ABSTRACT
In our study, while examining the UNCITRAL Model Law on International Commercial Arbitration, the Turkish Code of Civil Procedure, and the guidelines of various institutional arbitration organizations, the procedures for challenging arbitrators are analyzed, and the subject is explored in-depth through examples of judicial decisions.
I. INTRODUCTION
This article aims to examine the grounds for challenging arbitrators in arbitration proceedings and their application within the framework of ad hoc and institutional arbitration types. Arbitration constitutes a dispute resolution mechanism whereby parties opt to resolve disputes that have arisen or may arise between them, waiving the jurisdiction of state courts, and instead submitting to the binding and final decision of a specially empowered arbitrator or arbitration panel1. In this regard, arbitration functions as an alternative dispute resolution mechanism, providing for the resolution of disputes by impartial and independent arbitrators, thereby operating as an extrajudicial dispute resolution apparatus.
A. The Role and Significance of Arbitrators in Arbitration
Arbitrators are individuals tasked with resolving disputes in arbitral proceedings. The impartiality and independence of arbitrators are of paramount importance in ensuring that arbitral proceedings are conducted fairly and efficiently. Therefore, the issue of challenging arbitrators is of critical significance in terms of the reliability of arbitral proceedings and the protection of parties’ rights.
The independence of arbitrators refers to their economic and administrative independence, whereas the concept of impartiality of arbitrators refers to their objective and unbiased conduct2.
The principle of independence of arbitrators is directly related to the right to a fair trial. The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights3, which states that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” This provision emphasizes that a fair trial can only be achieved before an independent and impartial tribunal. Similarly, Article 36 of the Constitution of the Republic of Turkey, titled “Freedom to claim rights” states that “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures.” In this regard, the concept of “court” referred to in the Constitution and the European Court of Human Rights (“ECHR”) is not limited to state courts, but also applies to arbitrators and arbitration institutions chosen by the parties.
ECHR uses two criteria to assess the impartiality of an arbitrator. The first criterion involves examining whether the arbitrator’s personal beliefs and behavior demonstrate any personal bias or prejudice in a particular case. The second criterion involves determining whether the court’s composition provides sufficient guarantees to eliminate any legitimate doubts about the arbitrator’s impartiality. The ECHR emphasizes that, based on these two criteria, it should be assumed that the arbitrator is personally impartial. It is necessary to investigate whether the arbitrator or arbitration panel, as the decision-making authority, has demonstrated any hostility or bias towards one of the parties. The assumption that the arbitrator is free from personal biases and prejudices is a long-standing principle in ECHR case law4.
Even if the arbitration proceedings are conducted in accordance with all other principles, if the principle of impartiality and independence of the arbitrators is not ensured, it will directly affect the arbitral award5 and render a fair trial impossible. Therefore, the impartiality and independence of arbitrators are essential components of a fair trial, and their absence can undermine the integrity of the entire arbitration process.
II. CHALLENGING THE ARBITRATOR IN AD-HOC ARBITRATION PROCEEDINGS
One of the forms of arbitration proceedings is ad hoc arbitration. Ad hoc arbitration refers to a type of arbitration that takes place under the control of arbitrators, within the framework of rules or laws written or referenced by the parties themselves, and the powers granted by the parties6. The parties, without being bound by any arbitration institution, establish the arbitrator or arbitration panel themselves. Parties who desire to have a significant degree of control over the arbitration process determine the arbitration procedure, the place of arbitration, the arbitrators, and the applicable substantive law themselves, or grant the arbitrators authority to decide on these matters.
Ad hoc arbitration often emerges as a compromise method when parties are unable to agree on institutional arbitration. Another reason for the preference for ad hoc arbitration is that parties who want to maintain control over the arbitration process, especially in highly specialized disputes, tend to insist on ad hoc arbitration7.
In practice, it is often seen that parties frequently provide for the application of the UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Arbitration Rules”) in the context of ad hoc arbitration. In this case, it is no longer possible to speak of institutional arbitration, and when parties refer to the UNCITRAL Arbitration Rules in their contracts, any matters not regulated by the parties will be governed by these rules8.
A. Challenging the Arbitrator under the UNCITRAL Arbitration Rules
The 3rd chapter of the UNCITRAL Arbitration Rules, titled “Composition of Arbitral Tribunal”, includes provisions regulating the number of arbitrators, the appointment of arbitrators, and the procedure for challenging arbitrators9. Article 12, titled “Grounds for Challenge”, states as follows10: “When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties and to the other arbitrators unless they have already been informed of them by him. An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made”.
