The Liability of the International Arbitration Institutions on the Arbitrator’s Errors: An Examination of the Influence of Legal Traditions of Civil and Common Law
Dr. Nehad Khanfar
Associate Professor – Islamic College – Middlesex University – London – UK.
Abstract:
Arbitrators enjoy a strict immunity in the countries who adopt the common law systems such as England, the United States, and others. The arbitrators would not be legally liable for the errors occur as a result of the arbitral process. Therefore, some other international arbitration institution such as ICC has adopted this. However, the situation would be different when it comes to the countries who adopt the civil legal systems, where the arbitrators are being held legally liable if errors occur because of the arbitral process.
International arbitration is widely influenced by common and civil legal systems. As a result, both systems must be discussed when examining the immunity of the arbitrators. This paper seeks to critically examine the influence of the civil and common laws on the conceptual and contextual aspects of the arbitrator’s legal liability. It also seeks to investigate the philosophical bases of both systems in adopting two different approaches towards the liability and immunity of the arbitrators. Furthermore, an examination of the institutional liability on the arbitrator’s error and how is defined and developed by the traditions of the common and civil laws. This will be followed by studying different theories of arbitration that directly impact on the practical issues related to the arbitrator’s immunity. Therefore, the jurisdictional theory, the contractual theory, the hybrid theory (or the mixed theory) and the autonomous theory will be subjected to the discussion in this paper.
Keywords: Arbitrator, institution, liability, immunity, civil and common law.