id: 40017

Maciej Łaszczuk

A Few Remarks on the Duties, Independence and Impartiality of Arbitrators

Nothing can do more harm to an arbitration proceeding than an arbitrator who does not possess the appropriate qualifications. An honest, diligent and competent arbitrator will not only resolve a dispute effectively by issuing an award that is lawful and understandable to the parties, after fairly and efficiently conducting the proceeding; but equally important, such an arbitrator will also enhance the prestige of arbitration as a method for resolving disputes. In line with the well-known principle, the negative influence of an inappropriate arbitrator¹ on the prestige of arbitration far outweighs the positive influence of a good arbitrator. For a permanent arbitration court competing for clients—businesses including in their contracts a clause calling for arbitration before this court, i.e. potential parties to a dispute—it is no longer sufficient to eliminate things that bother clients. Even customer satisfaction is no longer enough to maintain customer loyalty. Truly loyal clients are customers who are highly satisfied. The priority should thus be to provide clients services of truly exceptional value.²

Resolving disputes through arbitration is a service, and thus all of the laws of the market apply to arbitration. This is not changed by the fact that arbitration performs a function complementary to the justice system (although formally it is not part of the justice system). After all, the state courts also provide a service.³

Arbitration is only as good as the arbitrators. This familiar but accurate saying contains the answer to the question of how to satisfy clients, and thus how to maintain and improve the position of the court. The quality of the services performed by the arbitrators should be the priority for a permanent arbitration court. The rules of the permanent arbitration court and the practice in applying them by the arbitration panels and the authorities of the court should provide a guarantee of the highest quality. When there is a list of arbitrators drawn up by the permanent arbitration court, it is most important to have clear and proper criteria and procedures for entry on the list, consistently followed by the authorities of the court. Equally important is consistent compliance with clear criteria, reflecting the interests of the parties, for substitute appointments by the authorized body of the court. It is essential to share experiences among the arbitrators, along with other forms enabling the arbitrators to raise their qualifications. Formal review of awards by the authorized body of the court, prior to signing, is also essential. Finally, to the greatest extent possible, the permanent arbitration court should publish its awards.

This does not exhaust the list of actions that are or could be undertaken by the permanent arbitration court. All of them have to do with the arbitrators and their activities, because it is primarily the arbitrators who determine the quality of the arbitration. The parties to a legal relationship will decide on arbitration only if their experiences are good. Their experiences, particularly bad experiences, primarily result from the assessment of the arbitrators. Arbitrators are the most valuable good of arbitration but also present the greatest threat to arbitration. This is why any discussion about arbitration will eventually turn to a discussion of the arbitrators.

Numerous publications have appeared recently in the Polish legal literature concerning the role and duties of an arbitrator, particularly issues of impartiality and independence.⁴ Thus there is no need here to make another attempt at defining and systematizing these concepts. I regard the comments below as a small contribution to the discussion of the duties of an arbitrator.

What characteristics should a good arbitrator have? Particular importance is attached to the impartiality and independence of arbitrators as fundamental issues in arbitration. The impartiality and independence of arbitrators is perceived as a guarantee of an objective and lawful resolution of the case, free from any influence of other factors.⁵ And these characteristics of an arbitrator are also typically required by national arbitration laws and the rules of permanent arbitration institutions.⁶ The Polish Parliament has expressed an absolute requirement of the impartiality and independence of an arbitrator under Civil Procedure Code Art. 1173 §1 and 1174 §§ 1 and 2. Apart from these qualities, other, more far-reaching expectations with respect to the characteristics of an arbitrator are formulated in the literature and practice of arbitration, such as availability, competencies in the specific field of law, experience in arbitration, and skill at chairing the panel of arbitrators and managing the conduct of the arbitration proceeding. It is also said with good reason that what is expected of an arbitrator is ordinary human honesty and wisdom. If an essential element for defining wisdom is to serve the good, then, in line with the Roman maxim jus est ars boni et aequi (“Law is the science of the good and the just”), wisdom should indeed be the most sought-after characteristic of an arbitrator.