Under the UNCITRAL Arbitration Rules, arbitrators are required to disclose any circumstances that may affect their independence and impartiality. According to the second paragraph of the provision, a challenge to an arbitrator may be made only if there are justifiable doubts as to their impartiality or independence, or if they do not possess the qualifications agreed upon by the parties. As can be seen, the grounds for challenging an arbitrator are based on the presence of doubts as to their impartiality and independence, which is a general expression that does not provide a restrictive or exemplary list of reasons that may affect impartiality and independence. However, Article 11(1) of the UNCITRAL Arbitration Rules provides an exception, stating that11; “No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties”. This provision indicates that an arbitrator’s nationality cannot be a ground for challenge unless the parties have agreed otherwise in the arbitration agreement.
Instead of providing a detailed list of circumstances and conditions that require the challenge of an arbitrator, making a general reference to comprehensive principles is considered beneficial in doctrine, as it offers more flexibility to the parties12.
B. Challenging the Arbitrator under the Turkish Code of Civil Procedure Rules
Parties who have agreed to ad hoc arbitration proceedings through an arbitration agreement may also refer to the Turkish Code of Civil Procedure (“CCP”) for the selection of arbitrators and the arbitration procedure13. Since the purpose of the CCP’s arbitration section is to regulate the procedures and principles of domestic arbitration, the provisions of the CCP will apply in cases where there is no foreign element as defined by the Turkish International Arbitration Law (“IAL”) and where the place of arbitration is determined to be Turkey14.
In ad hoc arbitration proceedings, the arbitrator appointed by a specific arbitration agreement between the parties may be challenged by one or both parties. CCP regulates this issue in Article 417. According to this article15; “(1) A person who is proposed as an arbitrator must disclose any circumstances that may give rise to justifiable doubts as to their impartiality and independence before accepting the appointment. If the parties have not been previously informed, the arbitrator must also notify them of any such circumstances that may arise later. (2) An arbitrator may be challenged if they do not possess the qualifications agreed upon by the parties, if there is a ground for challenge under the arbitration procedure agreed upon by the parties, or if there are circumstances that give rise to justifiable doubts as to their impartiality. A party may challenge an arbitrator appointed by them or in whose appointment they participated only on grounds that they became aware of after the appointment”.
Similar to the UNCITRAL Arbitration Rules, the CCP also expresses the principle that an arbitrator may be challenged if there are circumstances that give rise to justifiable doubts as to their impartiality. Accordingly, a challenge to an arbitrator may be made, but the challenge must be based on specific grounds such as impartiality doubts, incompetence, ethical violations, or bias, which must be stated in the challenge.
The reasoning of Article 417 of the CCP states that the grounds for challenge listed in the article naturally include the grounds for disqualification of judges listed in Article 34 of the CCP, unless the parties have agreed otherwise. The reasoning states: “(...) The second paragraph ensures that the arbitrator possesses the qualifications determined by the parties and that their impartiality and independence are guaranteed. The grounds for challenge listed naturally include, unless the parties have agreed otherwise, the grounds for disqualification of judges listed in Article 39 (CCP Article 34). The last sentence of the second paragraph aims to prevent the delay of arbitration through bad faith challenges to the arbitrator.” As can be seen from the reasoning of the Article 417, it is clearly stated that the grounds for disqualification of judges listed in Article 34 of the CCP are also included in the grounds for challenge of an arbitrator.
In addition to the grounds for challenge set out in the Eleventh Part of the CCP, titled “Arbitration”, the grounds for challenge of judges listed in Article 34 of the CCP, which are considered to be numerus clausus, are also accepted in doctrine as grounds for challenge of arbitrators16.
Moreover, another view accepted in doctrine is that the second paragraph of Article 417 of the CCP should be interpreted broadly to include the grounds for disqualification of judges listed in Article 36 of the CCP as grounds for challenging an arbitrator17. In this regard, Article 36 of the CCP states that a judge may be challenged if there is a significant reason to doubt their impartiality, and lists specific grounds for challenge, including: if the judge has advised or guided one of the parties in the case; if the judge has expressed their opinion on the case to one of the parties or a third person without being required to do so by law; if the judge has been heard as a witness or expert in the case or has acted as an arbitrator; if the judge has mediated or conciliated in the dispute; if the case involves a relative of the judge up to the fourth degree; or if the judge has a lawsuit or enmity with one of the parties during the trial18.
