Ensuring the impartiality and independence of arbitrators is indeed one of the main principles in resolving a dispute in the UK and in any other country. Both points are important components of a professional approach to the arbitration process.
However, when considering an application for the impartiality and independence of an arbitrator, lawyers representing the parties to the conflict often conduct research to find a suitable arbitrator. For an effective search, it is necessary to cover any possible personal, family, financial or professional connections of the arbitrators in order to anticipate possible bias in the case.
It often happens that the arbitrator is a representative of the legal profession. And the larger the company he is employed by, the greater the need to engage external search consultants. Such investigations may result in someone from an arbitration law firm of hundreds or thousands of its members advising a company belonging to the group of companies to which the arbitration party belongs. And then, without a doubt, the question of the arbitrator's impartiality will arise.
Let’s see how it may happen on a concrete case
Investigations into whether a party to a proceeding belongs to a group of companies with which one of the arbitrator's law firms had or has professional contacts often cause problems.
One such precedent is the recent decision by the Swiss Supreme Court to dismiss an appeal to set aside two decisions on the grounds that the chairman of the arbitral tribunal was not impartial because his law firm had provided legal assistance to companies belonging to the same group of companies. corporations on the other side of the arbitration proceedings.
It should be taken into account that international law firms are large and it is quite problematic to quickly establish a relationship between a law firm and a client.
In large law firms, it is likely that the arbitrator may be completely innocent due to ignorance that his company is handling the other party, which is actually quite possible in the case of very large law firms with offices in different jurisdictions.
Appointment of an arbitrator by the parties: pre-trial
The selection of arbitrators appointed by the parties is in fact made for various reasons. This may be the result of finding an experienced arbitrator but it is often due to personal friendships and expectations that the arbitrator will always be on the side of his or her appointee.
Such conclusions are sometimes completely justified, but in other cases it is simply the result of tactics. Returning to the original request, the question arises as to whether there is a way to avoid or reduce such problems arising from the appointment of arbitrators.
It is assumed that the source of the problem of impartiality is that the vast majority of arbitrators are engaged in other activities, often as lawyers. This means having, on the one hand, clients and, on the other hand, parties to the arbitration proceedings in which he/she acts as an arbitrator, who have many, even close, links. Therefore, all of these connections can interfere with the overall impartiality required of a professional as an arbitrator.
Before going to court to resolve a conflict, IQ Decision UK experts recommend looking at other methods. For example, dispute resolution through mediation in the UK and worldwide is now becoming increasingly popular. Practice has shown that this is an effective way to achieve a win-win result for both parties and maintain a constructive relationship in the future.