The characteristics of an arbitrator should be viewed in the context of the needs of the parties as customers of arbitration. A party to a dispute has the right to an honest arbitrator who will fairly and diligently perform the duties arising out of the function he performs, devoting the appropriate time to his duties; with the appropriate education, experience, skill at managing the arbitration proceeding and other necessary characteristics. But when selecting an arbitrator, are the parties truly guided by such criteria? Let us dispel illusions. A client selecting an arbitrator is guided primarily by the desire to win the dispute. Thus from the point of view of the party, what arbitrator creates the greatest opportunity for furthering its interests in the dispute?

I present a few comments below which may be helpful in answering this question.

Impartiality or lack of impartiality of party arbitrators?[7]

The predominant view in the global literature, and also adopted by the IBA Guidelines on Conflicts of Interest in International Arbitration,⁸ is that every arbitrator, including a party arbitrator, is required to be impartial and independent.⁹ This view is also fully accepted in the Polish literature¹⁰ and case law.¹¹ The issue of impartiality, or rather partiality, of party arbitrators nonetheless continues to be the topic of interesting comments in the literature and at conferences on international commercial arbitration. Particularly impressive are the statements made by Jan Paulsson¹² in full awareness of their controversiality. Paulsson calls for an end to the hypocrisy surrounding the motives for appointment of arbitrators by the parties. He argues that the parties to a dispute are not fighting for ideals, but for victory; they exercise the right to appoint an arbitrator, like all other rights, with the goal of a favourable result in the proceeding. Thus Paulsson takes the view that the optimal solution is appointment of all arbitrators by the permanent arbitration court or other appointing body. At the same time, Paulsson firmly rejects the conception that the role of the party arbitrator is to assure that due consideration is given to the position of the party that appointed him. He takes the view that each arbitrator is required to consider equally the arguments of both parties.¹³

Until recently, this topic has not been the subject of comments in the literature or public debate in Poland. The issue was recently taken up by Andrzej Wiśniewski,¹⁴ thanks to whom it has ceased to be a taboo topic. Wiśniewski does not reject the necessity for every arbitrator to maintain impartiality and independence, but he states that in practice the roles of a party arbitrator and a presiding arbitrator are different, and thus in the case of a party arbitrator different, less strict criteria for impartiality should be applied than in the case of a presiding arbitrator. He states that it may not be expected of an arbitrator who has been vested with the personal trust of the party that “he will devote the same attention to the arguments in favour of the other party, particularly since he may correctly believe that the other party arbitrator will focus on those aspects of the case.”¹⁵ He regards the “demand for absolute impartiality” of a party arbitrator as unnecessary and contrary to life experience.¹⁶ Wiśniewski finally reaches the conclusion that there is a stronger tie between a party arbitrator and the party that appointed him, and thus during the course of the work of the panel, up until issuance of an award, he has the right to act in the role of an advocate for the arguments of the appointing party.¹⁷ Also interesting is the author’s statement that in the awareness of many participants in trade, there is a “harmful view that impartiality is useful window dressing, but to allow oneself to be caught demonstrating partiality demonstrates a lack of professionalism.”¹⁸

It is hard to argue with the view that appointment of an arbitrator by a party is one of the strategic actions by the party intended to serve the end of obtaining a result in the arbitration that is favourable to the party. One would also have to agree with Wiśniewski that the phenomenon he describes does occur in practice. Nonetheless, is it truly rational and the best thing from the point of view of a party to select a partial arbitrator, one who perceives his mission to a greater or lesser extent as being an advocate for the interests of the party? I use the term “partial arbitrator” here to avoid any type of euphemism, e.g. concerning a lesser degree of impartiality as contrasted to absolute impartiality, because I believe that the concept of a stronger connection between the arbitrator and the party that appointed him, and the existence of a moral obligation to act during the proceeding as an advocate for the party that appointed him, essentially means acceptance of the partiality of the party arbitrator. The arbitrator would then bear a greater obligation with respect to one of the parties and consequently a lesser obligation with respect to the other party, and that is exactly what the lack of impartiality consists of.