III. CHALLENGING THE ARBITRATOR IN INSTITUTIONAL ARBITRATION PROCEEDINGS
In contrast to ad hoc arbitration, institutional arbitration centers have regulations that contain rules applicable to the arbitration procedure19. In institutional arbitration, the institution conducting the arbitration has pre-determined rules of procedure. Matters related to arbitration that are not regulated by the parties’ agreement are governed by the rules of the institution. In this way, arbitration conducted under the auspices of an institution and in accordance with its arbitration rules is referred to as institutional arbitration.
In international commercial practice, many institutions are active in resolving disputes through arbitration. In Turkey, the Istanbul Arbitration Center (ISTAC) has been established to resolve national and international disputes. The main arbitration institutions recognized internationally include the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC), the Dubai International Arbitration Centre (DIAC), the American Arbitration Association (AAA), and the Stockholm Chamber of Commerce Arbitration Institute (SCC)20.
A. Grounds for Challenging the Arbitrator in Institutional Arbitration
In almost all institutional arbitration regulations, there are provisions that arbitrators should be composed of independent and impartial individuals (ICC Rules Art. 11; LCIA Art. 5/3; SSC Art. 18/1; ISTAC Art. 15/1). In addition to these, national laws related to arbitration also contain provisions regarding the withdrawal or rejection of arbitrators in cases where their independence and impartiality are affected (IAL Art. 7/D-F)21. Institutional arbitration centers, instead of making a detailed or exemplary list of reasons for the rejection of arbitrators, have used general expressions such as the existence of matters that may affect their independence and impartiality or reasons that may raise reasonable doubts about their impartiality, and have stated that rejection can be requested on this basis.
If a person appointed as an arbitrator has reasons that may negatively affect their independence and impartiality, or if they think that their independence and impartiality may be affected, they will not accept the offer of arbitration. However, if the necessary conditions for the rejection of the arbitrator are met, rejection by the parties is also accepted in institutional arbitration proceedings22.
In arbitration proceedings, arbitrators are required to disclose any potential obstacles to their appointment to the parties (ISTAC Arbitration and Mediation Rules Art. 12/3, ICC Arbitration Rules Art. 11.2). In institutional arbitration, this obligation is primarily towards the institution, and the institution subsequently transmits the arbitrator’s statement to the parties. The parties have the opportunity to comment after receiving this notification. However, during the proceedings, reasons that may create a duty obstacle may also arise. In this case, the arbitrator should notify this situation to both parties in ad hoc arbitration (IAL Art. 7/C 1, CCP Art. 417/1), and to the parties, the arbitration institution, and other arbitrators if any, in institutional arbitration (ISTAC Arbitration and Mediation Rules Art. 12/3, ICC Arbitration Rules Art. 11.3, DIS Arbitration Rules Art. 9.6). The arbitrator’s notification obligation continues throughout the proceedings23.
B. Procedure for Challenging an Arbitrator in Institutional Arbitration
According to Article 14 of the ICC Arbitration Rules, which regulates the challenge of an arbitrator, a party who alleges that an arbitrator is not impartial or independent must submit a written statement to the Secretariat, including the grounds and reasons for the challenge. However, this request must be made within 30 days. The 30-day period begins from the date when the party receives the decision regarding the appointment of the arbitrator or, if the grounds for the challenge are learned later, from the date when the party becomes aware of them24.
Article 10 of the LCIA Arbitration Rules regulates the termination of an arbitrator’s appointment if there are justifiable doubts about their impartiality or independence. If such a situation is identified, the challenging party may submit a written request to the LCIA Court for the removal of the arbitrator. The party making the request must submit a petition to the LCIA Court, the other party, and the arbitral tribunal within 14 days of the formation of the arbitral tribunal or within 14 days of learning of the grounds for the challenge, if they are learned later.
Under the LCIA rules, a party may only challenge an arbitrator they have appointed or contributed to the appointment of if they have learned of a reason for the challenge after the arbitrator’s appointment. The LCIA Court allows the other party and the challenged arbitrator to comment on the challenge petition. The Court may request additional information and documents from the challenging party, the challenged arbitrator, and other members of the arbitral tribunal when evaluating the challenge request. If the parties agree on the challenge within 14 days of the submission of the petition, the Court terminates the arbitrator’s appointment without giving reasons. However, if the parties do not agree within this period or the arbitrator does not resign, the LCIA Court decides on the challenge. If the challenge is accepted, the decision must be in writing and reasoned. A copy of the decision is sent to the parties, the challenged arbitrator, and other members of the arbitral tribunal25.
