International Commercial Arbitration

Running head: INTERNATIONAL COMMERCIAL ARBITRATION
INTERNATIONAL COMMERCIAL ARBITRATION
Name of the Student
Name of the University
Author Note

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Introduction
Arbitration is grounded upon on a consentient agreement in relation to the parties that are
involved in any kind of dispute. The process of arbitration apparently delivers a private, neutral,
unbiased, proficient and an efficient forum for the resolution of the disputes of the parties. The
process in relation to arbitration is essentially arranged in the agreement that is given effect to by
the involved parties. In this particular process, the concluding and obligatory award that arises
shall be enforceable in all the nations that are members in relation to the ‘Convention on the
Recognition and Enforcement of Foreign Arbitral Awards’ of the year 1958. The aforementioned
Convention is also called the ‘New York Convention’. Approximately, a quantum of 159 nations
are members to the Convention. Dispute resolution in relation to the business and commercial
background remains to be a foremost challenge or problem that the businesses all over the world
have been facing. The capability to pursue different methods in order to resolve disputes instead
of litigation, shall considered to be a great relief for the businesses. The litigation processes in
relation to the commercial and financial disputes are usually very expensive and very lengthy1.
The parties involved in such financial disputes always have second thoughts before going to the
courts for litigation purposes in order to seek legal redress. Hence, the parties involved in such
commercial or financial disputes have consistently preferred to select the private and secluded
manner regarding the resolution of their disputes. Moreover, the processes of the court have been
considered to be wearisome, monotonous as well as time consuming. It has also been claimed by
several parties involved in dispute cases that the decisions that are forwarded by the court in such
commercial matters are, on many occasions, biased. The issue of biasness and partiality is
particularly true in relation to transnational commercial or financial disputes. In case of such
1 Moses, Margaret L. The principles and practice of international commercial arbitration. Cambridge University
Press, 2017.

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international financial disputes, the decisions that are given effect to by the court are mostly
alleged to be unfair and prejudiced towards the party, which belongs to the nation where the
designated court is situated. Commercial and financial disputes happens on a regular basis in the
present world. In the modern world the notion of globalization has pushed the commercial and
financial activities to go beyond the borders of each nation in a manner that has never occurred
earlier. The aptitude and the capability to resolve such financial disputes agreeably and
harmoniously and to the fulfillment or contentment of both the involved parties is considered to
be a huge breakthrough in case of resolution of commercial disputes. The process of arbitration
has gained so much reputation and importance in relation to the transnational framework that it is
presently considered as the principal choice regarding the binding of dispute resolution. Due to
the increase in the importance relating to the process of arbitration, the significance of the
arbitrators and their functionality has also increased. The forum of arbitration is regarded as a
neutral forum. It is considered to be a place where no parties are unfairly or unethically
benefitted, and the neutrality regarding the process of decision making makes the method of
arbitration more appealing to the national court2. This paper forwards a critical discussion and a
critical analysis in relation to the standards regarding impartiality and independence in
connection to the framework of international or transnational commercial or financial arbitration.
Discussion
Independence and Impartiality
According to Lawson, several terms have been utilized in order to provide a description
or an explanation in relation to the neutrality or the impartiality regarding an international
arbitrator. In case of the transnational arbitrators, the Universal Declaration of the United
2 Myburgh, Andrew, and Jordi Paniagua. "Does international commercial arbitration promote foreign direct
investment?." The Journal of Law and Economics 59.3 (2016): 597-627.