In my view, a party’s selection of an arbitrator to play the role of an advocate for the party may do the party more harm than good. An arbitrator who understands his mission in this way is not in a position to conceal his attitude, even if he tries, and will reveal it during the hearings by the one-sided direction of comments and questions, or sometimes commentary seeking to protect the interests of the party. The consultations among the arbitrators will also more closely resemble a duel than a serious debate. This type of behaviour can and usually does draw a negative response from the other arbitrators. When they notice this, the other arbitrators, including the presiding arbitrator, approach the actions and statements by such an arbitrator with great caution. The trust of the other arbitrators in the views expressed by him is reduced. In consequence, the persuasive force of such an arbitrator is less than that of an impartial arbitrator who openly weighs all of the pros and cons. The partiality of an arbitrator is usually visible to the other arbitrators with the naked eye. In effect, what was intended to be an added strength for the party becomes a weakness.

A partial party arbitrator may also threaten the stability of the award and the effectiveness of the procedure. An arbitrator who perceives his role as an advocate for the party may easily, even unconsciously, reveal his attitude toward the parties, for example during the hearings. Thus it is just a step away from a motion to remove the arbitrator (which always delays the resolution of the case) or a petition to set aside the award (even if it is entirely correct on the merits), alleging violation of the principle of the equality of the parties.

The goal of the arbitrators is to issue a lawful, just, enforceable and stable resolution. Every arbitrator, including a party arbitrator, has the duty to further this goal, which is possible only under conditions of impartiality.

         The difference between the views of Paulsson and Wiśniewski, who both perceive the issue of the partiality of party arbitrators, is that Paulsson believes that this phenomenon is unacceptable, and indicates the solution of nomination of all arbitrators by arbitration institutions, while Wiśniewski seems to accept and justify it, and sees the solution to the dissonance he describes in sanctioning the partiality of party arbitrators. But the solution proposed by Wiśniewski appears to be inconsistent with current law, which requires impartiality of all arbitrators. To use the language of the Supreme Court of Poland in its ruling of 9 January 1935,¹⁹ arguments “seeking to demonstrate that an arbitrator is a decision-maker and at the same time the trusted confidante of the party that appointed him are erroneous.” And in my view, there is no reason in principle or practice to seek to change the law in this respect. Nor, in my view, may we seek a solution to this problem in depriving the parties of the right to appoint an arbitrator. I believe that the solution will come from spreading an awareness that seeking an advantage by selecting a partial arbitrator simply does not pay off.

Serving as an arbitrator in several disputes between the same parties

The appearance of the same person in the role of an arbitrator in several disputes between the same parties is nothing unusual or dubious. The parties often want several disputes between them, often of the same type, to be resolved by the same arbitrators—if for no other reason because it enables the cases to be joined. But appointing the same arbitrators to resolve different but connected disputes may give rise to a conflict of interest in certain situations. In particular, the question arises whether an arbitrator remains impartial if he has previously performed this function in another dispute between the same parties, when both cases are based on the same set of facts and are closely connected, and the first case has already been resolved.

The concept of impartiality is understood to mean both a prohibition on favouring one of the parties, as well as the absence on the part of an arbitrator of any prejudice in the case, on an objective or subjective level.²⁰ Thus an arbitrator is impartial when the relations between him and the party or him and the case do not raise doubts with respect to the reasoning that will guide him in reaching a decision.²¹ Partiality, as the opposite of impartiality, will occur inter alia when the arbitrator also leans toward the assertions of one of the parties before hearing the case.²²

         The arbitrator’s previous involvement in the case is included in the “Waivable Red List” in the IBA Guidelines. In such case, the person may serve as an arbitrator only if the parties consent.²³ For this reason as well, a situation in which an arbitrator has already expressed his view in a specific matter that is now the subject of the determination to be made by the arbitration court is indicated as a typical example of lack of impartiality.²⁴ It is a commonly accepted standard that an arbitrator may not reveal his view of the determination of the dispute to the parties, or even a preliminary assessment of the claims, prior to issuance of the award.²⁵ Thus it is all the more justified to have doubts about impartiality when an arbitrator has not only revealed his opinion before, but revealed it by ruling on issues for the purposes of another case between the same parties.

