Ensuring the arbitral tribunal’s independence and impartiality
Produced in partnership with Clifford Chance
Ensuring the arbitral tribunal’s independence and impartiality

The following Arbitration guidance note Produced in partnership with Clifford Chance provides comprehensive and up to date legal information covering:

  • Ensuring the arbitral tribunal’s independence and impartiality
  • Issues of independence and impartiality
  • Points to consider when nominating an arbitrator
  • Examples of provisions in institutional and ad hoc rules

Issues of independence and impartiality

The principle that a court of law should be independent and impartial is firmly embedded in all legal systems and major international human rights instruments. Similarly, it is a core principle of arbitration that arbitrators be independent and impartial of the parties to the arbitration at the time of appointment and for the duration of the proceedings. However, this principle exists in parallel to the peculiar characteristic in arbitration that the parties have the right to appoint an arbitrator of their choosing.

Under most leading institutional and ad hoc arbitration rules as well as national arbitration laws, a party’s choice of arbitrator may be rejected or challenged because that arbitrator is not independent or impartial. An arbitrator’s lack of independence or impartiality is grounds for:

  1. following nomination, an arbitral institution refusing to appoint the chosen arbitrator

  2. following appointment, an arbitral institution replacing the arbitrator following a challenge by the other party

  3. following appointment, national courts removing the arbitrator following an application from a party (eg, pursuant to section 24(a) of the Arbitration Act 1996 (AA 1996))

  4. national courts refusing recognition or annulling an award under national laws, as well under the public policy requirements of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) (arts 5(1)(d) and 5(2)(b))

In