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Nations is quoted. It forwards the notion that an international or transnational arbitrator should
be impartial, unbiased and independent. Independence is conventionally explained and
demarcated as freedom and liberty from the authorities. However, it may be said that in case of
international or transnational arbitration, the term ‘independence’ is more often utilized to
provide a description or an explanation in relation to the lack of ties of the arbitrator in
connection to the counsels, parties and the co-arbitrators3.
According to Lawson, in case of both common law jurisdiction and civil law jurisdiction,
an accepted necessity exists. This necessity relates to the fact that an arbitrator should be
independent and autonomous in relation to the parties that are involved as well as the relevant
authorities. The involved parties and the relevant authorities should perceive the arbitrator as
independent and autonomous. It is very important and obvious that in case of a particular process
of arbitration, the prospective clients should trust and have faith in the arbitrator. It is also
essential that the business community should trust and have faith in the arbitrator. Hence, it may
be said that it is rational and sensible that an arbitrator should not only be independent and
autonomous in actuality, rather the arbitrator should be perceived as independent and
autonomous by the third parties that are neutral. However, it may also be mentioned that the term
‘impartial’ generally provides an explanation in relation to the state of mind of the arbitrator. In
order to be impartial and unprejudiced, there should not exist any kind of biasness in relation to
the arbitrator regarding the involved parties or the counsel of the involved parties. It may be said
that it might be difficult and problematic to determine regarding the facts that whether a
particular arbitrator is unbiased and impartial. It is generally acknowledged and deliberated that
3 Jemielniak, Joanna. Legal interpretation in international commercial arbitration. Routledge, 2016.

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if an act of impartiality is demonstrated, then the arbitrator shall be considered to be
independent4.
According to Christopher R. Drahozal & Richard W. Naimark, it may be said that
commercial and financial arbitration on the international level has enjoyed and relished
increasing fame, reputation and popularity. The fame and popularity of the method of arbitration
has provided the status of the alternative in relation to the process or method of litigation. The
method regarding arbitration is grounded on the notions relating to justice and fairness. Central
to such notions are the concepts regarding impartiality, independence and neutrality. Such
concepts are closely and intricately connected to the arbitral proceedings. As per the
aforementioned writers, it may be said that the parties that are involved in the process or method
of arbitration, expect high standards, morals and values in relation to the arbitrator who is
appointed. It may be said that the whether the parties, who are involved in the arbitration
process, will follow and adhere to the notions and concepts mentioned above, shall depend upon
the arbitrators that are appointed. However, it may be said that even though the concepts relating
to independence, neutrality and impartiality may be comprehended to be similar notions by
certain critics or observers, the neutrality in relation to an arbitrator is considered to be way
beyond the concepts regarding impartiality or independence. The concepts relating to
independence and impartiality are frequently utilized synonymously in order to replicate the
unbiased and unprejudiced quality, which should be possessed by the arbitrators. The
aforementioned terms are frequently and repeatedly utilized interchangeably. The
aforementioned terms, although connected to each other, are conceptually dissimilar. Impartiality
is measured and evaluated in a subjective manner while the independence assumes and
4 Rodríguez, José Antonio Moreno. "Effectiveness of International Commercial Arbitration as a Dispute Settlement
Mechanism." Enforcement and Effectiveness of the Law-La mise en oeuvre et l’effectivité du droit. Springer, Cham,
2018. 87-106.

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implements a test for objectiveness. Neutrality, in a similar manner as to the independence,
replicates an objective status. Neutrality necessitates that an arbitrator should be equidistant,
intermediate and transitional in action and thought all through the process of arbitration.
Contrariwise, the concept of impartiality is considered to be subjective. It has been stated that the
concept of neutrality is considered to of abstract nature. Neutrality mandates an investigation or
an examination in order to conclude the evidence relating to bias or prejudice, which may
actually be problematic and challenging to institute in the practical world. Hence, there should be
a necessity to be fully aware regarding the exterior conduct and comportment by which the state
of mind of the arbitrator may be determined. An absence of neutrality does not always lead to
partiality, nonetheless, if an arbitrator behaves and comports in a partial manner, then that
particular arbitrator cannot be considered to be neutral5.
According to Susan D. Franck, the notion of neutrality in relation to the framework of
international and transnational arbitration is considered to have two traits or facets. The first one
is that the involved parties opts for the method of arbitration because it forwards a neutral
platform. In this case, the parties that are involved shall not have the ability to gain the benefit
regarding a domestic court. The second one is in relation to the nationality regarding the
arbitrator. In case of circumstances where a sole arbitrator is appointed by the involved parties, it
is always proposed and recommended that the nationality regarding the individual who is
appointed, must be independent and autonomous in relation to the nationalities regarding the
parties that have appointed the arbitrator. This methodology must be adhered to when the
arbitrators appointed by the parties hire another governing arbitrator. In relation to the neutrality
regarding arbitrators appointed by the parties, it has been acclaimed and recommended that any
5 Walker, Janet. "Privatizing Dispute Resolution and Its Limits: International Commercial Arbitration and National
Courts." Privatizing Dispute Resolution. Nomos Verlagsgesellschaft mbH & Co. KG, 2019.

