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Standards and Procedures for Disqualifying Arbitrators
"challenge of arbitrator" Christopher Koch
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Document information I Introduction
The right to an impartial and independent judge also exists in arbitration. Indeed, the mere
Publication fact that parties agree to settle their disputes by a private adjudicatory mechanism does not
Journal of International deprive them of the protections universally recognized as a fundamental human right. (1)
Arbitration Because arbitration is a form of adjudication, albeit a private one, it is important that the final
outcome be the result of an impartial process in which all sides have been fully heard. Not only
must the procedure be conducted fairly, but the parties, particularly the one losing, must also
Bibliographic reference perceive it as such. As Lord Hewart said: “it is not merely of some importance but is of
fundamental importance, that justice should not only be done, but should manifestly and
Christopher Koch, 'Standards undoubtedly be seen to be done”. (2) For parties to accept the outcome of an arbitration, even
and Procedures for if it runs against them, they must be confident that those who sit in judgement do so fairly and
Disqualifying Arbitrators', with an open mind.
Journal of International What happens if this trust is compromised, either by the action or inaction of the tribunal, or
Arbitration, (© Kluwer Law because of one or several of the arbitrators? Court procedures allow for the recusal of judges
International; Kluwer Law under certain circumstances. Similarly, the arbitral process provides means to remove
International 2003, Volume arbitrators from a tribunal if the circumstances show that he or she can no longer be
20 Issue 4) pp. 325 - 353 considered impartial or independent of the parties. This process is known as the
“disqualification” or “challenge” of arbitrators. (3)
Although the disqualification procedure is a necessary escape valve to guarantee the integrity
of the arbitral process, at the same time it is also a device which in the hands of unscrupulous
parties can be used to sabotage or impede an arbitration.
P 325 Challenging a member of the tribunal disrupts an ongoing arbitration because it shifts the
P 326 focus away from the object in dispute onto the tribunal itself. It is in this context that the
parties' choice of the type of arbitration or their choice of rules becomes important. If an
arbitration is conducted under institutional rules, the process for disqualifying an arbitrator
will normally be supervised and conducted by the institution. This institutional oversight may
go a long way in reducing the disruption to the arbitral process. However, if the arbitration is
ad hoc, it may be that parties and arbitrators are left to their own devices and that the courts
of the place of arbitration must resolve the resulting disruption of the arbitral process. (4)

II Standards for Disqualification

As stated above, an arbitral tribunal must not only be fair-minded, but also be perceived by
the parties as such. When speaking about the standards that arbitrators must maintain, the
most commonly referred to terms are “independence” and “impartiality”. (5) For example,
Article 7 of the ICC Rules of Arbitration states:
Every arbitrator must be and remain independent of the parties involved in the arbitration.
(emphasis added)
whereas according to the LCIA Rule 5.2:
All arbitrators conducting an arbitration under these Rules shall be and remain at all times
impartial and independent of the parties; and none shall act in the arbitration as advocates for
any party. No arbitrator, whether before or after appointment, shall advise any party on the
merits or outcome of the dispute. (emphasis added)
Article 3.1 (Elements of Bias) of the 1986 IBA Rules of Ethics for International Arbitrators
explains the difference between the terms as follows:
The criteria for assessing questions relating to bias are impartiality and independence. Partiality
arises where an arbitrator favors one of the parties, or where he is prejudiced in relation to the
subject-matter of the dispute. Dependence arises from relationships between an arbitrator
and one of the parties, or with someone closely connected with one of the parties. (emphasis
added)
Does that mean that an arbitrator appointed by the ICC is bound to less stringent standards
because he or she has only to be independent while the LCIA arbitrator must not only be
independent but also impartial? (6) Let us look at these two notions and see how they
interrelate, or if they exist as separate standards for arbitrators.
P 326
P 327
A Independence

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 “Independence” means that an arbitrator must be free from any involvement or relationship
with any of the parties. An arbitrator who has acted or continues to act in some professional
capacity for one of the parties in the dispute will certainly not pass the independence test.
Similarly, if an arbitrator were to be materially interested in the financial fortunes of one of
the parties involved, i.e. by owning shares in that company, the “independence” standard
would not be met and that person could be disqualified from being an arbitrator. Nor would an
arbitrator with family ties or another emotional connection to one of the parties be considered
“independent”.
Independence is said to be an “objective” fact-based standard to evaluate whether an
arbitrator is fit to do the job. However, the independence standard is not as cut and dried as it
might appear. For example, let us assume that five years prior to the arbitration, someone in
the arbitrator's law firm assisted one of the parties with a tax issue in a wholly unrelated
matter. It was a one-time service that generated negligible fees and there has not been any
other contact between that firm and the party since. Is the arbitrator independent? The answer
will depend from whose perspective the question is being addressed. The potential arbitrator
may well consider himself independent and may never have heard of either of the parties.
However, the parties, or one of them, may see it differently, particularly if the fact has not been
disclosed to them before. Again, justice must not only be done but it must be seen to be done!
Thus, what looks like a fairly objective standard turns out to also have a strong subjective
component. (7)
Looking at “independence” tempts one to ask: “Independent of whom?” Focusing only on the
relationship between a party and an arbitrator may not be enough. Arbitral proceedings
usually involve more than a claimant, defendant and the tribunal. Indeed, the main
protagonists in the procedure will usually be the parties' counsel rather than their clients. Does
the independence requirement extend to relationships between counsel and arbitrator? The
answer should be: “As a rule, yes!” Thus, one would normally expect arbitrators to also be
independent of the counsel representing the parties. Therefore, if an arbitrator were to work in
the same firm as one of the parties' counsel, this would usually be considered as grounds for
challenge for lack of independence. (8)
P 327
P 328
There is, however, an exception to this rule. In England, barristers who work in the same set of
chambers are considered independent of one another even though they may be sharing offices
and expenses. Barristers sharing chambers are not partners because they do not share profits
or the risks of doing business. Thus, barristers of the same chambers do appear in court on
opposite sides of the same case and one finds them sitting as arbitrators in cases where a
colleague from the same chambers may be advising a party. Accepted in England, this
peculiarity raises legitimate questions about independence in an international setting where
parties, not used to this system, are seriously concerned about the independence of an
arbitrator from the same chambers as the counsel. (9) However, even the French courts have
held that in the case of barristers, belonging to the same chambers will not in itself be
sufficient indication of an arbitrator's lack of independence. (10)
While, as a general principle, arbitrators, like judges, should be independent from the lawyers
representing the parties, the rule is applied less strictly when the former are concerned. In one
case involving the independence of a judge in a criminal matter, the Swiss Supreme Court
(Tribunal Fédéral) held that the fact that the trial judge was a personal friend of counsel for the
accused did not compromise his independence. Interestingly, the court found that, had they
been enemies, the verdict might have been different. (11) Friendships and close personal
relationships are a part of the fabric of any organized human society. This is also true in the
world of international commercial arbitration. If the world as a whole is becoming a global
village, the “global arbitration world” has always been one. The arbitration village is peopled
by a relatively few highly specialized practitioners who tend to congregate at the same
conferences and act in different capacities in arbitral procedures. In the “arbitration village” it
is therefore quite often that persons acting as counsel for a party may be very well acquainted
or even friends with one or several of the arbitrators sitting on the tribunal. Generally, this in
itself would not be considered a ground for disqualifying an arbitrator. However, should two
practitioners often appear together in the same arbitrations either as counsel or as arbitrators,
it may be an indication that these individuals systematically appoint each other and,
therefore, may no longer be independent of one another.

