Independence and impartiality

Essential characteristics of the arbitrator at the time of the acceptance of his/her function and throughout tenure. The absence of these attributes may lead either to a challenge of the arbitrators, the setting aside of the award (cf Action to set aside), or a refusal to enforce the award. A lack of independence is demonstrated, according to the French jurisprudence, through “the existence of material or intellectual links, a situation which is liable to affect the judgment of the arbitrator by creating a definite risk of bias in favour of a party to the arbitration”. The arbitrator may be suspected of partiality primarily on the grounds of lack of independence, especially towards one party, but also because the arbitrator’s previous knowledge of the case may have led him to take a prior position that could be prejudicial to one of the parties; it may be also evidenced by the arbitrator’s behaviour during the proceedings if it shows clear bias in favour of one party. Some arbitration rules require the arbitrators to provide the parties with a statement of independence whereby they must disclose any facts or circumstances which might be of such nature as to call into question the arbitrator’s independence in the eyes of the parties in order to allow a possible challenge before the proceedings begin.