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particular arbitrator who is appointed by a particular party, might be predisposed and prejudiced
by the desired outcome of the party who appointed that particular arbitrator. However, according
to Ilhyung Lee, it may be said that the concept of neutrality essentially relates to the
predisposition and susceptibility of the arbitrator in relation to a party privately or in relation to
the position or locus regarding a particular party, and as stated or mentioned, such susceptibility
and predisposition has usually been acknowledged and accepted as occasioning from the culture
and nationality that is shared by the one of the involved party and the arbitrator6.
According to the decision forwarded in the case of National Grid Plc v The Republic of
Argentina, LCIA Case No. UN 7949 (2005), it may be said that a transnational arbitrator must be
neutral in relation to the political structure, the legal structure and the nationalities regarding both
the involved parties7. It has also been stated that such international arbitrator must successfully
retain an extraordinary degree relating to international mindedness. According to Donahey, the
connection in relation to the notion of neutrality and the idea of nationality is grounded and
established on the postulation or supposition that a particular arbitrator, who belongs to a culture,
language and nationality that is similar to one involved party among the other involved parties,
will be inclined, considerate and compassionate towards that particular party during the process
of arbitration. In relation to the supposed inclination of the arbitrator, clear and apparent
concerns shall exist in relation to the fairness regarding the process and the final prize or award.
It may be said that the adequacy and the appropriateness in relation to the award shall be reliant
on the credibility, quality and skills regarding the arbitrators. While the aforementioned
explanation may only be a presumption and might not be practical in most scenarios, the alarms
and apprehensions in relation to bias or prejudice, or the insight or discernment regarding bias or
6 Feldman, Mark. "'One-Stop'Commercial Dispute Resolution Services: Implications for International Investment
Law." Available at SSRN 3471695 (2019).
7 National Grid Plc v The Republic of Argentina, LCIA Case No. UN 7949 (2005).

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prejudice, have been adequate enough to the extent that the universal practice is to choose
individual arbitrators and governing arbitrators who all belong to nationalities that are distinct
and diverse in relation to the nationalities regarding the parties that are involved in the
arbitration. However, according to Blackaby and Partasides, it has been contended by others that
a general viewpoint or perception that is connecting neutrality in relation to nationality must not
be generalized. It has been stated by such contenders that any particular arbitrator who functions
as a ‘neutral’ individual, irrespective of the nationality, should be considered as satisfactorily and
adequately competent and capable to utilize their judgment and knowledge in order to govern
and conclude the arbitration in the interests and favor of the involved party, which forwards the
superior case8.
According to Murray L. Smith, it may be said that notwithstanding the contentions, it is
very much clear that neutrality is connected to nationality. It has also been advocated by certain
analysts that impartiality, neutrality and independence are all similar and identical ideas.
However, as per Bruno Manzanares Bastida, it may be said that there are noticeably or evidently
dissimilarities, variances or distinctions as the notion of neutrality is more related to the insight
or discernment of bias instead of the actual bias or prejudice, and is hence, it is considered to be
dissimilar and distinct from the concept of impartiality, which is related to actual bias, and
accepts and implements a subjective test9.
Rules and Guidelines
According to Donahey, it must be mentioned that the prerequisite or condition that the
nationality regarding any particular arbitrator should be dissimilar and distinct in relation to the
8 Chen, Meng, and Chengzhi Wang. "Vanishing set-aside authority in international commercial
arbitration." International and Comparative Law Review 18.1 (2018): 127-154.
9 Martin, Wayne. "An Australian approach to international commercial arbitration." Brief 45.2 (2018): 24.

