Contemporary Trends of Arbitrator’s Accountability and the Say of Kuwaiti Law Against these Trends
Prof. Lafi Daradekah
Professor of Commercial Law
Dean – Director of Legal Affairs Department
Faculty of Law – University of Yarmouk – Jordan
Abstract:
This article deals with the contemporary trends of arbitral tribunal’s accountability in order to adopt one of them in accordance with the nature of arbitration. The idea of this article is about fixing the legal position of arbitrator. Its position situated between considering arbitrator as a profession or as a judge. It is not a profession as it is requested to act judicially, and it is not a judge as it is chosen by the disputants. The importance of this research stems from the position of national laws as these positions lead to the division in the position of national laws of arbitration, as some of which adopt the judicial liability, while others adopt the professional liability.
This research also has objectives to be achieved, the most important of which is the statement of the position of the Kuwaiti law, which takes the middle position between these laws by adopting the judicial liability as principle and the professional liability as an exception regarding one case which is the resignation of arbitrator without justifications.
The research has reached several conclusions, the most important of which is that some advocate the civil responsibility of the arbitral tribunal in case it neglects to perform its duties to consider and adjudicate the dispute, and some call for considering the arbitral tribunal a judge and subject to judicial responsibility on the one hand, and granting them judicial immunity on the other hand. The research then recommends establishing an independent arbitration law in Kuwait, which addresses the responsibility of the arbitral tribunal, and moves away from the professional responsibility of the arbitral tribunal, due to the negative effects of professional responsibility that contradict the aim of resorting to arbitration and its nature.
Keywords: Arbitrator liability, arbitral tribunal, professional liability, judicial liability, Kuwaiti law.