         Moreover, as correctly pointed out in the literature, guidelines for determining the circumstances that may raise reasonable doubt with respect to an arbitrator’s impartiality may also be sought in the regulations and case law concerning recusal of a judge.^[26] Of course these regulations may serve only as guidelines, because the situation of a judge differs significantly from the position of an arbitrator, particularly with respect to the legal status of judges and the instances of appellate review operating within the state courts. Nonetheless, it has been stated that because of the reduced formalism of arbitration procedure, the parties’ participation in selection of arbitrators, and the fact that the parties cover the arbitrators’ fees, the requirement for an arbitrator to be impartial and independent should be treated more rigorously than with respect to a state court judge.²⁷ Notwithstanding such reservations, it should be pointed out that under Civil Procedure Code Art. 48 §1(5), a judge is recused by operation of law from ruling inter alia in cases in which the judge took part at a lower instance in issuance of the ruling appealed against, or in cases concerning the validity of a legal act considered (previously) by the judge. Thus it is also accepted in the case law of the Supreme Court of Poland that recusal of a judge by operation of law occurs in all instances in which the judge has already ruled on the validity of a legal act (contract, unilateral declaration of will, etc.) or participated in drawing up the legal act (e.g. with respect to a judicial settlement), even if the validity of the act was only a condition for the ruling and not the main subject of the case.²⁸ Similarly, under Civil Procedure Code Art. 386 §5, if a judgment is vacated and the case is remanded for rehearing, the case will be heard again below by a different panel of judges.

These provisions capture the notion that it is not proper for a person who has already resolved an issue to rule on it again. This is because in such situations, a judge or arbitrator cannot objectively be expected to be impartial. This is based on the assumption that someone who has already expressed a certain view on a disputed issue can no longer assess the same issue impartially. This is not a question of a negative assessment of the attributes of the given person or the position adopted by the person, but a reflection of a fact of a psychological nature. Impartiality is, after all, an intellectual characteristic, “a psychological state by its nature subjective.”²⁹

It may also reasonably be assumed that the resolution of the case by an arbitrator in this situation could be determined by factors other than the merits, such as the desire to uphold the position already expressed in the earlier award, a desire to seek additional justification for the previous ruling, or considerations of personal ambition.

It should be stressed that although merely serving as an arbitrator in two parallel proceedings concerning the same factual or legal issues does not in itself create a conflict, if a resolution is issued in one of the disputes in which the arbitrator resolves an issue relevant to the resolution of the other case, or even merely discloses his view on the issue, such an arbitrator loses the attribute of impartiality. There is a far-reaching analogy here with the procedure before the state court. While there is nothing preventing the same judge from hearing two or more cases between the same parties concerning the validity of the same legal act (as the subject of the dispute or grounds for the decision), upon issuance by the judge of a ruling in one of the cases the judge is recused by operation of law from ruling in the other cases.

In short, the situation in which an arbitrator has previously expressed, in the justification for the award issued in another, closely connected case between the same parties, a view concerning issues material to resolution of the present case, should lead the arbitrator to the conclusion that there are at least reasonable doubts with respect to his impartiality. This should lead him to resign as an arbitrator in the second case.

Connections between arbitrators

What greatly differentiates arbitration from state court litigation in the context of independence and impartiality is the significance of connections between arbitrators. The independence of an arbitrator, although similar in construction and patterned on the independence of a judge, differs from the latter inter alia in its subjective scope. A state court judge must be independent of the parties to the proceeding and their counsel. A broader independence is demanded of an arbitrator, also including independence from the other arbitrators.³⁰

         Unlike the function of a judge, the function of an arbitrator is not permanent. Apart from concentration occurring in international arbitration, particularly investment arbitration, where a large number of disputes are heard by the same small group of “professional arbitrators,” service as an arbitrator, whether in international or domestic arbitration, generally is a sideline for the arbitrator. To put it colloquially: Once a judge always a judge, but one is an arbitrator only from time to time. Arbitrators are typically lawyers, particularly practitioners (advocates and legal advisers) or law professors, as well as individuals combining various types of professional activity. Combining the function of arbitrator with practice of the legal profession, particularly as an advocate or legal adviser, has a distinct virtue: It enables an arbitrator resolving a dispute to look at it also from the perspective of counsel, and enables counsel to look at it from the perspective of an arbitrator. This is beneficial both to the lawyer’s clients and to the parties whose dispute is being resolved. Particularly valuable is the experience gained in disputes of this type in which apart from knowledge of the specific field of law, knowledge of practice, e.g. in construction disputes, is especially important.

