Liability and Independence of the Arbitrator
pages 149 - 169
ABSTRACT:

This article describes the potential sources of the arbitrator’s liability as seen from different perspectives – civil and criminal liability, liability derived from jurisdictional theory, contractual theory, hybrid theory and autonomous theory. The undisputed duties of an arbitrator based on both indemnity endorsing and liability oriented jurisdictions are described, as well as the possible types of arbitrator’s liability viewed from the technical point of view and from the different views of common law and continental law countries, where the common law
countries incline toward absolute quasi-judicial indemnity while the continental law countries apply different levels of liability. The presented court decisions from different jurisdictions specify the different views of potential liability or indemnity of an arbitrator compared to the general approach of the jurisdiction. The conclusion however confirms that the issue is highly controversial especially in international arbitration where there is no general lead or approach applied worldwide which raises the question of whether an international understanding on a basic principle or at least a wider discussion should be initiated, but preferably ending in some form of an international convention agreeing on some basic generally accepted rules.

keywords
International Arbitration
arbitrator
arbitral tribunal
general liability
indemnity
arbitrators liability
personal immunity
arbitrator´s misconduct
arbitrator´s disqualification
arbitral immunity
statutory immunity
absolute judicial immunity
quasi-judicial immunity
jurisdictional theory
contractual theory
contractual liability
arbitrator´s duties
tort liability
about the authors

JUDr. Martin Maisner, PhD. is a partner at ROWAN LEGAL. He is a renowned expert in the area of ICT Law, Outsourcing, ICT dispute resolution and CyberSecurity. He has written many publications and articles, has given lectures and presentations at international conferences; regularly lectures at several universities including Prague University of Economics, Masaryk University in Brno and Pan-European University in Bratislava. He is also an active arbitrator in both domestic and international arbitration disputes including specialised ICT and intellectual property cases and has represented clients in arbitrations in Prague, Geneva, Zurich, Hague and London.

e-mail: maisner@rowanlegal.com