B Impartiality
As suggested above, impartiality deals with the arbitrator's mental predisposition toward the
parties or the subject matter or controversy at hand. It is the interior frame of mind that the
arbitrator brings to the reference. Impartiality is therefore referred to as a “subjective”
standard.
P 328
P 329
The English Arbitration Act 1996 allows parties to petition the courts to remove an arbitrator “if
circumstances exist that give rise to justifiable doubts as to his impartiality”. (12) English courts
have also held that arbitrators and judges must adhere to the same standard of impartiality.
(13) The English courts have recently had to deal with a number of cases regarding judicial or
arbitral impartiality. One of the more famous ones involved Senator Pinochet, the ex-dictator
of Chile, against whom an international arrest warrant for crimes against humanity had been

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 issued by a Spanish judge. The House of Lords had to decide whether or not to grant the ex-
dictator immunity from prosecution. In a first decision the House of Lords narrowly voted
against immunity. After publication of the decision, it transpired that one of their Lordships
had close links to Amnesty International. This was considered by the House of Lords
tantamount to being a “judge in one's own cause” and sufficient grounds to re-decide the case.
(14)
The English courts apply two tests to ascertain impartiality. The first is known as the “actual
bias” test. Actual bias is hard to prove and practically never invoked. The second is an
“apparent bias” test. This test is based on facts and circumstances, which would indicate that
there might be grounds for bias. Since 1852, the mere fact that a judge or arbitrator had a
personal interest in the outcome of the case sufficed to disqualify him or her because he or she
would be judge in his or her own cause. The test was formulated in the Dimes case. (15) Lord
Cottenham, then Lord Chancellor, owned a substantial holding in one of the parties appearing
before him. He was disqualified on the common law principle that “no man should be judge in
his own cause” even though the court found that “no-one could suppose that Lord Cottenham
could be in the remotest degree influenced by the interest that he had in that concern”. (16)
Apparent bias also exists if the facts or circumstances are such that one may be justified in
being suspicious about the impartiality of the judge or arbitrator. The test has been formulated
in terms of the existence of a “real danger of bias.” The Court of Appeal found that:
[T]he Court should ask itself whether, having regard to the relevant circumstances, there was a
real danger of bias on the part of the relevant member of the Tribunal in question, in the sense
that he might unfairly regard (or have unfairly regarded) with favor or disfavor the case of a
party to the issue under consideration by him. (emphasis added) (17)
This is still the standard favored by the English courts in determining whether the facts show
that a judge or arbitrator is apparently biased.
P 329 AT&T v. Saudi Cable (18) is an interesting illustration of both “independence” and “impartiality”.
P 330 It involved, first, a challenge against the Chairman of an ICC arbitral tribunal before the ICC
International Court of Arbitration for lack of independence and, then, an application before the
English courts to remove him and set aside awards under section 23 of the English Arbitration
Act 1950 for apparent bias and misconduct. (19)
The facts were as follows. At the beginning of the 1990s, the government of Saudi Arabia
tendered for bids for the improvement of the country's telecommunications system. The
project was worth around US$4.5 billion. Among the bidders was a Canadian company called
NORTEL, as well as AT&T jointly with Saudi Cable Company and several other
telecommunications companies. The AT&T and Saudi Cable team won the contract. In their
Pre-Bid Agreement they had agreed to negotiate a final commercial contract if and when the
project was awarded to them. However, once AT&T obtained the contract the partners fell out
because they could not agree on the terms of the final contract. In 1995, AT&T filed an
arbitration claim under the ICC Rules against Saudi Cable, demanding that the Pre-Bid
Agreement be declared terminated and that it had no further obligations towards Saudi Cable.
Saudi Cable counterclaimed, alleging that AT&T had violated its duty to negotiate in “good
faith”.
The Tribunal was constituted and the Chairman appointed by agreement between the parties.
The Chairman, a highly respected arbitrator and lawyer, filed a statement of independence as
well as a CV, in which he listed his past and present achievements, directorships and other
personal information he believed to be relevant. Two years after the arbitration had
commenced and the Tribunal had issued two partial awards, the first on the applicable law
and the second deciding that AT&T had violated its duty to negotiate in good faith, AT&T found
out that the Chairman had not indicated on his CV that he was also a director and shareholder
of NORTEL, the unsuccessful bidder for the Saudi contract. The omission was not intentional
but was due to a secretarial error.
AT&T first challenged the Chairman under Article 2.8 of the 1988 ICC Arbitration Rules, alleging
that he had violated his duty to disclose facts which, in the eyes of the parties, might be of
such a nature as to cast doubt on his independence. (20) This violation did cast sufficient
doubt as to his independence to warrant his removal. Moreover, as a director of NORTEL, a
P 330 direct competitor of AT&T, he was indirectly interested in the outcome of the case, because if
P 331 AT&T lost the case, NORTEL would indirectly benefit. The ICC rejected the challenge without
giving reasons. However, one can imagine that the ICC Court felt that requiring arbitrators also
to be independent of the competitors of the parties before them might be stretching the
concept of independence a little too far.
Because London was the place of arbitration, AT&T applied to the English courts under section
23 of the English Arbitration Act 1950 to have the Chairman replaced and the partial awards
issued by a unanimous tribunal set aside. As the issue arose out of an ICC arbitration and under
the ICC Rules, the ICC's decision on the challenge was “final”. The High Court had, thus, first to
decide whether it had jurisdiction to review the matter. The court found that, since the ICC was
concerned only with “independence”, it could review the facts to determine whether there was
“apparent bias” or misconduct on the part of the arbitrator. The Court of Appeal did not agree
that English courts had to defer to the decisions made by an arbitral institution and held that
they could freely review whether the arbitrator was impartial or had misconducted himself in
such a manner as to warrant replacement and setting aside of the awards. (21) However, on the

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 substance of the matter, both courts agreed that there were no grounds for a finding of
“apparent bias” or misconduct on the part of the Chairman.
Bias or partiality may not only result from an arbitrator's relationship with one of the parties or
a party's counsel, it can also be a function of an arbitrator's prior involvement in a similar case,
or his previously published opinions. In complex disputes it is not uncommon for arbitrators to
be appointed by parties to sit on two or more panels in closely related cases. This may happen
in disputes, which arise out of large industrial or infrastructure projects and which involve a
chain of interrelated contracts. Here, a party may be involved in two or more different
arbitrations, based on different contracts with different contracting parties but in a dispute
arising out of the same facts and legal provisions. Thus, in a construction case, the owner may
have a dispute against the contractor who, in turn, may have a claim against a sub-contractor
arising out of a separate but identically worded contract. If, for example, the contractor claims
that “force majeure” excuses its performance, an arbitrator having decided this issue in a first
arbitration between owner and contractor may be biased if he has to consider exactly the
same facts and identical contractual language in a dispute involving the contractor and a sub-
contractor.
Similarly, if a lawyer has published his or her opinion that a certain political event can never
be considered “force majeure,” he or she may well be biased in determining in an arbitration
whether that specific event constituted “force majeure” in the dispute under scrutiny by the
tribunal. (22)
P 331
P 332
C The difference between independence and impartiality
What is the difference between independence and impartiality? As Yves Derains and Eric
Schwartz state: “Independence is generally a function of prior or existing relationships that can
be catalogued and verified, while impartiality is a state of mind”. (23) It has been said that
independence is an “objective” standard because it addresses the relationship between
arbitrator and party, and impartiality a “subjective” measure of a person's inner attitude
toward a party or a situation which can be seen from the outside only in the behavior of the
arbitrator. (24)
I do not believe that the difference is material. By looking at “independence” one is really
trying to measure the probability of “bias.” On the other hand, even though impartiality may be
regarded as a subjective standard dealing with the arbitrator's state of mind, the English
courts have had to develop the notion of “apparent bias,” a fact-based test, to determine
impartiality. Independence and impartiality are two ways of looking at the same thing. It is
therefore not surprising that with the same facts, the outcome of a challenge based on
independence and one based on impartiality will be identical, as the AT&T case showed.
If a party were certain that an arbitrator was absolutely unbiased and impartial even though
not independent of the other party, it would most likely accept him as arbitrator. If, however,
an arbitrator were manifestly independent of the parties but known to be partial towards one
of them, it is most unlikely that the opponent would want him to act as arbitrator.

D Fitness and qualifications

There may also be objective grounds for disqualifying arbitrators, which have nothing to do
with their relationship with or predisposition toward the parties or the dispute. This is the case
when an arbitrator does not fulfill the contractually agreed and stipulated qualifications
required by the arbitral agreement.
If an arbitration clause calls for all arbitrators to be engineers and a party nominates a lawyer
without any engineering background, this might be a ground for the other party to challenge
the appointment. The appointment of an arbitrator in violation of such contractual
requirements may not only lead to the disqualification of the arbitrator but could also lead to
the setting aside the award or to its non-enforcement, because the arbitral tribunal was not
constituted in accordance with the parties' wishes. (25)
On the other hand, if the parties have not specifically called for certain characteristics or
P 332 qualifications, arbitrators' nominations will stand even if the persons so nominated do not
P 333 possess skills or qualifications that might objectively be considered very useful, if not
essential, to the task. For example, it may be considered useful for an arbitrator to be able to
understand as well as read and write the language of the arbitration. However, his or her
inability to do so would not necessarily justify a disqualification. Here, the right of a party to
choose its arbitrator must be balanced against the efficiency that might result from an
arbitrator having the necessary linguistic skills.
In this respect, the Convention on the Settlement of Investment Disputes between States and
Nationals of other States (“the ICSID Convention”) (26) is interesting. In Article 14, the
Convention sets out the characteristics and qualifications of persons, whom state parties can
appoint to the ICSID panels of arbitrators:
(1) Persons designated to serve on the Panels shall be persons of high moral character and
recognized competence in the fields of law, commerce, industry or finance, who may be relied
upon to exercise independent judgment. Competence in the field of law shall be of particular
importance in the case of persons on the Panel of Arbitrators.