On the other hand, the extensive practice of a lawyer also acting as an arbitrator presents a greater risk of a conflict of interest. With respect to connections between arbitrators giving rise to a conflict, the IBA Guidelines include on the “Orange List,” as examples, situations in which one arbitrator and another arbitrator are lawyers in the same firm or members of the same barristers’ chambers, or the arbitrator was within the past three years a partner of, or otherwise affiliated with, another arbitrator in the same arbitration. A conflict of interest may also arise inter alia in a situation in which the members of the panel are on the staff of the same university or other scientific institution. The scale of the conflict may differ depending on the specific situation. There may be doubts for example in a situation in which two arbitrators are both members of the same department at one law school. A conflict of interest may be even more apparent when one arbitrator is or was the supervisor or subordinate of a candidate for arbitrator. It appears that in such situation the candidate may accept the appointment as an arbitrator only if he discloses these circumstances. When a candidate for arbitrator believes that he is impartial and independent despite the existence of a conflict, and he wants to accept the appointment, the candidate should always disclose the circumstances so that the right of a party to seek removal of the arbitrator is not violated. If a party objects, the arbitrator should resign.

The issue of conflict of interest in connection with the specific nature of ties between academic staff at the same unit was recently the subject of an interesting debate during a conference on impartiality and independence of arbitrators organized by the Court of Arbitration at the Polish Chamber of Commerce.³¹

Fairness of the proceeding and the impartiality of the arbitrator

When permitting disputes to be resolved in arbitration and ascribing to arbitration awards the force of state court judgments, the Parliament did not accept that arbitration is a lesser alternative to the courts. Arbitration awards are expected to be of high quality, with procedural fairness manifest through compliance with procedural principles that for the most part are the same as those applicable before the state court.

A frequent basis for applications to remove arbitrators is allegations of unequal treatment of the parties via measures serving the interests of only one of the parties. Although most such applications I have encountered were in my view unjustified, they nonetheless indicate the continual need for particular care by the arbitrators to assure that the parties believe that all decisions taken by the arbitrators are justified by the merits. This is furthered first and foremost by including the parties to the broadest extent possible in the process of taking procedural decisions, explaining the decisions to the parties, and enabling them to comment on any relevant topic, particularly in matters where a decision may be made that is disadvantageous to a party, for example refusing to admit evidence. This reduces the risk that the party will erroneously perceive the actions of the arbitrator as aimed against the party.

As a rule, even decisions by arbitrators that are ultimately erroneous are not per se grounds for an allegation of lack of impartiality. Nonetheless, it cannot be excluded that there are situations in which defective or erroneous actions by the arbitrators are indeed a manifestation or result of a lack of impartiality.

Such a situation may be illustrated by the following example. The current arbitration law in Poland—Part Five of the Civil Procedure Code—does not contain a provision (as was the case prior to 17 October 2005) permitting the arbitration court to admit evidence upon its own motion.³² Admitting evidence sua sponte may in and of itself violate the principle of the equal rights of the parties. As a rule, there is no such thing as neutral evidence. Usually, admission of specific evidence ultimately furthers the interests of only one of the parties, or to a greater degree than the other party. A manifestation of the lack of impartiality could be a situation in which the arbitrators themselves formulate what the evidence is intended to prove, in a manner that is obvious to only one of the parties, and admit evidence not offered by either of the parties, which they ultimately rely on for the resolution of the case. An allegation of lack of impartiality in the actions taken by the arbitrators should also be regarded as justified in a situation in which the arbitrators refuse to admit evidence offered by a party to prove facts of fundamental relevance for the resolution, while at the same time holding that the party failed to prove that fact.

