IHU LECTURE – PROFESSOR GARY B. BORN
On 9th May 2022 the webinar on “Independence and Impartiality in International Arbitration” took place. This was organised by the International Hellenic University (IHU) in collaboration with the Hellenic Institute of International and Foreign Law and moderated by Prof. (em.) Dr. iur. (Heidelberg) Athanassios Kaissis, President of the IHU.
Prof. Gary Born, the world’s leading authority on international commercial arbitration and international litigation, was the keynote speaker on the topic “Arbitrators and Disclosure”. Firstly, he provided an overview of the issue of disclosure obligation as an essential aspect of the process of constituting an arbitral tribunal, from a global perspective. He then analyzed the disclosure duty under UNCITRAL Model Law, Institutional Arbitration Rules and the traffic light lists of IBA Guidelines on Conflicts of Interest in International Arbitration. He also explained the hazards of over-disclosure as well as the advantages and disadvantages of disclosure. Prof Born also pointed out the absence of an integrated mechanism to identify the lack of impartiality and independence on an international level. Finally, he referred to the specialized market of maritime arbitration and the different applicable disclosure duties of arbitrators.
Prof. Kaissis highlighted that the disclosure standard varies slightly in the IBA Guidelines of Conflicts of Interest in International Arbitration and AAA Code of Ethics. He also commented that the over-disclosure has to be seen in relation to the need for transparency which prevails nowadays in many fields of law. He also stressed the fact that although Greek law applies the same test of impartiality and independence to the challenge of judges and arbitrators there are essential differences between them, some of which were touched upon by him.
Prof. Dr. Haris Pampoukis, Director of the Hellenic Institute of International and Foreign Law, referred to the common core of international public policy with regard to the concepts of impartiality and independence of international arbitrators. Prof. Pampoukis also referred to the consideration of the notion of “arbitrator impartiality” and “disclosure duty” as part of a transnational public policy that was first supported by the well-known arbitration practitioner Professor Pierre Lalive.
Mr. Ioannis Vassardanis, Managing Partner of I. Vassardanis and Partners Law Firm provided an overview of the Greek law practice on the issue of independence and impartiality in international commercial arbitration. He specifically stated that Greek court decisions are quite scarce for two main reasons:
a) Greece is not often chosen as the seat of arbitral tribunals and b) the Greek arbitration community’s approach is not very strict on these issues due to the size of the Greek arbitration market. The latter is not necessarily negative to the extent that Greek law seems to follow basic international standards in relation to independence and impartiality. Mr. Vassardanis also highlighted that the issues that have arisen in Greek case law are rather simple as compared to the ones that arise on an international level. To illustrate this he referred to an indicative example from case law where the Greek State had appointed as an arbitrator a member of the State Legal Council, whereas more sophisticated issues such as the notion of parties’ “curiosity duty” are being examined by international arbitration case law.
Dr. Stavroula Angoura, author of “The Impartiality of Independence of Arbitrators in International Commercial Arbitration” analysed the mechanism of waiver in relation to the arbitrator’s disclosure duty. She highlighted the distinction between an implied and an express or advance waiver of the right to contest arbitrator impartiality and explained particularly the preconditions and the consequences of the implied waiver.