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 The manifest lack of such characteristics may be grounds for a challenge according to Article 57
of the Convention. (27) As each member state may nominate four persons to a permanent panel
of arbitrators, these characteristics seek to unify the quality of panelists proposed by the
member states. (28) However, because arbitrators can be challenged for the manifest lack of
these characteristics, they are not merely abstract or non-enforceable notions but tools in the
hands of the parties, meant to ensure that their tribunal will meet certain standards of
competence in dealing with the issues before it.

E Cultural differences in applying standards

International commercial arbitration is very much a “cross-cultural” business in which
differences of understanding and perception play a great role in the evaluation of such
imprecise and ultimately subjective notions as “independence” and “impartiality”.
International arbitration rules require that all arbitrators be independent (and/or) impartial.
However, national arbitration customs may be at variance with this requirement. Thus, in
domestic arbitration, it may be customary and even expected for the party-appointed
arbitrator to act as the advocate of the party in the deliberations of the tribunal. For instance,
P 333 in domestic arbitration in the United States, the American Arbitration Association (AAA) only
P 334 requires the chairman or sole arbitrator to be “neutral”. Implicitly, this means that the
party-nominated arbitrators are not neutral. (29) The same is true for arbitration in many
Middle Eastern countries.
The problem becomes acute when arbitrators from different backgrounds and with little or no
international experience find themselves in an international commercial arbitration. Here the
whole concept of “independence” or “impartiality” and their perception of their role as co-
arbitrators may be deeply colored by their background.
The role of the party-appointed arbitrator is a subject which has filled many pages of print and
will continue to do so. It goes to the very soul of the international arbitral process, where
cultural affinity and empathy will color and shade an arbitrator's perception of right and
wrong. (30) When does an arbitrator cross the fine line between being sympathetic to the party
that has nominated him and being biased? Martin Hunter, a well known arbitrator, once said
that a party-appointed arbitrator should combine maximum predisposition towards the party
that has nominated him with a minimum appearance of bias.
There are no hard and fast rules to decide these questions. In the best of cases, party-
appointed arbitrators are bridges to understanding. They help their colleagues on the panel
understand a party's position. In the worst of cases, they become vociferous and blatant
champions of their party's cause, and, in doing so, will lose credibility and standing within the
tribunal and become quite ineffective in helping their party before the other members.

III Procedures for Disqualification (31)

We now turn to the mechanics of disqualifying an arbitrator. In institutional arbitration these
procedures will be set out in the rules of the institution. In ad hoc arbitration, the parties may
have agreed to a set of rules, such as the UNCITRAL Arbitration Rules, which contains a
challenge mechanism. However, if they have not agreed to such rules and if an arbitrator
refuses to resign after being challenged, the resulting deadlock may have to be solved by the
courts in the place of arbitration.
P 334
P 335
A Introducing the challenge
1 Notification: Exchange of Information
A party wishing to challenge an arbitrator must make this known to all concerned. The request
for disqualification must be in writing and must specify the facts and circumstances on which it
is based. (32) If the arbitration is conducted under institutional rules, the institution will
usually ensure that all participants are informed of the challenge and are given an opportunity
to comment. Many rules stipulate that if all the parties agree on the challenge, the challenged
arbitrator must resign. Under those circumstances, the resignation will not be considered an
admission or acceptance of the grounds of the challenge. However, having lost the confidence
of both parties, the arbitrator can no longer serve his or her purpose. (33)
For the institution to be able to decide upon the challenge, it must be informed about how all
of the participants feel about it. The ICC Rules even stipulate that the comments of the
participants are to be made available to the others by the ICC so that there may even be a
second round of arbitrator and party comments.
2 Time Limits
Most institutional rules as well as those of UNCITRAL stipulate that a challenge must be
brought within a specified time limit as of the arbitrators' appointment or knowledge of the
fact upon which the challenge is based. In most cases, the time limit is fifteen days after the
appointment or knowledge of the facts. The ICC Rules are somewhat more generous, allowing
for thirty days. Most rules also stipulate that a party may request the disqualification of an
arbitrator whom it nominated, only for reasons which came to light after the nomination was
made. (34)

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 For investment disputes under the ICSID Convention, the ICSID Rules of Procedure for
Arbitration Proceedings (ICSID Arbitration Rules) do not define a time limit but state that a
proposal for disqualification shall be made promptly but in any case before the closing of the
procedure. (35)
These time limits serve an important protective function. Without them a party could keep
information about an arbitrator's independence as a secret weapon to sabotage the
arbitration at the end of the arbitration or to challenge successfully the validity of the award
rendered by the tribunal. The time-bar obliges a party with knowledge of facts which might
disqualify an arbitrator to make them known immediately or be estopped from being able to
invoke the fact later on.
P 335
P 336
3 Timing and the Shifting of the Burden of Proof
The burden of proving that there are facts that raise sufficient doubts as to an arbitrator's
independence or impartiality lies with the party making the challenge. However, whether a
fact raises justifiable doubts about an arbitrator's independence may actually vary according
to how advanced the arbitral process is.
Appointing authorities are likely to apply less stringent standards of proof when deciding
whether to confirm or allow a challenge of an arbitrator if the objection or challenge is brought
up before any significant progress in the arbitration has been made.
Arbitral institutions pursue two goals. As appointing authorities they will try to put together the
best possible tribunal to determine the parties' dispute. At this stage of the arbitration, the
emphasis will be on constituting a panel which, to the greatest extent possible, has the trust of
all parties. However, once the tribunal has been formed and the reference is under way, the
institutional focus will shift to protecting the arbitral process from disruption.
In the case of challenges, this means that it is likely that the burden of proof for allowing a
challenge will shift to a higher standard as the arbitration progresses. This reality is reflected
in an UNCITRAL decision regarding the challenge of an arbitrator, in which the Appointing
Authority designated by the Secretary General of the Permanent Court of Arbitration stated:
The next guidepost involves the timing of the challenge to an arbitrator. Does the standard of
impartiality take on a shifting or ambulatory character depending on the stage of the
proceedings? The standard to be applied for impartiality and the proof required to establish a
lack thereof should, in theory, be no different according to whether the issue is raised at the
threshold or at the conclusion of the proceedings. In relation to my task here, I agree with the
view put forward by Baker and Davis in The UNCITRAL Arbitration Rules in Practice, supra, at p.
51 where it is stated:
A prudent appointing authority may be tempted to sustain an early challenge simply to be on
the safe side and avoid potential for delay and disruption later, even though the same
circumstances later on would not justify disqualification in the closing days of a case. But such
an approach would muddle the standard for arbitrator impartiality — after all, if an arbitrator
is biased he should be disqualified no matter how late the challenge, and if he is impartial he
should be allowed to serve, no matter how timely the challenge. (36)
Of course, proof of actual bias or evident lack of independence will warrant the replacement of
the offending arbitrator at any stage of the arbitral process. What shifts, however, is the yard-
stick by which the institution measures when one might reasonably find that a fact shows
apparent bias or lack of independence in cases where the situation is not absolutely clear.
P 336
P 337
B Who decides the challenge?
1 Institutional Arbitration
If the arbitration is conducted under institutional rules, the institution or a special body will
usually decide on challenges against an arbitrator. Thus, under the LCIA and ICC Rules, the
decision is made by their respective courts. Because the institutional decisions on challenges
have an administrative character rather than a judicial one, challenge proceedings are not
adversarial. This means that, while the challenged arbitrator and all other persons involved in
the arbitration will be given a chance to comment on the challenge, neither the arbitrator nor
the challenging party will appear before the institution in defense of their position. (37) The
exchange of comments should merely ensure that the institution is as fully informed as
possible before making its determination. If the challenge is brought under the ICC Rules, it is
decided by a Plenary Session of the International Court of Arbitration. One of the members of
the court presents a report and recommends a course of action after which the Plenary Session
will debate and decide whether or not to accept the challenge. (38)
Of all institutional rules reviewed here, only those of the German Institute for Arbitration
(Deutsche Institution für Schiedsgerichtsbarkeit, DIS) do not attribute the decision on
challenges to the institution but to the arbitral tribunal. (39) The DIS Rules reflect the approach
of the UNCITRAL Model Law, which was recently adopted in Germany. In this system a challenge
must first be brought before the arbitral tribunal and if the challenging party is not happy with
the tribunal's decision it may request a decision from the courts at the place of arbitration.

