1. That an arbitrator has knowledge about a given legal institution and presents it, evaluates specific legal institutions and financial instruments, conducts lectures and writes publications, does not constitute a circumstance raising doubts, let alone justified doubts, as to his impartiality and independence.
2. Publication of comments of an expert nature on specific subjects, analyzing them, preparing private opinions for other entities resulting from a broader analysis of practices on the foreign exchange market, reflecting all of the market participants and their intentions, does not constitute a circumstance disqualifying an arbitrator.
3. Under Civil Procedure Code Art. 1173 §1, an arbitrator must be an independent and impartial person. These are fundamental characteristics required of an arbitrator, as an element of the right to a fair trial is the party’s right to consideration of its case by an impartial and independent court. This has to do with the absence of relations between the arbitrator and the parties to the dispute that could affect the substance of the award.
4. The IBA Guidelines on Conflicts of Interest in International Arbitration … are designed to assist in the practice of determining the circumstances that may generate justified doubts as to an arbitrator’s impartiality and independence, which circumstances are subject under applicable national law to mandatory disclosure by a candidate for arbitrator, and which are justified by the open-ended nature of the concepts of “impartiality” and “independence.” The guidelines are not of normative relevance, but establish certain standards on how to evaluate specific situations from the point of view of the requirement for the arbitrator’s impartiality and independence. They are commonly recognized in arbitration practice as a document in the nature of best practice, indicating circumstances that enable an assessment, particularly in ambiguous situations. The document sets forth general standards concerning impartiality, independence and disclosure, and a detailed section with examples of conflict of interest, classifying them in terms of the possible occurrence of justified doubts as to an arbitrator’s impartiality and independence.
5. Civil Procedure Code Art. 1174 §2 is devoted to the issue of removal of an arbitrator, providing that an arbitrator may be removed only when circumstances exist generating justified doubts as to his impartiality or independence, although there is a sound argument that the circumstances involving a state court judge can help interpret this section by analogy. When evaluating this condition, objective criteria of assessment are relevant, not the subjective beliefs of the party filing the challenge.
6. In a situation where a party aware of circumstances that could give rise to justified doubts as to an arbitrator’s impartiality or independence does not exercise its rights, it forfeits the right to reserve them until filing an application to set aside the arbitration award (Civil Procedure Code Art. 1193). A party aware of a given circumstance cannot passively wait to see what kind of award is issued in the case and then condition its actions with respect to challenging the arbitrator on the result. What is relevant is that the circumstances relied on by the party were known to the party, and when they were known.
7. Whether a party exercised its right to present to the state court the ruling on the issue of the existence of grounds to remove an arbitrator is relevant to the further course of the proceedings. In a situation where the party did not challenge the arbitrator before the state court pursuant to Civil Procedure Code Art. 1176 §2, the party forfeits this basis for subsequent challenge to the arbitration award using an application to set aside the award relying on the grounds concerning the arbitrator which were previously existing and known to the party.