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involved parties, has been replicated by several rules and guidelines relating to international
commercial or financial arbitration. Some of these rules or laws include the ‘United Nations
Commission on International Trade Law’ (UNCITRAL), the ‘American Arbitration Association
International Arbitration Rules’ (AAA Rules), the ‘Arbitration Rules’ (UNCITRAL Rules), the
‘International Chamber of Commerce Arbitration Rules’ (ICC Rules), the ‘London Court of
International Arbitration Rules’ (LCIA Rules), and ‘World Intellectual Property Organization
Arbitration Rules’ (WIPO Rules). It may be said that the ‘UNCITRAL Model Law’ relating to
International Commercial and Financial Arbitration (the Model Law), forwards a different kind
of opinion in connection to the aforementioned subject. The Model Law states that nationality
shall not be considered to be a reason or cause for prohibiting or preventing an arbitrator, where
there is no existence of any kind of agreement in contradiction to the aforementioned aspect, by
the involved parties. However, this common methodology is alleviated in the framework, in
which there exists a sole arbitrator or a presiding arbitrator, and it may be mentioned that the
Model Law mandates that concept relating to nationality must be reflected and deliberated in
such situations10.
According to the IBA Guidelines in relation to international arbitration, it may be said
that the increasing quantum of problems and difficulties have been triggered or instigated by the
‘conflicts of interest’ regarding international financial and commercial arbitration. In order to
reduce or curtail disclosures, revelations, withdrawals and extractions by arbitrators that are not
necessary, a group of experts from around the world has been formed and established by them, in
order to comprise and constitute guidelines and rules in relation to ‘conflicts of interest’
regarding international arbitration. The chief purpose and objective regarding the guidelines and
10 Binder, Peter. International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions.
Kluwer Law International BV, 2019.

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the rules was considered to be harmonization and synchronization in relation to the standard of
impartiality and independence in connection to international financial and commercial
arbitration. It must be mentioned that the guidelines and the rules have been created into two
fragments. The first one comprises of the general standards and criteria that articulates and
forwards the principles, which should provide guidance and direction to the parties, arbitrators,
and the arbitral organizations, when such organizations consider and deliberates regarding any
probable and likely bias. The second one contains a list consisting of particular circumstances
that are meant to provide practical and applied guidance and direction. This particular list is
separated into three distinct fragments11. The first one is the red list. It provides description and
explanation in relation to circumstances in which any particular arbitrator should not agree and
assent to an appointment, or withdraw himself when he is already appointed. The guidelines and
rules states that certain specific circumstances as mentioned in the red list, shall be considered to
be non-waivable, for instance, when a particular arbitrator has noteworthy or substantial
pecuniary interest in relation to any particular party or in relation to the consequence regarding
the case. The orange list is considered to be a non-comprehensive or non-extensive details
regarding particular circumstances, which, as per the parties, may result in justifiable and
reasonable doubts and suspicions in relation to the independence or impartiality of the arbitrator.
The green list forwards description and explanation regarding circumstances in which the rules
and guidelines not only disallow or disclaim disclosure or revelation, it also does not allow or
acclaim the withdrawal by any particular arbitrator. These circumstances consist of legal
opinions that are expressed previously and services that have been previously forwarded by the
law firm of the arbitrator in relation to one party regarding a matter that is unrelated, without any
11 Bantekas, Ilias, et al. "UNCITRAL Model Law on International Commercial Arbitration: A Commentary."
(2019).

