CEU Electronic Theses and Dissertations, 2020
| Author | Makarenko, Yevheniia |
|---|---|
| Title | Resolving the problem of lack of independence and impartiality of party-appointed arbitrators |
| Summary | The procedure for appointing the arbitrators is a core part of arbitration as one of the types of alternative dispute resolution. Nomination of the arbitrators by the parties may give rise to the problem of lack of independence and impartiality as a result of which the whole arbitration procedure may be adversely affected. The mentioned concern may influence the essence of arbitration itself, since arbitration is meant to serve as the neutral legal tool for the resolution of disputes. The research gap in the mentioned problem is that there is no uniform remedy that could prevent the occurrence of lack of independence and impartiality of party-appointed arbitrators. Jan Paulsson, a renowned arbitration practitioner, is convinced that unilateral appointment causes “moral hazard” to arbitration and proposed the idea of nominating the arbitrators by a neutral body. Other arbitration practitioners, such as Charles N. Brower and Charles B. Rosenberg, are of opposing opinion and support the importance of party-appointments. The objective of this Thesis is to seek for and define an effective remedy on how to prevent the occurrence lack of independence and impartiality of party-appointed arbitrators. This Thesis analyses different remedies such as nomination of arbitrators by a neutral body or their selection from pre-existing list of candidates, improvement of accountability of arbitrators and refinement of the appeal mechanism. The analysis of the above will be aimed at finding the most optimal and potent remedy with the provision of additional recommendations on how such remedy may be implemented in practice. The subsidiary issues and questions stemming from the central research question will focus on discussing the concepts of “independence” and “impartiality” and their standards under the national laws (i.e. UNCITRAL Model Law, U.S. Federal Arbitration Act, English Arbitration Act 1996); discussing the main causes of partiality and bias of arbitrators appointed by the parties. The subsidiary questions will also focus on the analysis of the proposed remedies aimed at preventing the lack of independence and impartiality of party-appointment of arbitrators. The desk research and analysis will be used as methods in preparing Capstone Thesis. |
| Supervisor | Markus A. Petsche |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2020/makarenko_yevheniia.pdf |
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