the parties. There was also letters with the implication that agreement was not absolute, and evidence regarding of an international agreement remained to be done following the winding up of the mediation. In Chantey Music Inc. v. Malaco Inc. the court, affirming the enforcing of a copyright arrangement mediated regardless of the plaintiff’s allegations of coercion and duress. In the claimed situation, the plaintiff attended and had the representation of a counsel throughout the whole mediation and the acknowledgment of lawyers, the opposing party and the mediator, exposed arms-length bargain process and absence of any coercion, and availability of unambiguous communication of all agreement conditions to the plaintiff. The situation is also being notable in Ford v. Ford, the trial court that affirmed the enforcement of a mediated divorce arrangement recited orally on the confirmation by the mediator. The situation affirmed regardless of claims by the husband that his poor health barred his perceptive of the cost of his actions, where transcript of the settlement indicated husband was an active participant in the mediation counsel represented him, and there lacked evidence to show he was in pain or else debilitated through the mediation process. Refusal to use ADR The position is that the courts are required to manage cases actively, and this implies the encouragement of the courts to use alternative methods of dispute resolution by the parties to a case in situations the court deems the alternatives fit. This position, therefore, implies that a court may give the suggestion of using an alternative method of dispute resolution, but the court cannot force the parties to use the process. However, in deciding on the costs of the suit the court takes into consideration the willingness of parties to opt for alternative methods. To support this position in Rolf v De Guerin the Court of Appeal emphasized the situation that behavior of parties in a suit in the course of litigation, particularly in declining to use mediation or attempting any other form of Alternative Dispute Resolution. The consideration of the parties conduct be used the decision of the award of costs upon completion of the case. English law does not force the use of mediation and it the discretion of the parties to employ it. The convenience of the use of mediation emphasized in the case of Fitzroy Robinson v Mentmore Towers. The court in this case stated that the exclusion of mediation should not be exclusively on the foundation of suspected deception and the perception that the mediation process would have presented the parties the chance to resolve, without forcing; the court to conclude that one of the witness was a liar. The role and shape of mediation is changing. The risks of associated with failure to take into consideration mediation can be costly and harmful to reputations. Bibliography A Sttit, Mediation: A Practical Guide, Cavendish, 2004. A Zack, Arbitration in Practice, Cornell University Press, 1984. E M Francis, Arbitration: Preliminary Publication of Recommendation & Survey on the Law and Practice of Arbitration in England & Wales FEM Publishing, 1988. E Shafer, H Verman & I Chritophe, ICC Arbitration In Practice, Kluwer Law International, 2005. F Ferrari & S Kroll, Conflict of Laws in International Arbitration Walter de Gruyter, 2010. G Born, International Commercial Arbitration, Kluwer Law International, 2009. H Sullivan, Mediation: The function of thought, W. F. Draper, 1871. Halifax, LW Frederick & Leeds, In Arbitration: The Lord Mayor, Aldermen and Citizens of the City of Leeds and the Honourable Edward Frederick Lindley Wood : Minutes of Evidence 1909. L Boulle & M Nesic, Mediation: Principles Process Practice, Tottel Publishing, 2001. R A Baruch & J P Folger, The Promise of Mediation: The Transformative Approach to Conflict, John Wiley & Sons, 2005. S C Bernnett, Arbitration: Essential Concepts, ALM Publishing, 2002. V F Butler, Mediation: Essentials And Expectations, Dorrance Publishing Co., Inc., 2004. Read More