Alternative Dispute Resolution - Arbitration & Mediation - Essay Example

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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…
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Download file to see previous pages 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 ...Download file to see next pagesRead More
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