The aggregation and scale of violations of the rules of procedure by the arbitrators, all furthering the interests of one of the parties, may justify an application to remove the arbitrators as well as an allegation of violation of the fundamental principles of a fair trial, including the principle of the equal rights of the parties, the principle of the impartiality of the arbitrators, and the principle of thorough consideration of the case,³³ also to such a degree that it would justify application of the public policy clause. The principle of equal rights is both a fundamental principle of procedure and a fundamental principle of the legal order of the Republic of Poland.³⁴

 

Published in: Arbitration and Mediation. A Commemorative Volume
Dedicated to Dr Andrzej Tynel, Warsaw 2012

 

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¹I use the term “inappropriate arbitrator” to refer to an arbitrator lacking sufficient qualifications to perform this function in the specific dispute. This could be, for example, an arbitrator who does not have the qualifications provided for by the parties, a presiding arbitrator lacking dispute management skills, or an arbitrator who improperly perceives his role to be that of an advocate for the party who appointed him.

²T.O. Jones & W. Earl Sasser Jr., “Why Satisfied Customers Defect,” Harvard Business Review, November 1995.

³See Subclass 84.23.Z of the Polish Classification of Activity (Government Regulation on the Polish Classification of Activity of 24 December 2007, Journal of Laws Dz.U. No. 251 item 1885).

⁴E.g. K. Zawiślak, Receptum arbitrii, Warsaw 2012, pp. 56–65; M. Asłanowicz, “Arbitrators and Arbitral Tribunals,” in Arbitration in Poland, Warsaw 2011, pp. 67–70, 71–72; A. Krysiak & M. Wierzbowski, “Brak bezstronności i niezależności jako podstawowe przesłanki wyłączenia arbitra (art. 1174 K.P.C.)” (“Lack of Impartiality and Independence as Fundamental Conditions for Removal of an Arbitrator”), in J. Gudowski & K. Weitz (ed.), Aurea praxis, aurea theoria. Księga pamiątkowa ku czci Profesora Tadeusza Erecińskiego (Essays in Honour of Prof. Tadeusz Ereciński), Warsaw 2011, vol. 2, pp. 1747–1762; A.W. Wiśniewski, Międzynarodowy arbitraż handlowy w Polsce. Status prawny arbitrażu i arbitrów (International Commercial Arbitration in Poland: Legal Status of Arbitration and Arbitrators), Warsaw 2011; A.W. Wiśniewski, “Niezależność i bezstronność arbitrów w świetle prawa polskiego i praktyki międzynarodowej” (“Independence and Impartiality of Arbitrators under Polish Law and International Practice”), in Gudowski & Weitz, Aurea praxis, supra, at pp. 1961–1986; A. Krysiak & M. Wierzbowski, “Bezstronność i niezależność jako kluczowe cechy każdego arbitra” (“Impartiality and Independence as Key Characteristics of Every Arbitrator”), in J. Okolski et al. (ed.), Księga pamiątkowa 60-lecia Sądu Arbitrażowego przy Krajowej Izbie Gospodarczej w Warszawie (Essays in Honour of the 60^th Anniversary of the Court of Arbitration at the Polish Chamber of Commerce), Warsaw 2010, pp. 359–375; M. Romanowski, “Znaczenie niezależności i bezstronności arbitra w postępowaniu arbitrażowym w świetle konstytucyjnego prawa do sądu” (“The Significance of Independence and Impartiality of an Arbitrator in an Arbitration Proceeding in Light of the Constitutional Right of Access to the Court”), in Okolski, Essays in Honour of the 60^th Anniversary, supra, at pp. 376–384; A. Szumański, “Bezstronność i niezależność arbitra” (“Impartiality and Independence of the Arbitrator”), in A. Szumański (ed.), System Prawa Handlowego. Tom 8. Arbitraż handlowy (System of Commercial Law. Vol. 8: Commercial Arbitration), Warsaw 2010, pp. 369–382; K. Bilewska & D. Paczoska, “Bezstronność oraz niezależność arbitra” (“Impartiality and Independence of the Arbitrator”), ADR. Arbitraż i Mediacja, Perspektywy rozwoju sądownictwa arbitrażowego (ADR: Arbitration & Mediation: Prospects for Growth of Arbitration), Katowice, 20–21 November 2008, post-conference materials, pt. 1, 2009, No. 1 (5), pp. 15–25; B. Gessel-Kalinowska vel Kalisz, “Kilka uwag w przedmiocie konfliktu interesów w przypadku arbitrów pochodzących z wieloosobowych kancelarii prawnych” (“A Few Remarks on Conflict of Interest in the Case of Arbitrators from Multi-Person Law Firms”), in P. Nowaczyk et al. (ed.), Międzynarodowy i krajowy arbitraż handlowy u progu XXI wieku. Księga pamiątkowa dedykowana doktorowi habilitowanemu Tadeuszowi Szurskiemu (International and Domestic Commercial Arbitration at the Threshold of the 21^st Century: Essays in Honour of Dr Tadeusz Szurski), Warsaw 2008, pp. 15–25; M. Tomaszewski, “Przyczyny wyłączenia arbitra w świetle prawa polskiego” (“Grounds for Exclusion of an Arbitrator under Polish Law”), in Nowaczyk, Międzynarodowy i krajowy arbitraż handlowy, supra, at pp. 245–260; T. Ereciński & K. Weitz, Sąd arbitrażowy (Arbitration Court), Warsaw 2008, pp. 170–173; Ł. Błaszczak & M. Ludwik, Sądownictwo polubowne (arbitrażowe) (Arbitration), Warsaw 2007, pp. 235–236.

