The Influence of Violation of the Independence and Impartiality Rules on the Enforceability and Effectiveness of the Arbitral Award
pages 151 - 170
ABSTRACT:

The rules of independence and impartiality of arbitrators are guaranteed by various mechanisms. These include the duty imposed upon an arbitrator to disclose any circumstances likely to give rise to doubts as to their impartiality or independence or the parties’ right to challenge an arbitrator. A procedural error that leads to the violation of the principles of independence and impartiality of arbitrators may constitute grounds for refusal of the recognition or enforcement of an arbitral award as specified in Article V of the New York Convention (NYC). Depending on what kind of procedural error has occurred, a different ground for the refusal of the recognition or enforcement may come into question. The power of the recognition and enforcement court to refuse the recognition of an arbitral award ex officio regardless of the initiative of the parties to the proceedings is, however, crucial. If a violation of the rules of the arbitrator’s independence and impartiality in the course of the arbitral proceedings turns out to be an infringement of the principles of due process of law, then not only does the refusal of the recognition of an arbitral award support the protection of the public policy of the state in which the recognition is sought, but it also contributes to the increase of trust of the parties to the arbitration as an alternative and fair method of dispute resolution.

keywords
arbitrator’s disqualification
arbitrator’s misconduct
challenge of arbitrator
enforcement proceedings
impartiality of arbitrators
New York Convention
Polish arbitration law
public policy (ordre public)
recognition or enforcement of foreign arbitral awards
about the authors

Dr. Barbara Jelonek-Jarco is an attorney at law and partner at the Polish law firm of KKG Kubas Kos Gaertner, coordinating the work of the real estate department. She has participated in numerous court and arbitration proceedings for institutional clients. She also focuses her practice on such fields as company law and private commercial law. Dr. Jelonek-Jarco is the author of numerous articles, commentaries, didactic publications and monographs on civil and constitutional law.

Email: barbara.jelonek@kkg.pl

Dr. Julita Zawadzka is an attorney at law at the Polish law firm of KKG Kubas Kos Gaertner. She has appeared in numerous court proceedings in the scope of civil law. She also is experienced in commercial law, in which she represents companies, among others, from the construction, energy, financial, and trade sectors. Dr. Zawadzka is the author of numerous articles, commentaries, didactic publications and monographs on civil and constitutional law.

Email: julita.zawadzka@kkg.pl