Browsing by Author "Muchemwa, Faith"

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    Challenge and Replacement of Arbitrators balancing fairness with Arbitral Integrity
    (The British University in Dubai (BUiD), 2016-08) Muchemwa, Faith
    Arbitrators are appointed once there is a dispute to be settled, when the parties to the dispute had agreed in writing to have their disputes settled out of court by an arbitral tribunal. They are handpicked by the parties to the dispute, or if the parties agree otherwise a competent court will do the appointing of arbitrators. Since arbitrators are human beings just like the parties they will solve their dispute, there might be some relationships which are not allowed by the rules of arbitration. Those relationships might be contradicting with the core principles of arbitration such as independence and impartiality. Independence and impartiality are some of the requirements of an arbitrator besides educational qualifications. Before being appointed an arbitrator is informed of the intention of the party that want to appoint him or her for arbitration so that enough time is given to the arbitrator to investigate all potential conflicts that can lead to an arbitral challenge. Realising that there are no potential conflicts of interests the arbitrator is then free to accept appointment, but if there are real potential conflicts they have to be disclosed at the beginning of the process or better still reject the appointment if the conflicts are of great importance to the arbitration. Relationships with financial benefits, family relations, just to mention a few of some of the non-waivable relationships which according to arbitration rules parties are not allowed to waive their rights. Automatically given such relationships, the arbitrator will be removed from the arbitral tribunal; the removal of a once appointed arbitrator simply means that a vacant in the tribunal has been created. There are different national arbitration laws in different countries so as such some of the vacancy has to be filled before the process can continue while others say it depends with the number of the remaining arbitrators. Those who consider the number of remaining arbitrator also consider the stage at which the process was when the challenge was raised, if it was at an advanced stage they will simply allow the remaining arbitrators to issue an award. It’s only difficult when the challenged arbitrator was a sole arbitrator to the case which means they will be forced to replace such an arbitrator. Challenged arbitrators are replaced following the same procedure which was used to appoint the removed one. Though its allowed to challenge and replace arbitrators, procedures besides time limit are supposed to be followed, at the same time balancing fairness and arbitral integrity.