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31 735 (2014)
Enforcing Arbitrator's Obligations: Rethinking International Commercial Arbitrators' Liability

handle is hein.kluwer/jia0031 and id is 757 raw text is: Enforcing Arbitrator's Obligations: Rethinking International Commercial Arbitrators' Liability Dario ALEssI* Liability of arbitrators touches the heart of the concept of arbitration as it affects the legal relationship between the arbitrators and the parties and concerns some essential issues on the nature of the arbitrators mandate. This article intends to propose an alternative conceptual approach to the immunity-based theories, endorsing the suggestion that the arbitrator shall be liable as any normal intellectual service provider for breach of her obligations. Regarding the regime of liability, a systematization is proposed whereby strict liability, fault-based liability and tortious liability cohabitate. This relationship is argued being contractual. The existence of an objective contractual exchange underlies contractual liability for breach. As a consequence, the thesis proposed in this article is that the arbitrator shall be liable for breaches of the obligations contractually incurred. These contractual obligations can be divided into two main clusters, namely, the obligation to decide the dispute submitted and the obligation to provide a fair and equal adjudication. Thus, a dual regime of contractual liability for arbitrators is proposed. A separate set of obligations is represented by the pre-contractual duties of disclosure, which are tort-based. The plain existence of a contractual relationship between the arbitrator and the parties automatically sets aside all those theories claiming that because of the status or for some policy argument, the arbitrator must be immune from liability. As a consequence, any immunity or qualified immunity-based theory is rebutted in favor of a full liability-based conceptual scheme. 1 INTRODUCTORY REMARKS AND METHODOLOGICAL APPROACH A specter is haunting international commercial arbitration, the specter of liability of arbitrators. This paraphrased passage from Karl Marx's Manifesto,' although unusual for this subject matter, seems well fit to describe the current status of liability of arbitrators. Indeed, liability of arbitrators appears like a sort of specter to Managing Partner at Jurisprudentia Attorneys-At-Law; Chairman of the Finnish-Italian Chamber of Commerce; Admitted to the Bar of Finland (Helsinki); LL.M. International Commercial Arbitration (University of Stockholm); MA (Abo Akademi University); Licentiate in Private Law (Abo Akademi University); Master of Law (Rome University La Sapienza). This article is based on a master thesis. The author is sincerely grateful to Assistant Professor Patricia Shaughnessy for the supervision and support received. He is also thankful to Prof. James Gordley for the useful comments received and the guidance given. The famous initial wording used by K. Marx & F. Engels in their Manifesto of the Communist Party are paraphrased here. Alessi, Dario. 'Enforcing Arbitrator's Obligations: Rethinking International Commercial Arbitrators' Liability'.Journal of InternationalArbitration 31, no. 6 (2014): 735-784. © 2014 Kluwer Law International BV, The Netherlands

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