⁵E.g. Supreme Court of Poland resolution of 8 September 2011, Case No. III CZP 41/11, Lex No. 898218, available at www.arbitration.pl id 20357.

⁶See more broadly on this topic Wiśniewski, “Niezależność,” supra n. 4, at pp. 1961–1964, and Tomaszewski, “Przyczyny wyłączenia,” supra n. 4, at pp. 246–249.

⁷I use the term “party arbitrator” to refer to an arbitrator selected by a party or for a party by the substitute appointment body.

⁸http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#conflictsofinterest.

⁹ Wiśniewski, “Niezależność,” supra n. 4, at p. 1982. 

¹⁰E.g. Szumański, “Bezstronność,” supra n. 4, at pp. 370–371; Ereciński & Weitz, Sąd arbitrażowy, supra n. 4, at pp. 172–173; Tomaszewski, “Przyczyny wyłączenia,” supra n. 4, at p. 247; Błaszczak & Ludwik, Sądownictwo polubowne, supra n. 4, at p. 235.

¹¹Supreme Court of Poland ruling of 9 January 1935, Case No. C II 2194/34, published at Zbiór Orzeczeń Sądu Najwyższego. Orzeczenia Izby Cywilnej 1935 vol. 7 item 289, pp. 615–617, and available at www.arbitration.pl id 20047.

¹²J. Paulsson, “Moral Hazard in International Dispute Resolution,” Miami, 29 April 2010, available at the website of the International Council for Commercial Arbitration (http://www.arbitration-icca.org/media/0/12773749999020/paulsson_moral_hazard.pdf); J. Paulsson, “Are Unilateral Appointments Defensible?” Kluwer Arbitration Blog, 2 April 2009 (http://kluwerarbitrationblog.com/blog/2009/04/02/are-unilateral-appointments-defensible/); see also A. Mourre, “Are Unilateral Appointments Defensible? On Jan Paulsson’s Moral Hazard in International Arbitration,” Kluwer Arbitration Blog, 5 October 2010 (http://kluwerarbitrationblog.com/blog/2010/10/05/are-unilateral-appointments-defensible-on-jan-paulsson%E2%80%99s-moral-hazard-in-international-arbitration/); A. Ross, “London: Party-Appointed Arbitrators—Love Them or Loathe Them?” GAR vol. 6 no. 1, (http://www.globalarbitrationreview.com/journal/article/29035/london-party-appointed-arbitrators-love-loathe-them).

¹³Ross, London, supra n. 12.

¹⁴Wiśniewski, Międzynarodowy arbitraż, supra n. 4, at pp. 573–576; Wiśniewski, “Niezależność,” supra n. 4, at pp. 1982–1986.