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kind of participation of the arbitrator. Doubtfully and questionably the green list also contains
circumstances that are described and explained in the aforementioned orange list, for instance,
previous services in relation to a particular party among other parties, when a time period of
more than three years have gone by12.
According to the guidelines, it may be said that the arbitrator shall be obligated to
disclose or reveal circumstances that is forwarded in the orange list. In the circumstances, as
provided in the orange list, the parties shall be
considered to have acknowledged the arbitrator if, after the disclosure or revelation is made, no
objection or demurral is made in a timely manner. The general standard of the IBA advises and
proposes a time period of a quantum of thirty days for the parties to raise any kind of complaints
or objections. Such circumstances consist of the earlier services and amenities in respect of one
among the involved parties within the time period of previous three years. Such circumstances
also include the relations regarding an arbitrator and a counselor a co-arbitrator. As per
Arbitration Rules of the Stockholm Chambers of Commerce [SCC Rules] and the Swedish
Arbitration Act [SAA], it shall be the obligation of an arbitrator to be independent and impartial.
According to the Government Bill 1998/1999, it may be said that there is no word that may be
equivalent and correspondent in relation to the term ‘independence’ in the SAA. However, it
must also be said that as per the legislative or the lawmaking history, in certain cases in which a
particular situation is present in a manner that the independence and the liberation regarding an
arbitrator may be justifiably and reasonably questioned or suspected, then the impartiality of the
arbitrator may also be questioned13.
12 Hill, Jonathan. "Claims that an arbitral tribunal failed to deal with an issue: the setting aside of awards under the
Arbitration Act 1996 and the UNCITRAL Model Law on International Commercial Arbitration." Arbitration
International 34.3 (2018): 385-414.
13 Wilske, Stephan, Todd J. Fox, and Thomas Stouten. "THE VIEW FROM EUROPE WHAT'S NEW IN
EUROPEAN ARBITRATION?." Dispute Resolution Journal 73.4 (2018): 107-115.

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According to the SAA, that is applicable in relation to the arbitration cases that might be
taking place in the nation of Sweden, any individual who enjoys a complete legal capability in
relation to his property, his conduct and his actions, may fulfill the role of being an arbitrator. It
has been mentioned by SAA that any particular arbitrator should be impartial and unbiased. If a
particular circumstance occurs in which the confidence, trust and faith of an involved party in
relation to the impartiality of the arbitrator is diminished, then, on the request of that particular
party, the arbitrator may be discharged. Such a circumstance may arise when the arbitrator is
closely and intricately related or connected to one of the involved parties. As per section 39 as
provided in the SAA, it may be said that any particular agreement in connection to any kind of
compensation regarding the arbitrators, which is not established or given effect to by the parties
jointly, shall be considered to be void. It must be mentioned that a particular arbitrator may also
be discharged or disqualified because of partiality, which might be not provided in the SAA14.
However, considering the facts mentioned above, it should be said that this particular Act (SAA)
do serve as a significant guideline, instructions and parameter in relation to the circumstances
that may cause justifiable and reasonable doubts and questions regarding the impartiality and the
independence of the arbitrator15.
Important Acts and Cases
Relevant cases should be discussed in this regard. The case of Locabail (UK) Ltd v
Bayfield Properties Ltd [1999] EWHC 261 shall be considered to be a significant case in relation
to international arbitration16. In this particular case, the court delivered a clear and unblemished
guidance and direction in relation to probable circumstances in which any lack of independence
14 Swedish Arbitration Act, 1999.
15 Cullborg, Joel Dahlquist. "The Role of the Swedish Supreme Court in International Arbitration." b-Arbitra|
Belgian Review of Arbitration 2019.2 (2019): 469-482.
16 Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWHC 261.