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 This solution is obviously problematical, because the tribunal becomes a judge in its own
cause. In the case of a three-member tribunal all three arbitrators will take part in the
decision, if it is a sole arbitrator that person decides alone. This system is problematical,
particularly in case of a sole arbitrator, because it is hardly compatible with the notion that
justice must be seen to be done and that a judge should not sit in his or her own cause.
The ICSID Rules are interesting because they solved the same problem another way. If the
challenge relates to a sole arbitrator or to the majority of an arbitral tribunal it will be decided
by the Chairman of the ICSID Administrative Council, who ipso jure is the President of the World
Bank. (40) However, if the challenge is directed at one (or at a minority) of arbitrators, it will be
P 337 decided by the majority. (41) Thus, ICSID has avoided the unfortunate solution of the Model
P 338 Law, by leaving the decision on the challenge with the arbitral tribunal for as long as is
consistent with the notion of justice being seen to be done. When that perception cannot be
maintained, an outside authority steps in to make the decision.
2 Ad Hoc Arbitration
Arbitration that is not conducted under the rules of an arbitral institution is known as ad hoc
arbitration. The parties may nevertheless have agreed on a set of rules such as the UNCITRAL
Rules. They may, however, have agreed to none at all, in which case the arbitration will take
place only under the framework of the arbitration law of the place of arbitration.
We shall first look at the challenge procedure as set out in the UNCITRAL Arbitration Rules,
which are widely accepted and frequently used.
Because the UNCITRAL Rules were developed for ad hoc arbitration, they could not rely on an
internal authority, which would deal with a challenge procedure. To shield the arbitration from
intervention of national courts, the UNCITRAL Rules created a mechanism for designating an
appointing authority. The Secretary General of the Permanent Court of Arbitration in The Hague
is mandated to be the default designator of an appointing authority. (42) While the system
seems convoluted, it does avoid giving one institution the status of default UNCITRAL
appointing authority. Thus, the “appointing authority” designated by the Secretary General will
be in charge of any challenge against an arbitrator, even if the panel was not constituted with
the help of an appointing authority.
Finally, if an ad hoc arbitration is not conducted under rules like those of UNCITRAL, the parties
will have to refer a challenge to the national courts in accordance with the arbitral law (lex
arbitri) of the place of arbitration. If the lex arbitri is based on the UNCITRAL Model Law on
International Commercial Arbitration (“Model Law”), then there will be a two-step process. (43)
First, the arbitral tribunal, in its full composition, decides the challenge. If a party is not
satisfied with the decision, it can, within thirty days, apply to the state courts to decide the
issue. Unlike under the ICSID Rules, the challenged arbitrator participates in the decision-
making process and, if he is a sole arbitrator, he decides himself. Of course, the problem is
attenuated by the possibility to appeal the tribunal's decision to the state courts. However,
having to call on the state courts may seriously disrupt the arbitral process. This danger is only
partially alleviated by the provision that the arbitration may proceed while the challenge is
pending before the state courts.
P 338
P 339
The U.S. Federal Arbitration Act (44) does not foresee a challenge procedure. Lack of
independence or impartiality can generally only be sanctioned by petitioning that the final
award be vacated under section 10(a)(2) of the Act for “evident partiality or corruption in the
arbitrators”. (45) Thus, the Act gives the parties no possibility to petition the court to remove
an arbitrator during the reference where the facts supported a finding that he or she was not
impartial or independent. Some U.S. courts have, nevertheless, assumed jurisdiction over a
pre-award challenge on the grounds that a biased arbitrator violated the arbitration
agreement. Because the courts have the power to enforce the arbitration agreement, they
could also disqualify an arbitrator for lack of independence or bias before an award was
rendered. (46)
If the arbitration takes place in Switzerland and involves at least one non-Swiss party, Chapter
12 of the Swiss International Private Law Act (SPILA) would govern it. Article 180.3 foresees that
the courts at the place of arbitration will be competent to deal with challenges. Being a
federal state, and because in Switzerland civil procedure is governed by cantonal laws of
procedure, the competent court and manner in which the challenge must be filed will be set
out in the relevant cantonal code. However, all cantonal courts will be applying the same
standard as set out in the federal SPILA, i.e. “justifiable doubts as to the arbitrator's
independence”.

C Form of the decision

Most institutional arbitration rules do not prescribe in which form the decision concerning a
challenge is communicated to the parties. Article 7.4 of the ICC Rules is unique because it
stipulates that no reasons for the decision accepting or rejecting a challenge shall be given.
The ICC refusal to communicate the reasons for its decisions on challenges has been criticized
as lacking transparency. (47) By not communicating the reasons for its decisions, the ICC seeks
not only to protect the finality of those decisions, but also hopes to spare arbitrators from the
embarrassment which might be caused by a decision concerning their independence.

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 I have not come across any other institutional rules that excluded the communication of
reasons for the decision. The rules of the Chamber of Commerce and Industry of Geneva (CCIG)
expressly stipulate that the decision “summarily states the reasons”. (48) Most institutional
rules, however, do not stipulate anything to this effect and it will be left to the discretion of the
institution to decide whether and in what length it wishes to give reasons for the decision
taken.
P 339
P 340
D Consequences of the challenge
1 Suspension of Arbitral Proceedings
What is the effect of a challenge on an ongoing arbitration? One might expect that a challenge
would suspend the arbitration until it has been decided. However, this is rarely set out in
arbitral rules. Of the surveyed arbitration rules only Rule 9(6) of the ICSID Arbitration Rules
stipulates that the arbitration will be halted during the challenge proceedings. (49) The English
Arbitration Act 1996, on the contrary, foresees that the arbitrators can continue the reference
while the application to remove an arbitrator is pending. (50)
The ICC Rules say nothing to this effect, nor do the LCIA or AAA Arbitration Rules. There is a good
reason for this silence. Arbitral rules are designed to reduce the disruption a challenge may
cause to the arbitral process as much as possible. Arbitral proceedings usually have lengthy
periods in which the parties are preparing and exchanging written material. During these
periods there is little action on the part of the arbitral tribunal, so that there is no reason to
“suspend” the arbitration. A challenge can be handled easily in the time of relative inaction of
the tribunal without causing a disruption of the procedural calendar established by the
arbitrators. On the other hand, a “suspension rule” might have the effect of delaying the whole
arbitration, as a party intent in disrupting the process could interpret it as suspending the
entire procedure, including the calendar for submissions established by the tribunal.
However, if a challenge coincides with a phase in which the tribunal is active, such as before
hearings, on-site visits, deliberations or rulings on procedural matters etc., it may be wise to
postpone such activity by the tribunal, until the challenge has been decided and all doubt as
to the tribunal's composition has been removed.
This is partially also the solution adopted by the UNCITRAL Model Law, which stipulates that,
while the request to the courts to reverse the tribunal's decision on the challenge is pending,
the arbitral tribunal, including the challenged arbitrator, may continue the arbitral
proceedings and make an award. (51) This provision ostensibly only deals with what happens
when the challenge is referred to the courts and does not expressly stipulate whether a
tribunal may continue the arbitration before its own decision on the challenge. However, if a
tribunal can continue the reference when it is no longer master of the decision about the
challenge, it ought to be able also to do so while it still has the power to decide the challenge.
P 340
P 341
2 Replacement of Arbitrators
If a challenge is successful, the arbitrator is replaced. Normally, one would expect that the
replacement procedure would mirror the original nomination process. (52) Thus, if a co-
arbitrator nominated by the claimant is replaced, the claimant would be invited to nominate a
new arbitrator. This was also the case under the previous version of the ICC Rules. (53) Modern
institutional arbitration rules have departed from this assumption in favor of considerable
discretion on the part of the appointing authority to make its own nomination of a replacement
arbitrator. Following the original appointment process leaves open the doors to abuse by a
party. In cases in which arbitrators must be replaced, either because they have been
successfully challenged, or for other reasons, maintaining the initial nomination process may
allow a party to propose another arbitrator who might again be challenged successfully or
otherwise removed. (54)
The LCIA Rules state that, “if an appointed arbitrator is to be replaced for any reason, the LCIA
Court shall have a complete discretion to decide whether or not to follow the original
nominating process”. (55) Because challenges are rarely brought for purely dilatory reasons,
institutions in most cases will follow the original appointment process. However, if the need
arises, they have the necessary discretionary power to deal efficiently with pathological cases.
The Zurich Chamber of Commerce takes an even more drastic approach. According to Article
18.2, the President of the Chamber of Commerce appoints a replacement arbitrator if the
previous one was successfully challenged. This means that if the challenge of an arbitrator is
admitted the nominating party is automatically deprived of its right to nominate a
replacement arbitrator. (56)
3 Effect of a Successful Challenge on the Arbitral Process
As we have seen, institutional rules of arbitration try to keep the disruption caused by
challenges to a minimum. If a challenge is refused, the arbitration will simply continue where it
may have been interrupted by the challenge. However, if the challenge is successful, one of the
P 341 arbitrators on the panel must be replaced. Will the arbitral proceedings have to be
P 342 repeated ab initio for the benefit of the new arbitrator or will they continue where they were

