Liability of the arbitrator

Under Venezuelan law, as in other jurisdictions, an arbitration agreement imposes to parties the obligation to refer present or future disputes to arbitration. Since an arbitration agreement is a legally binding agreement, the study of their obligations could be performed under the principles of the law of contract. The breach of the obligations derived from the arbitration agreement legitimizes and entitles the injured parties to a various set of remedies and opens a wide view on disputes resolution. These lines present a general overview of the topic from a Venezuelan Law's perspective.

Dubai, the commercial hub of United Arab Emirates has seen exponential growth in the past four decades. The mega and iconic projects and skyscrapers are the witness to the growth. What is more impressive is the openness of Dubai to commission a micro jurisdiction (Duba International Financial Center) with Common law principles amidst the Civil law jurisdiction that is widely being practiced within the GCC and even Middle-East region. The DIFC has its own courts based on Common law principles and also an arbitration centre in collaboration with London Court of International Arbitration.

In addition, Dubai has shown greater acceptance of arbitration as a mechanism to resolve disputes in construction and commercial industry. It’s a little secret that Dubai aspires to be an international arbitration centre with the likes of Paris, London, Singapore and Hong Kong. Dubai has the world class facilities and connectivity with most of the cities in the world and with billions of money is being invested in infrastructure and construction projects, and given the fact that construction industry is prone to have disputes, it is only logical to shape this city as a regional arbitration centre.

However, there has been questions about the enforcement of arbitral awards in this country given the uncertain nature of the judicial decisions in the past concerning the enforcement. Until this date, UAE doesn’t have its own arbitration law, although the draft is doing rounds for the past several years. Currently the arbitration is governed by the UAE Civil Procedure Code and it is safe to say that the CPC is cryptic and does not address all the issues that normally arise in an arbitration process.

In the past, attacks on procedural grounds of the arbitration awards were common and unlike the judges the arbitrators does not enjoy statutory immunity and hence it is prudent not only to ensure the awards are enforceable but also to ensure that the arbitrators are not personally liable. Despite clear rules stipulated by Dubai International Arbitration Centre, Dubai International Financial Centre and Abu Dhabi Centre for Conciliation and Arbitration Centre, the personal liability of the tribunal is still one of the most hotly debated topics in the industry.

However, recently the Dubai Court of Cassation handed judgments in two cases  confirming that the tribunals and the arbitrators are not personally liable. The case was initiated by a leading developer and it was against senior and reputed arbitrators who are very well known in the industry. The tribunal was appointed by Dubai International Arbitration Centre under DIAC rules.

Article 40 of the DIAC Rules of Arbitration provides that
“No member of the Tribunal shall be liable to any person for any act or omission in connection with the arbitration”.

Similarly the Article 24 of the DIAC Statute Rules states
“Neither the Centre nor any of its employees, members of the Board of Trustees, its Committees or members of any dispute settlement panel shall be held liable for any unintentional error in their work related to the settlement of disputes by the Centre.”

Despite such clear indication preserving immunity of the tribunal, these two cases went all the way up to the apex court and thankfully the Cassation Court upheld the arbitrator immunity. These two case laws are highly important for arbitrator fraternity.

In this article, the author is intending to examine the relevant clauses in UNCITRAL Model law and UAE Civil procedure code for provisions related to arbitrator immunity and liability. Further the rules of both Dubai International Arbitration Centre and Dubai International Financial centre would be examined to get clarity on this issue. The facts of the case law and judicial verdict will be analysed in brief and finally it will be summed up with the current legal position with respect to arbitrator immunity.

Traditionally, the doctrine of quasi-judicial immunity has insulated the arbitrators from liability for their misconduct.  The only remedy currently available for arbitrator misconduct is vacatur of the tainted award, a remedy available only under specific circumstances and of rather limited effectiveness, especially considering the time and experience invested in the failed arbitration proceedings.  Should arbitrators be held liable for their misconduct in situations such as those mentioned above, or should judicial immunity continue to protect them from liability for their misconduct?  In order to answer this question, it will be necessary to examine how comparable is the position of the arbitrator and judge.  Furthermore, it must be determined how compatible quasi-judicial immunity of the arbitrators is with their contractual relationship to the parties. Finally, if we conclude that the arbitrators should be liable in contract, should they also be liable in tort? On a number of occasions, courts have opined that the “integrity of the arbitral process is best preserved by recognizing the arbitrators as independent decision-makers who have no obligation to defend themselves to a reviewing court.”  It has also been argued that arbitral immunity is necessary “to guarantee decisional finality, to protect arbitral independence and to facilitate the recruitment of arbitrators.”  The following discussion will question these notions and join the voices arguing against absolute arbitrator immunity.

Arbitrators act in a quasi-judicial manner, which is defined by the Black’s Law Dictionary (9th Edition) as “an act performed by a judge who is not acting entirely in a judicial capacity”. Nonetheless, an arbitrator assumes a certain level of trust and responsibility because their conduct plays a vital role in developing the public’s perception of the arbitral process. According to a Dutch Court, arbitrators are comparable to judges and should be able to judge freely. Thus, the decision of an arbitrator is entitled to the utmost respect and weight. However, this rule is subject to limitations; for instance, where the arbitrator has engaged in misconduct or compromised the proceedings. Arbitral misconduct exposes not only the parties but also the arbitrator to inevitable consequences.

Read the full article at https://pakarbitrationlaw.com/article/pakistans-approach-towards-the-misconduct-of-an-arbitrator/.