In what has been described as a ‘golden age’ of international arbitration, present international arbitration practices have for some time enjoyed an unparalleled period of growth and proliferation. With the growing uptake of the UNCITRAL Model Law by states, the legal environment in which arbitrations take place has also become increasingly accommodating. Courts around the world are according greater tolerance and respect to arbitration, by treating arbitration as a natural and necessary adjunct to a state’s dispute resolution processes, rather than as a usurper of judicial authority.

Notwithstanding these positive trends, it is important that we continue to examine the areas in which there is still room for reform and development. One such area is arbitrator conduct in international arbitrations and this article discusses the existing framework on which further development can be made.

A code of conduct for arbitrators

As a starting point, it is worth mentioning that the overwhelming majority of arbitrators perform commendably in navigating through the procedural minefield often created by the parties, and arriving at the correct destination on the merits of the dispute. Evidently, growth in arbitration is, at its heart, party-driven. Changes to the legislative regimes, and more permissive attitudes by courts no doubt play a role in making arbitration more attractive to contracting parties. However, there are more arbitrations because more parties have chosen arbitration as their preferred dispute resolution mechanism, which speaks volumes as to the quality of justice that is delivered and commercial parties’ faith in the arbitration profession.

However, in the absence of judicial appeals, there is a need for arbitrators to get it right the first time. The disputes that find their way to arbitration are increasingly high value and complex, especially as institutions develop procedures to enable consolidation of disputes arising out of related contracts or involving multiple parties. Principles of natural justice can also compel arbitrators to give more attention to seemingly unmeritorious applications than would a judge. There is indeed a heavy responsibility that rests on the shoulders of arbitrators.

Jul-Sep 2014 issue

Clayton Utz