Should acting judges sit as arbitrators?

Should acting judges sit as arbitrators?

The question of whether acting judges can and should sit as arbitrators gives rise to a number of issues. 

In some jurisdictions, for example in Russia, acting judges are prohibited from sitting as arbitrators.  In other jurisdictions, for example in Sweden, there is no such restriction.  In England, acting judges can sit as arbitrators provided they have first obtained permission from the President of the Court.  In other jurisdictions the position is far from clear.  For example, in Delaware, a decision allowing a Chancery Court judge to sit as an arbitrator was subsequently held to be unconstitutional.

Even in those jurisdictions where judges are allowed to sit as arbitrators, the question remains as to whether judges should sit as arbitrators.  On the one hand, many argue that an acting judge is uniquely qualified to sit as an arbitrator.  Judges are well versed in the law and can be trusted to deliver a clear and reasoned award.  Others take the view that acting judges simply should not accept arbitral appointments on the basis that it is inconsistent with their public position as a judge.

The debate raises a wide range of questions.

Should a sitting judge accept fees for sitting as an arbitrator?  Will a sitting judge have sufficient time to devote to the arbitration?  Is there a danger that a sitting judge will exert too much influence over other members of the tribunal?

BLP, in conjunction with 4 New Square and the ICC, are hosting a panel discussion to debate these and other issues.

The panel speakers include:

  • Rt Hon Lady Justice Elizabeth Gloster (Vice-President of the Court of Appeal)
  • Patrik Schöldström (Swedish Judge and Associate Professor at the Stockholm Centre for Commercial Law)
  • Professor Oksana M. Kozyr (retired Russian Federation Supreme Commercial Court judge)

The session will be moderated by Iain Quirk (ICC United Kingdom Arbitration Consultant and Barrister at Essex Court) and Roman Khodykin (International Arbitrator Partner at BLP).  The panel discussion will offer an opportunity to hear the perspective of judges from three very different jurisdictions.  There will also be an opportunity to join the debate through a Q&A session and through live polling during the session.

Full details of the event and how to register can be found here.

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