The Problematic of the Indictment of the Arbitrator and the Sustainability of Moral Arbitration between Malicious Accounting and the Legitimacy of Accountability: A Comparative Study
Dr. Mahmoud Al Moghrabi
Assistant Professor of Private Law – Kuwait International Law School
The arbitrator has, in most cases, been unjustly “victimized” and made “vulnerable” to the mood of the malicious losing party and his expected harassment that aims to place the burden of responsibility solely on him because of the loss or judgment of his invalidity in the arbitration dispute.
What aggravated the situation was that the comparative law did not provide any satisfactory uniform answers, but on the contrary, the aspects of legal systems varied in terms of legislation, jurisprudence, and judiciary. This has negatively affected the value of arbitration as a safe haven for the world of commerce and business, so that it has become the subject of question and even review. As a result of the absence of an independent and integrated organization for the litigation of the arbitrator nationally and internationally – at least in the past two decades – questions have proliferated about the legal framework to be adopted, in terms of the forms, the scope, the controls, the causes, or the effects.
In this research, we have sought to highlight the accuracy of the argument in the legal system of arbitration liability within three main sections. In the first section, we will examine the pillars of the legal accountability of arbitration (arbitral accountability), whereas in the second, we will examine the dilemma of the civil litigation of the arbitrator. The last section addresses the problem of the criminal litigation of the arbitrator.
To achieve the desired goal, we adopted a comprehensive, analytical, comparative, and critical methodology. The conclusion includes a set of proposals that we deem useful to adopt to overcome the problems and dilemmas inherent in arbitral accountability in its various forms, especially in the Lebanese and Kuwaiti legal system. The direct responsibility of the arbitrator is a major prerequisite for the reputation of arbitration and its universality, as well as the need to agree on an integrated system for arbitration accountability with clear frameworks and concepts that achieve the desired balance between the requirements of arbitral security and the requirements of arbitration litigation.
Keywords: ethics of arbitration, arbitration assignment, excluding liability clauses, personal error, arbitrator’s contract.