¹⁵Wiśniewski, “Niezależność,” supra n. 4, at p. 1983.

¹⁶Id.

¹⁷Id. at p. 1985.

¹⁸Id. at pp. 1984–1985.

¹⁹Case No. C II 2194/34, supra n. 11.

²⁰Szumański, “Bezstronność,” supra n. 4, at p. 372, and literature cited therein; see also M. Tomaszewski, in “Konferencja w Sądzie Arbitrażowym przy Krajowej Izbie Gospodarczej w sprawie bezstronności, niezależności i wyłączenia arbitrów” (“Conference at the Court of Arbitration at the Polish Chamber of Commerce on Impartiality, Independence and Removal of Arbitrators”), Biuletyn Arbitrażowy 2012 No. 17, pp. 17–18.

²¹Błaszczak & Ludwik, Sądownictwo polubowne, supra n. 4, at p. 235.

²²Krysiak & Wierzbowski, “Bezstronność,” supra n. 4, at p. 362.

²³However, the “Orange List” indicates circumstances in which an “arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties” (point 3.1.5).  Thus justified doubts as to the arbitrator’s ability to maintain impartiality are raised all the more by a situation in which the arbitrator has served previously as an arbitrator in another case not only related to the present case but also between the same parties.

²⁴Szumański, “Bezstronność,” supra n. 4, at p. 373.

²⁵Tomaszewski, “Konferencja,” supra n. 20, at p. 20.

²⁶Bilewska & Paczoska, “Bezstronność,” supra n. 4, at p. 17; Tomaszewski, “Przyczyny wyłączenia,” supra n. 4, at p. 249; A. Zieliński, Commentary on Art. 1174 in A. Zieliński & K. Flaga-Gieruszyńska, Kodeks postępowania cywilnego. Komentarz (Civil Procedure Code: Commentary), 6^th ed., Warsaw 2012, version from Legalis database; R. Morek, Mediacja i arbitraż (art. 183¹-183¹⁵, 1154-1217 KPC). Komentarz (Mediation and Arbitration (Civil Procedure Code Art. 183¹-183¹⁵& 1154-1217)), Warsaw 2006, p. 185.

²⁷Krysiak & Wierzbowski, “Bezstronność,” supra n. 4, at p. 360; Szumański, “Bezstronność,” supra n. 4, at p. 370.

²⁸See Supreme Court of Poland judgment of 8 February 2007, Case No. II PK 186/06, Lex No. 948787; Supreme Court of Poland judgment of 1 December 1999, Case No. I CKN 257/98, published at OSNC 2000 No. 6 item 110; Supreme Court of Poland resolution of 24 August 1971, Case No. III CZP 45/71, published at OSNC 1972 No. 3 item 45.

²⁹P. Fouchard, E. Gaillard & B. Goldman, Traité de l’arbitrage commercial international (Treatise on International Commercial Arbitration), Paris 1996, p. 582; see also Supreme Court of Poland resolution of 8 September 2011, Case No. III CZP 41/11, supra n. 5.

³⁰E.g. Tomaszewski, “Konferencja,” supra n. 20, at p. 18; P. Nowaczyk, “Arbiter XXI w. – wyzwania i oczekiwania (w poszukiwaniu arbitra idealnego)” (“The Arbitrator of the 21^st Century: Challenges and Expectations (In Search of the Ideal Arbitrator)),” in Nowaczyk, Międzynarodowy i krajowy arbitraż, supra n. 4, at p. 104.

³¹Transcript of proceedings at the conference at the Court of Arbitration at the Polish Chamber of Commerce on 7 April 2011 at “Konferencja,” supra n. 20, at pp. 7–54. 

³²Ereciński & Weitz, Sąd arbitrażowy, supra n. 4, at p. 314.

³³Supreme Court of Poland judgment of 6 March 2008, Case No. I CSK 445/07, Lex No. 445285, available at www.arbitration.pl id 20248.

³⁴Ereciński & Weitz, Sąd arbitrażowy, supra n. 4, at p. 281.