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and freedom regarding any particular arbitrator in connection to an involved party may not be
raised by the other involved party. Such circumstances may include prior political relations, prior
memberships and affiliations regarding sporting or social or charitable organizations, masonic
connotations, or situations where the stand-in arbitrator formerly received commands and orders
to perform for or against any particular advocate, party or solicitor involved in an arbitration, or
being a member of any law association. However, in the aforementioned case, it has also been
stated that to the contrary, a real and an actual danger regarding bias and prejudice may arise in
relation to circumstances in which there exists a private friendship and bond, a close
acquaintance or associate or colleague, or a situation of animosity, hatred and hostility in relation
to the arbitrator and the involved parties in the process of arbitration. It has been stated in this
case that the credibility and the trustworthiness regarding the arbitrator is primarily important
when an award is to be forwarded in relation to a particular involved party. The case of Rustal
Trading Ltd. v. Gill & Duffus SA [2000] CLC 231 shall be considered to be another relevant case
in this regard17. In this particular case, a particular arbitrator was formerly involved in a
particular process of arbitration in relation to a consultant working for the plaintiff. It was held
that the former process of arbitration happened in time period that was two years earlier and such
arbitration process could not be labeled or defined as recent. Further, it was stated that no such
thing existed that might specify that the arbitrator conserved any kind of animosity, hatred or
hostility in relation to the consultant. According to Carly Coleman, it may be said that the
English Courts have primarily stated that the maximum quantum of arbitrators have substantial
and noteworthy experience and understanding and are extremely knowledgeable and well-
informed. Hence, relation to the fact that there is a limited quantum of arbitrators, it very much
expected and possible that the arbitrators will be involved because of the dealings either in
17 Rustal Trading Ltd. v. Gill & Duffus SA [2000] CLC 231.

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relation to the parties or in respect of one another before. However, according to William Lucy,
it should be mentioned that impartiality and independence provides description and explanation
in relation to the same thing, although in separate ways. The notions in relation to impartiality
and independence have been implemented into the rules and guidelines in relation to the
international arbitration organizations, which acts as an obligation for the arbitrators so that the
arbitrators may act in a fair and an unbiased manner. The rules as provided in UNCITRAL, the
rules as provided in AAA, the rules as provided in LCIA Rules and the rules as provided in
WIPO levy the necessity and prerequisite on the arbitrators to perform their actions in a fair
manner and without any kind of bias or prejudice in the course of the proceedings. As eminent,
the rules as provided in ICC also comprise necessities and prerequisites regarding independence
and impartiality18.
According to James H. Carter, it may be said that the Model Law has been developed by
UNCITRAL in order to provide assistance to the nations in improving, reforming, remodeling,
restructuring, modernizing and updating their laws in relation to process of arbitration. Such
Model Law has been developed by UNCITRAL so that specific features, facets and requirements
in relation to international commercial and financial arbitration may be taken into account. It is
considered to be a representative of the obligations relating to impartiality and independence of
the arbitrator in modern and up-to-date arbitration legislation. Such Model Law has been
considered to be a template for the acceptance and implementation of statutes relating to
domestic arbitration in approximately eighty nations19. It has been stated by the Model Law that
if such conditions exist, which might cause justifiable and reasonable doubts and questions in the
18 Carmody, Matthew. "Overturning the presumption of confidentiality: should the UNCITRAL rules on
transparency be applied to international commercial arbitration." Int'l Trade & Bus. L. Rev. 19 (2016): 96.
19 Zumbansen, Peer, and Maria Panezi. "United Nations Commission on International Trade Law (UNCITRAL)."
(2018).

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minds of the involved parties regarding the independence or impartiality in relation to an
arbitrator, then such conditions may act as the foundation upon which that particular arbitrator
might be confronted and challenged. As per Born, it may be said that the ‘justifiable doubts’
standard or principle is regarded as an objective one20. Such standard or principle does not
mandate any kind of evidence in connection to certainty or possibility of any dependence or
partiality. However, it may be said that although numerous jurisdictions have accepted and
implemented a similar and alike method as that of the Model Law in relation to their national
law, the nation of England is considered to be an exception. It should be mentioned that the
English Arbitration Act of the year 1996 does not make any kind of independence mandatory21.
The aforementioned Act does not necessitate or mandate the facet of independence in relation to
an arbitrator in the process of arbitration. As per the Act mentioned above, the arbitrators need
not disclose or reveal their interests. Only the concept of impartiality exists in the Act stated
above. Section 24 as provided in the Act mentioned above, states that a particular ground, on the
basis of which any particular arbitrator might be removed, is when the conditions are present that
may result in justifiable and reasonable doubts and questions in relation to the impartiality of the
arbitrator. Furthermore, Section 33 as provided in the aforementioned Act, which relates to the
general obligation or responsibility in relation to the arbitral body, levies the prerequisite that the
arbitral body should perform their actions in an impartial and a fair manner in relation to the
involved parties. Such idea seems to be grounded on the understanding and conception that
because of the fact that the process of arbitration is considered to be consensual, an absence of
independence or freedom is not important, unless such absence leads to justifiable and
reasonable doubts or questions in relation to the impartiality or fairness regarding the arbitrator.
20 Petsche, Markus A. "Choice of Law in International Commercial Arbitration." Private International Law.
Springer, Singapore, 2017. 19-37.
21 English Arbitration Act, 1996.