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 before the new arbitrator came to the case?
Most institutional rules stipulate that it is up to the tribunal to determine what, if any,
procedural steps must be repeated. Thus Article 12.4 of the ICC Rules states:
When an arbitrator is to be replaced, the Court has discretion to decide whether or not to
follow the original nominating process. Once reconstituted, and after having invited the parties
to comment, the Arbitral Tribunal shall determine if and to what extent prior proceedings shall
be repeated before the reconstituted Arbitral Tribunal. (57)
Another solution is to exclude repeating anything. The Geneva Chamber of Commerce and
Industry and the Zurich Chamber of Commerce Rules have taken this approach by stating that
the arbitration continues at the point where the previous arbitrator ceased to perform his
duties. (58)
The Greek Law on International Arbitration, which is a slightly amended version of the
UNCITRAL Model Law, stipulates in Article 15 that there must be unanimity in the tribunal to
decide to continue from the point where the previous arbitrator ceased to function. (59) This, of
course, is a dangerous rule because it gives an unscrupulous party enormous power seriously to
disrupt the process if a new arbitrator appointed by it is ready to collude in derailing the
process by insisting that all procedural acts be repeated. (60)

IV Conclusion
Arbitrators are judges in as much as they adjudicate the disputes brought before them. The
parties who voluntarily submit to their authority need to be assured that those sitting in
judgement will be fair-minded and just. For this reason, the rules of arbitral institutions foresee
mechanisms making it possible to challenge or disqualify arbitrators if facts arise which make
it look as though someone is not as independent or impartial as he or she should be. However,
challenging an arbitrator is potentially very disruptive to the arbitral process.
The standards to which arbitrators are held in their adjudicatory capacity are similar to those
required of judges. They must be independent and impartial. There is little difference between
the “objective” standard of independence, and the more “subjective” one of impartiality.
Independence is not really a standard in itself but rather a way to measure the potential for
“bias”. Arbitrators can also be disqualified for not having characteristics required by the
parties' arbitration agreement.
P 342
P 343
Looking at the various procedures for challenge set out in different institutional and UNCITRAL
arbitration rules, one sees that the institutional preoccupation of protecting the arbitral
process from the disruptive effects of challenges exists in practically all rules. It is in this
context that the choice of whether to arbitrate ad hoc or within the framework of the rules of an
arbitral institution takes on much of its significance.
Institutions have developed certain methods to protect the arbitral process. By stipulating
short time limits for bringing challenges and not allowing a challenge to paralyze an ongoing
arbitration and by keeping discretionary powers in determining the method of selection or
even the choice of a replacement arbitrator, arbitral institutions seek to minimize disruption.
Such protection may not be available to parties who decide to arbitrate wholly outside of the
framework of an institution or rules such as those of UNCITRAL. In the worst of cases, they may
not have any recourse against a biased tribunal until the reference is ended and the award
may be vacated.
P 343
P 344

Appendix 1: Provisions Concerning Challenge Procedures in Selected

Arbitration Rules
A AAA international arbitration rules
Article 8: challenge of arbitrators
1. A party may challenge any arbitrator whenever circumstances exist that give rise to
justifiable doubts as to the arbitrator's impartiality or independence. A party wishing to
challenge an arbitrator shall send notice of the challenge to the administrator within 15 days
after being notified of the appointment of the arbitrator or within 15 days after the
circumstances giving rise to the challenge become known to that party.
2. The challenge shall state in writing the reasons for the challenge.
3. Upon receipt of such a challenge, the administrator shall notify the other parties of the
challenge. When an arbitrator has been challenged by one party, the other party or parties
may agree to the acceptance of the challenge and, if there is agreement, the arbitrator shall
withdraw. The challenged arbitrator may also withdraw from office in the absence of such
agreement. In neither case does withdrawal imply acceptance of the validity of the grounds for
the challenge.
Article 9

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 If the other party or parties do not agree to the challenge or the challenged arbitrator does not
withdraw, the administrator in its sole discretion shall make the decision on the challenge.
Article 10: replacement of an arbitrator
If an arbitrator withdraws after a challenge, or the administrator sustains the challenge, or the
administrator determines that there are sufficient reasons to accept the resignation of an
arbitrator, or an arbitrator dies, a substitute arbitrator shall be appointed pursuant to the
provisions of Article 6, unless the parties otherwise agree.

B German institute of arbitration (DIS) arbitration rules

Section 18: challenge of arbitrator
11.1 An arbitrator may be challenged only if circumstances exist that give rise to justifiable
P 344 doubts as to his impartiality or independence, or if he does not possess qualifications agreed
P 345 to by the parties. A party may challenge an arbitrator nominated by him, or in whose
nomination he has participated, only for reasons of which he becomes aware after the
nomination has been made.
11.2 The challenge shall be notified and substantiated to the DIS Secretariat within two weeks
of being advised of the constitution of the arbitral tribunal pursuant to section 17 sub. 3 or of
the time at which the party learns of the reason for challenge. The DIS Secretariat informs the
arbitrators and the other party of the challenge and sets a reasonable time limit for comments
from the challenged arbitrator and the other party. If the challenged arbitrator does not
withdraw from his office or the other party does not agree to the challenge within the time
limit fixed, the challenging party may within two weeks request the arbitral tribunal to decide
on the challenge unless otherwise agreed by the parties.
11.3 If the other party agrees to the challenge, or if the arbitrator withdraws from his office after
being challenged, or if the application of challenge has been granted, a substitute arbitrator
shall be nominated. Section 12 to 17 apply mutatis mutandis to the nomination and
confirmation of the substitute arbitrator.

C 1998 ICC arbitration rules

Article 7: general provisions
1. Every arbitrator must be and remain independent of the parties involved in the arbitration.
2. Before appointment or confirmation, a prospective arbitrator shall sign a statement of
independence and disclose in writing to the Secretariat any facts or circumstances which
might be of such a nature as to call into question the arbitrator's independence in the eyes of
the parties. The Secretariat shall provide such information to the parties in writing and fix a
time limit for any comments from them.
3. An arbitrator shall immediately disclose in writing to the Secretariat and to the parties any
facts or circumstances of a similar nature which may arise during the arbitration.
4. The decisions of the Court as to the appointment, confirmation, challenge or replacement of
an arbitrator shall be final and the reasons for such decisions shall not be communicated.
5. By accepting to serve, every arbitrator undertakes to carry out his responsibilities in
accordance with these Rules.
6. Insofar as the parties have not provided otherwise, the Arbitral Tribunal shall be constituted
in accordance with the provisions of Articles 8, 9 and 10.
Article 11: challenge of arbitrators
1. A challenge of an arbitrator, whether for an alleged lack of independence or otherwise, shall
be made by the submission to the Secretariat of a written statement specifying the facts and
circumstances on which the challenge is based.
P 345
P 346
2. For a challenge to be admissible, it must be sent by a party either within 30 days from
receipt by that party of the notification of the appointment or confirmation of the arbitrator, or
within 30 days from the date when the party making the challenge was informed of the facts
and circumstances on which the challenge is based if such date is subsequent to the receipt of
such notification.
3. The Court shall decide on the admissibility, and, at the same time, if necessary, on the
merits of a challenge after the Secretariat has afforded an opportunity for the arbitrator
concerned, the other party or parties and any other members of the Arbitral Tribunal, to
comment in writing within a suitable period of time. Such comments shall be communicated to
the parties and to the arbitrators.
Article 12: replacement of arbitrators
1. An arbitrator shall be replaced upon his death, upon the acceptance by the Court of the
arbitrator's resignation, upon acceptance by the Court of a challenge or upon the request of all
the parties.

