Ethical Rules of Conduct in Arbitration

Arbitration is believed to be one of the ancient mechanisms of alternative dispute resolution. In Collins v. Collins, Romilly M.R. defined arbitration as a “reference to the decision of one or more persons, either with or without an umpire, of some matter or matters in difference between the parties.” Arbitration as an alternative dispute resolution mechanism is considered to be neutral, confidential, cost-effective, and when compared to litigation, capable of enabling settlement between the parties. Historically, arbitrators were guided by the principle of internal ethos. A fundamental issue with regards to the arbitral process in International Commercial Arbitration is preserving the independence and impartiality of the arbitrators. Independence and impartiality are different terms but more often, they are used interchangeably. An impartial arbitrator is not biased in favor of a party or prejudiced against a party or its case whereas an independent arbitrator does not have any financial, professional, or personal relationship with a party or its counsel. Code of conduct and ethics of arbitrators have become an important topic for public debate today. There is a range of sources that set out the ethical obligations of arbitrators. Most of the national arbitration laws provide for the ethical obligations of arbitrators. In national courts, where a challenge to awards and arbitrators are brought, the courts via several decisions have guided with regards to various standards and how they apply in practice. Various specialized codes and rules are also in force to guide and govern the conduct of arbitrators. Moreover, the guidelines enacted by the International Bar Association (IBA) are considered to be well reflective of international practice. The existence of so many sources of arbitrator’s obligations has, consequently, resulted in alteration of application of, say, an obligation of impartiality with the change in stage and context. Apart from the abovementioned obligations, arbitrators are obliged to conduct the arbitration in accordance with the arbitration agreement, they should be competent and diligent, and they are obliged to maintain confidentiality. Even though all arbitral institutions have not developed ethical codes for arbitrators, they all rely on certain rules that impose ethical obligations on arbitrators.