THE FOUR MUSKETEERS OF ARBITRAL DUTY*
During the past ten years, the intellectual activity of the arbitration community has been marked by an increased emphasis on guidelines, standards and codes of “best practices” for the conduct of proceedings, issued by groups such as the Chartered Institute of Arbitrators, the International Bar Association, the International Chamber of Commerce (ICC) and the American Arbitration Association (AAA). For better or for worse, these have often been called the “soft law” of arbitration procedure, as contrasted with the “hard law” of national statutes and international treaties. Whereas “hard law” offers rules directly giving effect to national norms, “soft law” creates intra-practitioner directives of varying influence aimed at enhancing procedural uniformity among arbitrators and counsel from different judicial traditions.1
Whatever the merits of the particular proposals (and not all commend themselves) the initiatives demonstrate a robust concern for greater precision in the contours of an arbitrator’s duties,2 whose definition remains anything but an easy task, with daunting dimensions that have caused the best of minds to sink beneath the waves of reflection.3 General descriptions will always remain inadequate, given that their expression relies on words connected sequentially, while reality remains stubbornly simultaneous in nature.
As a starting point for discussion, one might suggest three principal obligations of an arbitrator. As we shall see, however, the interaction of these duties will normally implicate a fourth set of responsibilities.
The first duty of an arbitrator remains the rendering of an accurate award, in the sense of fidelity to the text and the context of the relevant bargain, whether memorialized in a private contract or the terms of a public investment treaty.4 The arbitrator should aim to get as near as reasonably possible to an understanding of what actually happened between the litigants, and how the pertinent legal norms apply to the controverted events. That arbitral awards are not generally reviewable for inaccuracy (mistakes of law or fact) in no way diminishes this obligation of the arbitrator to the parties. Arbitration would be a poor substitute for reliable justice if arbitrators were only held to standards constituting grounds for annulment.
The second duty relates to procedural fairness, a capacious notion that incorporates several elements, notably: (i) the responsibility to hear before deciding, often called “due process” or “natural” justice in the Anglo-American legal world, and “principe du contradictoire” in Francophone legal systems; (ii) an obligation to respect the contours of arbitral jurisdiction, or to put the duty in the negative, to avoid decisions which constitute an excess of authority (excès de pouvoir) either under the contract or by reason of some public policy constraint imposed on subject matter arbitrability or procedure; and (iii) observation of the general duty of impartiality and independence.5
The third duty lies in an aspiration toward efficiency, in order to promote the optimum administration of justice. To the extent possible, the good arbitrator will seek to balance the first two goals, accuracy and fairness, to arrive at a counterpoise which reduces the prospect of undue cost and delay.6
In the world of statutes, treaties and court decisions, a violation of the duties of accuracy and efficiency would not normally in itself trigger intervention by a reviewing authority, whether it be a national court or an ad hoc ICSID committee. The possibility that an arbitrator will make a mistake, or be less than efficient, remains a risk assumed by both sides.
By contrast, violation of arbitration’s basic procedural fairness does and should give rise to sanctions. Such scrutiny of procedural fairness also serves to promote accuracy by encouraging arbitrators to listen to both sides before deciding, and permits review of the calculus by which arbitrators aim for efficiency.7
The penalty for breach of an arbitrator’s duty of fairness carries a certain irony, in that sanctions do not fall directly on the arbitrator who breached his or her duty. Although they may suffer a loss of reputation, offending arbitrators can benefit from immunity even for violations of basic procedural integrity.8 The price of misconduct thus falls more directly on the prevailing party, which must suffer annulment of an award for breach of fundamental procedural integrity.
These “Three Musketeers” of arbitrator duty, accuracy, fairness and efficiency, each play an essential role in enhancing and protecting the reliability and neutrality of binding private dispute resolution. The litigants, however, may expect something more.
Fans of the original Three Musketeers will remember that the adventure includes a fourth young man, d’Artagnan, who hopes to become one of the King’s guards.9 Along with his friends Athos, Porthos, and Aramis, he aims to live by the motto “All for one, one for all” (“Tous pour un, un pour tous”). Likewise, an additional responsibility figures prominently in the catalogue of an arbitrator’s duties.
This fourth duty entails arbitrator vigilance in promoting an enforceable award. Prevailing litigants normally hope that the arbitral process will lead to something more than a piece of paper. To this end they expect arbitrators to avoid giving reasons for annulment or non-recognition to any authority called to review the award.