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 2. An arbitrator shall also be replaced on the Court's own initiative when it decides that he is
prevented de jure or de facto from fulfilling his functions, or that he is not fulfilling his functions
in accordance with the Rules or within the prescribed time limits.
3. When, on the basis of information that has come to its attention, the Court considers
applying Article 12(2), it shall decide on the matter after the arbitrator concerned, the parties
and any other members of the Arbitral Tribunal have had an opportunity to comment in writing
within a suitable period of time. Such comments shall be communicated to the parties and to
the arbitrators.
4. When an arbitrator is to be replaced, the Court has discretion to decide whether or not to
follow the original nominating process. Once reconstituted, and after having invited the parties
to comment, the Arbitral Tribunal shall determine if and to what extent prior proceedings shall
be repeated before the reconstituted Arbitral Tribunal.
Subsequent to the closing of the proceedings, instead of replacing an arbitrator who has died
or been removed by the Court pursuant to Articles 12(1) and 12(2), the Court may decide, when
it considers it appropriate, that the remaining arbitrators shall continue the arbitration. In
making such determination, the Court shall take into account the views of the remaining
arbitrators and of the parties and such other matters that it considers appropriate in the
circumstances.

D ICSID Arbitration Rules

Rule 9: disqualification of arbitrators
(1) A party proposing the disqualification of an arbitrator pursuant to Article 57 of the
Convention shall promptly, and in any event before the proceeding is declared closed, file its
proposal with the Secretary-General, stating its reasons therefor.
P 346
P 347
(2) The Secretary-General shall forthwith:
(a) transmit the proposal to the members of the Tribunal and, if it relates to a sole arbitrator
or to a majority of the members of the Tribunal, to the Chairman of the Administrative
Council; and
(b) notify the other party of the proposal.
(3) The arbitrator to whom the proposal relates may, without delay, furnish explanations to the
Tribunal or the Chairman, as the case may be.
(4) Unless the proposal relates to a majority of the members of the Tribunal, the other
members shall promptly consider and vote on the proposal in the absence of the arbitrator
concerned. If those members are equally divided, they shall, through the Secretary General,
promptly notify the Chairman of the proposal, of any explanation furnished by the arbitrator
concerned and of their failure to reach a decision.
(5) Whenever the Chairman has to decide on a proposal to disqualify an arbitrator, he shall
take that decision within 30 days after he has received the proposal.
(6) The proceeding shall be suspended until a decision has been taken on the proposal.

E LCIA Arbitration Rules

Article 10: revocation of arbitrator's appointment
10.1 If either (a) any arbitrator gives written notice of his desire to resign as arbitrator to the
LCIA Court, to be copied to the parties and the other arbitrators (if any) or (b) any arbitrator
dies, falls seriously ill, refuses, or becomes unable or unfit to act, either upon challenge by a
party or at the request of the remaining arbitrators, the LCIA Court may revoke that arbitrator's
appointment and appoint another arbitrator. The LCIA Court shall decide upon the amount of
fees and expenses to be paid for the former arbitrator's services (if any) as it may consider
appropriate in all the circumstances.
10.2 If any arbitrator acts in deliberate violation of the Arbitration Agreement (including these
Rules) or does not act fairly and impartially as between the parties or does not conduct or
participate in the arbitration proceedings with reasonable diligence, avoiding unnecessary
delay or expense, that arbitrator may be considered unfit in the opinion of the LCIA Court.
10.3 An arbitrator may also be challenged by any party if circumstances exist that give rise to
justifiable doubts as to his impartiality or independence. A party may challenge an arbitrator
it has nominated, or in whose appointment it has participated, only for reasons of which it
becomes aware after the appointment has been made.
10.4 A party who intends to challenge an arbitrator shall, within 15 days of the formation of the
Arbitral Tribunal or (if later) after becoming aware of any circumstances referred to in Article
P 347 10.1, 10.2 or 10.3, send a written statement of the reasons for its challenge to the LCIA Court, the
P 348 Arbitral Tribunal and all other parties. Unless the challenged arbitrator withdraws or all
other parties agree to the challenge within 15 days of receipt of the written statement, the LCIA
Court shall decide on the challenge.

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 Article 11: nomination and replacement of arbitrators
11.1 In the event that the LCIA Court determines that any nominee is not suitable or
independent or impartial or if an appointed arbitrator is to be replaced for any reason, the
LCIA Court shall have a complete discretion to decide whether or not to follow the original
nominating process.
11.2 If the LCIA Court should so decide, any opportunity given to a party to make a re-
nomination shall be waived if not exercised within 15 days (or such lesser time as the LCIA
Court may fix), after which the LCIA Court shall appoint the replacement arbitrator.

F UNCITRAL Arbitration Rules

Article 9: challenge of arbitrators
A prospective arbitrator shall disclose to those who approach him in connection with his
possible appointment any circumstances likely to give rise to justifiable doubts as to his
impartiality or independence. An arbitrator, once appointed or chosen, shall disclose such
circumstances to the parties unless they have already been informed by him of these
circumstances.
Article 10
1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as
to the arbitrator's impartiality or independence.
2. A party may challenge the arbitrator appointed by him only for reasons of which he becomes
aware after the appointment has been made.
Article 11
1. A party who intends to challenge an arbitrator shall send notice of his challenge within
fifteen days after the appointment of the challenged arbitrator has been notified to the
challenging party or within fifteen days after the circumstances mentioned in articles 9 and 10
became known to that party.
2. The challenge shall be notified to the other party, to the arbitrator who is challenged and to
the other members of the arbitral tribunal. The notification shall be in writing and shall state
the reasons for the challenge.
3. When an arbitrator has been challenged by one party, the other party may agree to the
P 348 challenge. The arbitrator may also, after the challenge, withdraw from his office. In neither case
P 349 does this imply acceptance of the validity of the grounds for the challenge. In both cases the
procedure provided in article 6 or 7 shall be used in full for the appointment of the substitute
arbitrator, even if during the process of appointing the challenged arbitrator a party had failed
to exercise his right to appoint or to participate in the appointment.
Article 12
1. If the other party does not agree to the challenge and the challenged arbitrator does not
withdraw, the decision on the challenge will be made:
(a) when the initial appointment was made by an appointing authority, by that authority;
(b) when the initial appointment was not made by an appointing authority, but an
appointing authority has been previously designated, by that authority;
(c) in all other cases, by the appointing authority to be designated in accordance with the
procedure for designating an appointing authority as provided for in article 6.
2. If the appointing authority sustains the challenge, a substitute arbitrator shall be appointed
or chosen pursuant to the procedure applicable to the appointment or choice of an arbitrator
as provided in articles 6 to 9 except that, when this procedure would call for the designation of
an appointing authority, the appointment of the arbitrator shall be made by the appointing
authority which decided on the challenge.

G WIPO Arbitration Rules

Article 22: impartiality and independence
(a) Each arbitrator shall be impartial and independent.
(b) Each prospective arbitrator shall, before accepting appointment, disclose to the parties,
the Center and any other arbitrator who has already been appointed any circumstances
that might give rise to justifiable doubt as to the arbitrator's impartiality or
independence, or confirm in writing that no such circumstances exist.
(c) If, at any stage during the arbitration, new circumstances arise that might give rise to
justifiable doubt as to any arbitrator's impartiality or independence, the arbitrator shall
promptly disclose such circumstances to the parties, the Center and the other arbitrators.

Article 24: challenge of arbitrators

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 P 349 (a) Any arbitrator may be challenged by a party if circumstances exist that give rise to
P 350 justifiable doubt as to the arbitrator's impartiality or independence.
(b) A party may challenge an arbitrator whom it has appointed or in whose appointment it
concurred only for reasons of which it becomes aware after the appointment has been
made.