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The case of Stretford v. Football Association Ltd [2007] EWCA (Civ) 238 shall be considered to
be a significant case for the aforementioned purposes22. In this particular case, it was observed by
the Court that an absence of the facet of independence shall be considered to be important, only
if such absence results in justifiable and reasonable doubts and questions. In such a situation, it
shall be possible to remove the arbitrator because of the absence of impartiality. Another cause
that enthused and encouraged the explicit and unambiguous exclusion and segregation regarding
the term ‘independence’ was that if the term was comprised or included, then such inclusion may
result limitless and never-ending challenges. The term was not included because almost any
remote link or relation regarding the arbitrator and a particular involved party might be equipped
as a base or foundation in order to challenge and test the independence and freedom regarding
the arbitrator. Such actions may subsequently cause a significant reduction or decrease in the
availability and accessibility of expert and skilled individuals who might fulfil the role of
arbitrators23.
According to William K. Slate, it may be said that the test or assessment, in relation to
the determination of justifiable and reasonable doubts regarding the impartiality of the arbitrator,
is to consider and evaluate that whether there exists any actual possibility that the arbitrator was
prejudiced and biased. For such purposes, the circumstances cited and presented by the involved
party that challenged the impartiality regarding the arbitrator, must be taken into consideration.
The pertinent legal customs and traditions and the cultures, should also be taken into
consideration. As stated earlier, the concern in relation to the impartiality and the biasness of the
arbitrator has also been imitated and revealed in the Model Law (created by UNCITRAL).
Several rules and guidelines in relation to arbitration state that it shall be the obligation of the
22 Stretford v. Football Association Ltd [2007] EWCA (Civ) 238.
23 Zhao, Mary. "Transparency in International Commercial Arbitration: Adopting a Balanced Approach." Va. J. Int'l
L. 59 (2019): ii.

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arbitrators to disclose and reveal any situations that may lead to justifiable and reasonable doubts
regarding the independence or impartiality of the arbitrator. It has also been specified that such
obligation in relation to the arbitrators initiates prior to the appointment of the individuals as
arbitrators and such obligation remains an ongoing duty all the way through the process of
arbitration24. However, it may be said that in the nation of United States, the consequences for
actions relating to partiality and biasness on the part the arbitrator, are not so severe. Section 10
as provided in Federal Arbitration Act of the nation of United States mentions that the partiality
on the part of the arbitrator that might be evident and obvious, shall be regarded as a particular
condition on the basis of which any particular arbitral award might not be given and might be set
aside25. Hence, the aforementioned provision has been branded and categorized as less effective
and less direct in comparison to the other laws relating to arbitration in the developed nations or
jurisdictions. The aforementioned Act has been considered to be less effective or less direct
because there is no provision in the Act in relation to the removal or discharge of the arbitrators.
The Act does forward any provision regarding interlocutory challenges. The Act mentioned
above also does not deal with or address the principles relating to independence and impartiality
that is prerequisite regarding the arbitrators, in a direct manner. This particular Act only contain
provisions in relation to the vacating of an arbitral award regarding the impartiality of the
arbitrator. The foremost case in the nation of the United States in relation to such issue is the
case of Commonwealth Coatings Corporation v. Continental Casualty Company (1968) 393 U.S.
14526. In this case, an award was set aside by the Supreme Court and the decision was grounded
on the code relating to evident and obvious partiality. Such decision was forwarded because the
governing arbitrator was unsuccessful in disclosing a time period of approximately four years
24 Drahozal, Christopher R. "The State of Empirical Research on International Commercial Arbitration: 10 Years
Later." The Evolution and Future of International Arbitration: The Next 30 (2016).
25 Federal Arbitration Act, 1926.
26 Commonwealth Coatings Corporation v. Continental Casualty Company (1968) 393 U.S. 145.

