Issue Ii.docx

“Independence” means that an arbitrator must be free from any involvement or relationship with any of the parties. Arbitral proceedings usually involve more than a claimant, defendant and the tribunal. Indeed, the main protagonists in the procedure will usually be the parties' counsel rather than their clients. Does the independence requirement extend to relationships between counsel and arbitrator? The answer should be: “As a rule, yes!” Thus, one would normally expect arbitrators to also be independent of the counsel representing the parties. Therefore, if an arbitrator were to work in the same firm as one of the parties' counsel, this would usually be considered as grounds for challenge for lack of independence.1 Accepted in England, this peculiarity raises legitimate questions about independence in an international setting where parties, not used to this system, are seriously concerned about the independence of an arbitrator from the same chambers as the counsel.(9)2 JURISDICTION : [For instance, a construction contract may require all claims for varied or additional work first to be decided by an engineer before being referred to arbitration. If a claimant brings certain claims without asking or waiting for the engineer's decision, the respondent may argue that this failure means that the claims concerned were not properly submitted to arbitration and so were not within the jurisdiction of the arbitral tribunal. Similar issues have been tested in ICSID arbitrations, in which there is usually a requirement to notify disputes for the purpose of seeking an amicable settlement for a period before commencing an arbitration. Respondent states have often argued that certain claims fall outside of the originally notified dispute.] Pg no.336 redfern & hunter citation 154 (chap 5 )

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Standards and Procedures for Disqualifying Arbitrators ibid