Article 25
A party challenging an arbitrator shall send notice to the Center, the Tribunal and the other
party, stating the reasons for the challenge, within 15 days after being notified of that
arbitrator's appointment or after becoming aware of the circumstances that it considers give
rise to justifiable doubt as to that arbitrator's impartiality or independence.
Article 26
When an arbitrator has been challenged by a party, the other party shall have the right to
respond to the challenge and shall, if it exercises this right, send, within 15 days after receipt of
the notice referred to in Article 25, a copy of its response to the Center, the party making the
challenge and the arbitrators.
Article 27
The Tribunal may, in its discretion, suspend or continue the arbitral proceedings during the
pendency of the challenge.
Article 28
The other party may agree to the challenge or the arbitrator may voluntarily withdraw. In
either case, the arbitrator shall be replaced without any implication that the grounds for the
challenge are valid.
Article 29
If the other party does not agree to the challenge and the challenged arbitrator does not
withdraw, the decision on the challenge shall be made by the Center in accordance with its
internal procedures. Such a decision is of an administrative nature and shall be final. The
Center shall not be required to state reasons for its decision.
P 350
P 351

Appendix 2: Provisions Concerning Challenge Procedures in Selected

National Arbitration Laws
A UNCITRAL Model Arbitration Law
Article 12: grounds for challenge
1. When a person is approached in connection with his possible appointment as an arbitrator,
he shall disclose any circumstances likely to give rise to justifiable doubts as to his
impartiality or independence. An arbitrator, from the time of his appointment and throughout
the arbitral proceedings, shall without delay disclose any such circumstances to the parties
unless they have already been informed of them by him.
2. An arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence, or if he does not possess qualifications agreed
to by the parties. A party may challenge an arbitrator appointed by him, or in whose
appointment he has participated, only for reasons of which he becomes aware after the
appointment has been made.
Article 13: challenge procedure
1. The parties are free to agree on a procedure for challenging an arbitrator, subject to the
provisions of paragraph (3) of this article.
2. Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen
days after becoming aware of the constitution of the arbitral tribunal or after becoming aware
of any circumstance referred to in article 12(2), send a written statement of the reasons for the
challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or
the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
3. If a challenge under any procedure agreed upon by the parties or under the procedure of
paragraph (2) of this article is not successful, the challenging party may request, within thirty
days after having received notice of the decision rejecting the challenge, the court or other
authority specified in article 6 to decide on the challenge, which decision shall be subject to
no appeal; while such a request is pending, the arbitral tribunal, including the challenged
arbitrator, may continue the arbitral proceedings and make an award.

B English Arbitration Act 1996 Chapter 23

Section 24: power of court to remove arbitrator

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 (1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator
P 351 concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the
P 352 following grounds:
(a) that circumstances exist that give rise to justifiable doubts as to his impartiality;
(b) that he does not possess the qualifications required by the arbitration agreement;
(c) that he is physically or mentally incapable of conducting the proceedings or there are
justifiable doubts as to his capacity to do so;
(d) that he has refused or failed:
(i) properly to conduct the proceedings, or
(ii) to use all reasonable dispatch in conducting the proceedings or making an award,
and that substantial injustice has been or will be caused to the applicant.

(2) If there is an arbitral or other institution or person vested by the parties with power to
remove an arbitrator, the court shall not exercise its power of removal unless satisfied that the
applicant has first exhausted any available recourse to that institution or person.
(3) The arbitral tribunal may continue the arbitral proceedings and make an award while an
application to the court under this section is pending.
(4) Where the court removes an arbitrator, it may make such order as it thinks fit with respect
to his entitlement (if any) to fees or expenses, or the repayment of any fees or expenses
already paid.
(5) The arbitrator concerned is entitled to appear and be heard by the court before it makes
any order under this section.
(6) The leave of the court is required for any appeal from a decision of the court under this
section.

C Swiss Private International Law Act: Chapter 12: International Arbitration

2 Challenge of arbitrators
Article 180
1. An arbitrator may be challenged:
(a) if he does not meet the requirements agreed upon by the parties;
(b) if there exists a ground for challenge under the arbitration rules agreed upon by the
parties; or
(c) if circumstances exist that give rise to justifiable doubts as to his independence.
2. A party may only challenge an arbitrator whom it has appointed or in whose appointment it
has participated on grounds of which it became aware after such appointment. The ground for
challenge must be notified to the arbitral tribunal and the other party without delay.
P 352
P 353
3. In the event of a dispute and to the extent to which the parties have not provided for this
challenge procedure, the court at the seat of the arbitral tribunal shall make the final decision.

D U.S. Federal Arbitration Act (9 U.S.C. § 1)

Section 10: vacation; grounds; rehearing
(a) In any of the following cases the United States court in and for the district wherein the
award was made may make an order vacating the award upon the application of any
party to the arbitration:
1. where the award was procured by corruption, fraud, or undue means;
2. where there was evident partiality or corruption in the arbitrators, or either of them;
3. where the arbitrators were guilty of misconduct in refusing to postpone the hearing,
upon sufficient cause shown, or in refusing to hear evidence pertinent and material
to the controversy; or of any other misbehavior by which the rights of any party have
been prejudiced;
4. where the arbitrators exceeded their powers, or so imperfectly executed them that a
mutual, final, and definite award upon the subject matter submitted was not made;
5. where an award is vacated and the time within which the agreement required the
award to be made has not expired the court may, in its discretion, direct a rehearing
by the arbitrators.

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 (b) The United States district court for the district wherein an award was made that was
issued pursuant to section 580 of title 5 may make an order vacating the award upon the
application of a person, other than a party to the arbitration, who is adversely affected or
P 353 aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with
the factors set forth in section 572 of title 5.

References
*) Partner at Georgana & Koch, Counselors at Law, Athens, Greece, former Counsel of the ICC
International Court of Arbitration in Paris.
1) Robert Briner & Fabian von Schlaberndorff, Article 6 of the European Convention on Human
Rights and its Bearing upon International Arbitration, in Law of International Business and
Dispute Settlement in the 21st Century: Liber Amicorum Karl Heinz Böckstiegel 94 (2001).
2) R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256. It is interesting to note that this
famous aphorism was coined by a man who, after becoming Lord Chief Justice of England,
was known for the bias he brought to the trials over which he presided. One commentator
wrote:
Hewart … has been called the worst Chief Justice since Scroggs and Jeffries in the
seventeenth century. I do not think that this is quite fair. When one considers the enormous
improvement in judicial standards between the seventeenth and twentieth centuries, I
should say that, comparatively speaking, he was the worst Chief Justice ever. (Lord Devlin,
Easing the Passing: the Trial of Dr John Bodkin Adams (1985).
The evolution and use of this dictum are discussed by the Hon. J. J. Spigelman, Chief Justice
of New South Wales, Seen to be Done: The Principle of Open Justice, available at
<www.lawlink.nsw.gov.au/sc/sc.nsf/pages/sp_091099>.
3) In this article the terms “disqualification” and “challenge” will be used as synonyms.
4) National procedural rules will, however, not necessarily provide easy and clearly defined
standards or procedures for challenging arbitrators. The French New Code of Civil
Procedure, for example, does not define what standards arbitrators must meet. The Code
merely states that, if an arbitrator believes that there is a ground for challenge, he must
inform the parties and can only act as arbitrator if they all agree. What such grounds would
be is left open (art. 1452 NCCP). However, the French courts have affirmed the notion that
arbitrators must be independent (Consorts Ury v. S.A. des Galeries Lafayette, Cass. 2e civ.,
Apr. 13, 1972).
5) Art. 7 of the AAA International Arbitration Rules [hereinafter “AAA Rules”] requires
“impartiality and independence” of all arbitrators; art. 14 of the ICSID Convention calls for
“persons of high moral character and recognized competence in the fields of law,
commerce, industry or finance, who may be relied upon to exercise independent
judgment”; art. 22 of the WIPO Rules calls for “impartiality and independence” as do art. 6
of the UNCITRAL Arbitration Rules and Rule 7 of the CPR (Chinese Peoples Republic)
Arbitration Rules.
6) Most arbitral institutions and arbitration laws require arbitrators to be independent and
impartial. Art. 7 of the AAA International Commercial Arbitration Rules and Rule 6 of the
ICSID Arbitration Rules [hereinafter “ICSID Rules”] requires the arbitrators to issue a
statement in which they promise to “judge fairly as between the parties”; see also art. 22(a)
of the WIPO Arbitration Rules [hereinafter “WIPO Rules”] and art. 9 of the UNCITRAL
Arbitration Rules [hereinafter “UNCITRAL Rules”].
7) Indeed, the ICC Statement of Independence specifically contains language to this effect.
By qualifying his statement of independence the arbitrator will check the box with the
following text:
I am independent of each of the parties and intend to remain so; however, I wish to call
your attention to the following facts or circumstances which I hereafter disclose because
they might be of such a nature as to call into question my independence in the eyes of any
of the parties.
8) There is no absolute presumption of this, of course. The Swiss Federal Tribunal held in 1998
that the mere fact that two lawyers, one counsel and the other arbitrator, shared the same
law firm is not in itself a ground for challenge. If the challenge is not raised in time, the
party knowing of a disqualifying fact loses its right to challenge an arbitrator: I. SA v. V.
(Hong Kong), Feb. 9, 1998, Bull. ASA 634 (1998).
9) John Kendall, Barristers, Independence and Disclosure, 8(3) Arb. Int'l 287–99 (1992); and John
Kendall, Barristers, Independence and Disclosure Revisited, 16(3) Arb. Int'l 343–51 (2000).
10) Cour d'Appel de Paris (1ère Ch. suppl.) June 28, 1991; 4 Revue de l'arbitrage 568–71 (1992).
11) Swiss Federal Tribunal, Decision of March 20, 2000, 20(1) ASA Bulletin 70 (2000).
12) English Arbitration Act 1996, ch. 23, § 24.
13) Gillian Eastwood, A Real Danger of Confusion? The English Law Relating to Bias in Arbitrators,
17(3) Arb. Int'l (2001).
14) R v. Bow Street Magistrate, ex parte Pinochet (No. 2) [1999] 2 WLR 272.
15) Dimes v. Proprietors of the Grand Junction Canal (1852) 3 HL Cas. 759.
16) Id.

