How to challenge an arbitrator's independence and impartiality

Challenges to an arbitrator’s independence or impartiality are not everyday events, and successful challenges are rare.

Arbitral rules and laws routinely provide for a mechanism to challenge arbitrators on the basis of a lack of independence or impartiality, but such challenges on these grounds are, at least in the English courts, not often sustained. This is, hopefully, because where there is an obvious doubt as to independence or impartiality, the arbitrator has seen the light and resigned. If that is correct, it must mean that those cases which come to court represent either situations where the party has a genuine concern as to the independence or impartiality of the arbitrator, but the issue is not clear cut and so the party is looking to the court for assistance, or instances where the challenge is tactical, in which case it stands only a slim chance of success.

This article examines:

• the fundamental requirement that an arbitrator be independent and/or impartial
• the various sources of legislation and guidance
• mounting a challenge to independence and impartialit
• examples of what not to do

This article was originally published in the PLC Cross-Border Arbitration Handbook 2008/09 and is reproduced with the permission of Practical Law Company Ltd.

Jonathan Cotton (partner)