The impartial and independent composition of the international arbitral tribunal : a critical survey

Abstract

Globally the resolution of disputes is known for expensive costs and lengthy periods of time before a court reaches a decision. This position becomes even more complex where a person has to resort to a foreign country with a foreign legal system to resolve a dispute. International commercial arbitration provides a practical alternative to resolve disputes in the world of international trade. lnternational commercial arbitration can shortly be described as a private method of dispute resolution, chosen by the parties themselves as an effective way of putting an end to disputes between them, without recourse to the courts of law. It is especially aimed at resolving disputes in a manner which is fast, effective and less costly. Due to South Africa's recent re- entry to international trade, the field of international commercial arbitration is relatively new from a South African perspective. In the light of South Africa's continuous economical expansions and participation in international trade, the role of international commercial arbitration will become increasingly important. Some of the advantages of international commercial arbitration include that the parties to the dispute can choose the rules and procedures to apply in resolving the dispute. Fundamental to the enforcement of an international commercial arbitration award is the requirement that the arbitrators be independent and impartial. The independency and impartiality of arbitrators within the international context is also linked with the vested international and domestic right to a just and fair trial. Should there not be adhered to the requirements of independency and impartiality, one opens the door to a variety of risks within the international commercial arbitration process. The most important risk is that of the award not being enforced in a court of law due to a lack of either independency or impartiality. Within the framework of international commercial arbitration, there exist various rules and guidelines with regard to the process and procedures to be followed. The international commercial arbitration instruments include the UNCITRAL Rules of Arbitration of 1996, the UNCITRAL Model Law of 1985, the ICC Rules of 1998 and the LCIA Rules. All of these rules require the independent and/ or impartial composition of the arbitration tribunal especially with regard to the enforcement of the award. In the light of the increasing importance of international commercial arbitration, this study is concerned with the thought of the above mentioned international instruments' failure to provide clear and concise guidelines and measurements with regard to the effective establishment of an arbitral tribunal deemed to be independent and impartial. In this mini- dissertation it is aimed to provide some insight with regard to possible methods on which parties can rely to ensure that arbitrators appointed by them will be deemed to meet the expected requirements of independency and impartiality, despite the vagueness encountered in most of the international arbitration documents.