7 J. Int'l Arb. 7 (1990)
Civil Liability of Arbitrators - Comparative Analysis and Proposals for Reform

handle is hein.kluwer/jia0007 and id is 355 raw text is: Civil Liability of Arbitrators-Comparative
Analysis and Proposals for Reform
If parties to a legal controversy choose arbitration as an alternative method of
domestic or international dispute resolution, they usually do so because it appears to
be more expeditious, less expensive, more confidential and more informal than
litigation.' They may also prefer arbitration over litigation because it offers them a
more or less extended influence on the selection of the person(s) empowered to
resolve the conflict at hand: the arbitrator(s).2 These individuals are selected by the
parties for two main reasons. Firstly, because they are persons in whom the parties
place their trust and confidence3 and secondly, because they are experts in the specific
field and, therefore, often better qualified than judges to resolve the dispute at hand.4
Due to the growing use of arbitration as an attractive alternative to court litigation,
arbitrators have gained 'increasing importance and responsibility as-frequently
final-adjudicators of substantial national and international legal disputes.
Yet a party's (or both parties') initial confidence in the arbitrator's integrity- is
sometimes frustrated in the course of arbitration proceedings, in so far as the
arbitrator may negligently or even fraudulently disregard his duties or purposely
misuse his authority. In some of these instances, national legal systems and arbitration
rules of organizations sponsoring arbitration, provide for procedural remedies against
arbitral misconduct. If the arbitral proceedings turn out to be unfair from the very
beginning, a party may succeed in removing the arbitrator from his office prior to the
* Mag. iur., Vienna; Dr. iur., Vienna; LL.M., Harvard; Member of the New York bar; Foreign Associate
with Cole Corette and Abrutyn, Washington, D. C., U.S.A.
See, e.g., M. Domke, The Law and Practice of Commercial Arbitration, S 2:01 (Rev. Ed., Wilner 1984); S.
Goldberg, E. Green and F. Sander, Alternative Methods of Dispute Resolution 189-190 (1985). The reasons for
choosing arbitration for domestic or for international dispute resolution do not coincide. There are also
noteworthy exceptions to the advantages of arbitration. See, e.g., Graving, The International Commercial
Arbitration Institutions: How Good A job Are They Doing?, 4 Am. U.J. Int'l L.Pol'y 319, 324 (1989).
2 The degree of influence depends on the various procedures for constituting the arbitral tribunal. The
influence is at its peak if parties can directly nominate the arbitrator (see M. Domke, supra footnote 1, at S 20:02),
weaker if the arbitrator is chosen by an agency (M. Domke, supra footnote 1, at S 20:01) and inexistent in the case of
court appointed arbitrators (M. Domke, supra footnote 1, at S 20:01).
Bucher, Zur Unabhingigkeit des parteibenannten Schiedsrichters, F.S. Kummer 599 (1980).
' Bedjaoui, The Arbitrator: One Man-Three Roles, 5J. Int. Arb. 1, p. 7, 10 (1988); M. Domke, supra footnote
1, at 2:01.
Although the arbitrator is frequently appointed by one party only or by an appointing authority, he is a
trustee for both parties since the appointing authority acts pursuant to a delegation from both parties. Each
arbitrator therefore owes the same duties to both parties.
Copyright  2007 by Kluwer Law International. All rights reserved.
No claim asserted to original government works.

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