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 17) R. v. Gough [1993] AC 646.
18) [2000] 1 Lloyd's Rep. 22; [2000] All ER (D) 657, CA; also 14(11) Mealeys' Int. Arb. Rep. 6.
19) English Arbitration Act 1950, § 23:
Removal of an arbitrator and setting aside an award
1 Where an arbitrator or umpire has misconducted himself or the proceedings, the High
. Court may remove him.
2 Where an arbitrator or umpire has misconducted himself or the proceedings, or an
. arbitration or award has been improperly procured, the High Court may set the award
aside.
20) Art. 2.7 of the ICC Rules:
Every arbitrator appointed or confirmed by the Court must be and remain independent of
the parties involved in the arbitration.
Before appointment or confirmation by the Court, a prospective arbitrator shall disclose in
writing to the Secretary General of the Court any facts or circumstances which might be of
such a nature as to call into question the arbitrator's independence in the eyes of the
parties. Upon receipt of such information, the Secretary General of the Court shall provide
it to the parties in writing and fix a time limit for any comments from them.
21) Under the English Arbitration Act 1996, this might be handled differently. Section 24(2)
provides that, if the parties have agreed to institutional rules, which contain a procedure
for removing arbitrators, an application to the court can only be made if the previous
venue has been exhausted. (cf. Appendix II). However, this language appears to leave open
the possibility for an English court to review an institutional decision on a challenge.
22) E. Loquin, La Validité de Principe de la Désignation d'un Arbitre commun à Deux Procédures
d'Arbitrage Parallèles, J.D.I 2, 455 (1994).
23) Yves Derains & Eric Schwartz, A Guide to the New ICC Rules of Arbitration 109 (1998).
24) Jean Robert, L'Arbitrage, Droit interne, Droit international privé 135 (6th ed., 1993).
25) Art. 34(2)(iv) of the UNCITRAL Model Law; art. 5(1)(d) of the New York Convention.
26) Convention on the Settlement of Investments Disputes between States and Nationals of
Other States, Washington, March 18, 1965, T.I.A.S. 6090; 575 U.N.T.S.159.
27) Art. 57 of the ICSID Convention:
A party may propose to a Commission or Tribunal the disqualification of any of its
members on account of any fact indicating a manifest lack of the qualities required by
paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the
disqualification of an arbitrator on the ground that he was ineligible for appointment to
the Tribunal under Section 2 of Chapter IV.
28) As of June 2002, the Convention was in force in 134 states (see
<www.worldbank.org/icsid/constate/c-states-en.htm>).
29) AAA Commercial Arbitration Rules:
R-15: Appointment of Neutral Arbitrator by Party-Appointed Arbitrators or Parties (a) If the
parties have selected party-appointed arbitrators, or if such arbitrators have been
appointed as provided in Section R-14, and the parties have authorized them to appoint a
neutral arbitrator within a specified time and no appointment is made within that time or
any agreed extension, the AAA may appoint a neutral arbitrator, who shall act as
chairperson
30) A. A. de Fina, The Party Appointed Arbitrator in International Arbitrations: Role and Selection,
15(4) Arb. Int'l 381–92 (1999); Philippe Fouchard, Le statut de l'arbitre dans la jurisprudence
française, 3 Revue de l'arbitrage 325–72 (1996); see also Doak Bishop & Lucy Reed, Practical
Guidelines for Interviewing, Selecting and Challenging Party Appointed Arbitrators in
International Commercial Arbitration, 14(4) Arb. Int'l 395–430 (1998); Rosabel E. Goodman
Everard, Cultural Diversity in International Arbitration: A Challenge for Decision-Makers and
Decision-Making, 7(2) Arb. Int'l 155–64 (1991).
31) Appendix 1 infra contains the challenge provisions of the following Rules: AAA International,
DIS, ICC, ICSID, LCIA and UNCITRAL.
Appendix 2 infra contains the provisions governing challenges of the following national
arbitration laws: UNCITRAL Model Law; English Arbitration Act 1996; Swiss Private
International Law Act; U.S. Federal Arbitration Act.

32) Art. 11.1 ICC Rules; art. 8.2 AAA Int. Rules; art. 10.4 LCIA Rules; art. 9.1 ICSID Rules; art. 25
WIPO Rules; art. 11.1 and 11.2 UNCITRAL Rules.
33) Art. 8.3 AAA Int. Rules; art. 10.4 LCIA Rules; art. 28 WIPO Rules.
34) Art. 8.1 AAA Int. Rules; art. 11.2 ICC Rules; art. 11.1 UNCITRAL Rules; art. 14.4 LCIA Rules; art.
18.2 DIS Rules.
35) Art. 9.1 ICSID Rules.
36) UNCITRAL challenge decision of January 11, 1995, XXII Y.B. Com. Arb. 227–42 (1997).
37) Section 24(5) of the English Arbitration Act 1996 does allow the arbitrator to appear and be
heard before the court.
38) Dominique Hascher, ICC Practice in Relation to the Appointment, Confirmation, Challenge
and Replacement of Arbitrators, 6(2) ICC International Court of Arbitration Bulletin 4.

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 39) Art. 18.2 DIS Rules.
40) Art. 5 of the ICSID Convention.
41) Art. 9(4) ICSID Rules.
42) Art. 6.2 UNCITRAL Rules.
43) Art. 13(2) and (3) Model Law.
44) 9 U.S.C. §§ 1–14 (2001).
45) See Appendix 2 infra.
46) U.S. District Court, Northern District of Illinois, Eastern Division, August 7, 1997, Nos. 97 C
3638, 97 C 3640 and 97 C 3643, XXIII Y.B. Com. Arb. 1046–50 (1998).
47) Tupman, Challenge and Disqualification of Arbitrators in International Commercial
Arbitration, 38 Int'l Comp. L.Q. 26 (1989) (cited in Derains & Schwartz, supra note 23).
48) Art. 13.3 GCCI Arbitration Rules.
49) cf. Appendix 1 infra.
50) English Arbitration Act 1996, § 24(3).
51) cf. supra note 43.
52) Art. 10 AAA Int. Rules.
53) Art. 2.12 ICC Rules (1988); art. 15.1 CCIG Rules.
54) There have been cases, usually involving governments as parties, in which the government
obtained anti-arbitration injunctions from its own state courts. This made it impossible for
the arbitrator from that country to attend arbitral meetings or hearings without violating
the court order. In such situations, institutions with discretionary powers of appointment
can appoint an arbitrator from another country who would not be bound by the injunction.
55) Art. 11.1 LCIA Rules; art. 12.4 ICC Rules (1998).
56) Art. 18 Zurich Chamber of Commerce Arbitration Rules:
Replacement of an Arbitrator
… If the party fails to nominate a new arbitrator and in all other cases, in particular if an
arbitrator was successfully challenged or removed, the President of the Chamber of
Commerce appoints the new arbitrator. (emphasis added)
The arbitration continues with the new arbitrator where his or her predecessor left it.
57) Similarly art.11.2 AAA Int. Rules.
58) Art. 15.2 CCIG Rules; art. 18.3 ZCC Rules.
59) cf. art. 15 of the Greek Law on International Commercial Arbitration (Law 2735/1999) which
added to the text of the UNCITRAL Model Law the following: “The newly constituted arbitral
tribunal shall decide unanimously whether the proceedings will continue from the point
where they were interrupted due to the termination of the mandate of the replaced
arbitrator, unless the parties decide otherwise.” (emphasis added)
60) Antonias Dimolitsa, Les points de divergence entre la nouvelle loi grecque sur l'arbitrage et la
loi-type CNUDCI, 2 Revue de l'arbitrage 227–46 (2000).

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