Is the Requirement for Arbitrators to be “Independent” Ever Really Possible Given the Small Pool of Qualified Arbitrators Available?

Abstract

In the light of the analysis it can be concluded that the issue of the potential bias of arbitrators often arises in the context of arbitration. It is because the arbitration is confidential and therefore the parties have to rely that the arbitrator will exercise their duty of disclosure. Therefore, the key issue concerning the independence of arbitrators centres around the principles of duty of disclosure and duty of confidentiality. The issue becomes even more complex given the fact that the number of available arbitrators is not indefinite and according to the statistics the pool of qualified arbitrators is relatively small in the UK. For this reason, it is not uncommon that the same arbitrator has overlapping appointments. The Halliburton decision did not provide sufficient clarity on this issue. A further clarity is necessary. One solution is that by way of developing soft-law in a form of a guidance that would provide a non-exhaustive list of circumstances where a disclosure must be made. A disciplinary body that would regulate the arbitrators’ appointments would be helpful in enforcing the soft-law instruments. This would help to further strengthen the principle of confidentiality given that the disputes over the arbitrators’ bias would be resolved out of court and thus preserving the confidentiality of arbitration. It can be concluded that the arbitrator’s profession is not yet sufficiently regulated and that similar disputes may arise in the future.