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regarding the consulting relationship in relation to a particular party involved in the arbitration.
However, it may be said that the Court was unsuccessful in delivering a clear and an
unambiguous standard or principle in connection to independence and impartiality.
The English courts accepted and implemented differing standards in relation to the
impartiality and biasness of the arbitrators at numerous phases. In the case of R v. Mulvihill
[1990] 1 All ER 436, the issue was in relation to the arbitrator was ‘reasonable suspicion’27. In
the case of AT&T Corporation v. Saudi Cable Co. [2000] EWCA Civ. 154, the issue was in
relation to the arbitrator was an actual possibility or an actual danger of biasness28. In the case of
R v. Gough [1993] 2 All ER 724, the arbitrator was to automatically disqualified for having a
pecuniary interest in relation to an involved party29. However, as per Born, it may be said that the
courts and the lawmakers in the nation of England have often failed to deliver an explanation in
relation to any kind of differences regarding the diverse categorizations. Presently, the existing
standard or principle for challenging an arbitrator in the nation of England, is grounded on the
fact that whether a nondiscriminatory, fair-minded and a well-informed observer would
determine that an actual possibility existed in connection to the fact there was no impartiality
regarding the arbitral tribunal. The aforementioned standard was established in the case of
Porter v. Magill [2001] UKHL 6730. Other nations having jurisdictions of Common Law, such as
the nations of South Africa and Australia, have accepted and implemented less arduous
standards. These nations only contemplate that whether an ‘apprehension’ of bias or a
‘reasonable suspicion’ exists.
27 R v. Mulvihill [1990] 1 All ER 436.
28 AT&T Corporation v. Saudi Cable Co. [2000] EWCA Civ. 154.
29 R v. Gough [1993] 2 All ER 724.
30 Porter v. Magill [2001] UKHL 67.

18INTERNATIONAL COMMERCIAL ARBITRATION
Conclusion
In the conclusion it may be said that the process of arbitration has been regarded as a
favored select as a proficient and an effective apparatus in order to resolve international
commercial and financial disputes. It offers the parties, which are entangled in any kind of
dispute, an opportunity to assign arbitrators of their own and hence, cause a reduction in the
possibility of denial of justice. The process relating to arbitration also forwards an opportunity to
the involved parties to have a speedy and prompt out-of-court settlement, and the decision that
are forwarded by the governing arbitrators, shall be considered to be lawfully binding and
obligatory. Commonly, international arbitration shall pursue to determine and decide the disputes
and issues, which might ascend from the application and enforcement of numerous international
treaties, conventions and agreements. Since diverse and distinct nations generally have distinct
arrangements regarding laws, the process of arbitration aids and assists in order to overcome the
dissimilarities and variances that might be caused because of such deviation of law. The process
of arbitration delivers a cordial and harmonious resolution regarding the disputes without the
help or utilization of the legal system belonging to any single specific nation. The standards
regarding impartiality and independence is considered to be a significant feature in connection to
the framework of international or transnational commercial or financial arbitration. This paper
have discussed such feature in connection to the role played by the arbitrators. This paper has
forwarded a critical discussion and a critical analysis in relation to the standards regarding
impartiality and independence in connection to the framework of international or transnational
commercial or financial arbitration.

19INTERNATIONAL COMMERCIAL ARBITRATION
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