The ISTAC Arbitration Rules have a similar procedure for challenging an arbitrator as the ICC Arbitration Rules. A challenge may be made within 30 days of the parties being notified of the arbitrator’s appointment or selection. However, if the grounds for the challenge arise later in the proceedings, the challenge must be made within 30 days of learning of the grounds. The challenge request must be submitted in writing to the ISTAC Secretariat, the other party, and the challenged arbitrator, stating the reasons for the challenge clearly and specifically. Finally, the ISTAC Board evaluates the challenge request and makes a final decision. In the doctrine, it has been stated that if the 30-day period is exceeded, the arbitrator may not be challenged, and if a lawsuit is filed to annul the arbitrator’s decision, the court considering the annulment should take into account that the challenge was not made within the time limit26.
IV. JUDICIAL DECISIONS REGARDING THE CHALLENGE OF AN ARBITRATOR
A. LCIA Decisions on the Challenge of an Arbitrator
The LCIA Rules, Article 10.1, state that an arbitrator’s appointment may be revoked in cases where (i) the arbitrator requests it, (ii) the arbitrator becomes seriously ill, refuses to act, or becomes unable or unsuitable to act, or (iii) there are justifiable doubts about the arbitrator’s impartiality or independence.
The LCIA has published a summary of 32 decisions on the challenge of an arbitrator between 2010 and 201727. During this period, over 1,600 cases were registered with the LCIA, but less than 2% of them involved a challenge to an arbitrator, and only onefifth of these challenges were accepted28.
In one of the LCIA Court’s decisions, it was concluded that arbitration practitioners who act as both arbitrators and lawyers must be aware of potential conflicts29.
It is generally accepted that an arbitrator’s previous representation of one of the parties in a different case does not create doubts about their impartiality or independence. The LCIA Court has also adopted this view. However, the LCIA Court has stated that if an arbitrator has previously made a claim of fraud against one of the parties and this claim has not been resolved, there is a risk that the arbitrator may be influenced by this previous claim when making a decision in the current case30.
Arbitration practitioners must be careful when making public comments about companies. In one case, an arbitrator’s negative comments about a party’s parent company raised doubts about their impartiality31. The court applied an objective test, asking whether “a fair-minded and informed observer would think that there was a real possibility or danger that the arbitrator would be biased against that party32.
In another decision, the LCIA Court warned arbitration panels to be careful when involving arbitration secretaries in the decision-making process. The court also emphasized the importance of confidentiality. In one of the LCIA Court’s decisions, it warned arbitration panels to be careful when involving arbitration secretaries in the decision-making process, particularly with regard to their contributions to the decision. The same decision also emphasized the importance of confidentiality. It was noted that a breach of confidentiality could be considered a breach of the arbitration agreement and could be a ground for removing an arbitrator, but only if the breach was intentional and constituted a ground for removal under the Rules33.
B. Laker Airways v FLS Aerospace Case
In the Laker Airways v FLS Aerospace case, FLS Aerospace Ltd. appointed an arbitrator from the same law firm as their lawyer in an arbitration proceeding. This led to a challenge to the arbitrator’s impartiality by FLS Aerospace, as it was argued that the arbitrator’s appointment created a reasonable doubt about their impartiality. However, the court did not find any evidence of bias on the part of the arbitrator. The court stated that the general rule regarding the challenge of an arbitrator is that, in order to maintain confidence in the administration of justice, decision-makers should not have any actual or apparent bias. The court noted that, just as a decision-maker should not hear their own case, a close relationship between a decision-maker and a party to the case can also give rise to a suspicion of bias, which may require the decision-maker’s recusal. Furthermore, the court stated that, where there is a risk of bias, it is not appropriate for the decision-maker to hear the case34.
C. ASM Shipping Ltd. v TTMI Ltd. Case
In the ASM Shipping Ltd. v TTMI Ltd. case, the arbitrator who had presided over another arbitration in which the reliability of a key witness of ASM was questioned was challenged due to their involvement in the current case. Upon learning of this situation, ASM requested the arbitrator’s withdrawal, but when the arbitrator refused to withdraw, ASM applied to the court. Judge Morison decided that an objective observer would think that there was a real possibility of bias on the part of the arbitrator under the current circumstances, and therefore the arbitrator should withdraw. However, Judge Morison did not agree with ASM’s claim that the other arbitrators should also be recused, as there was no evidence that they had been influenced by the challenged arbitrator35.
IV. CONCLUSION
In both ad hoc and institutional arbitration, the independence and impartiality of arbitrators are essential conditions for a fair trial. In ad hoc arbitration, the UNCITRAL Arbitration Rules and the Turkish Code of Civil Procedure have established general principles regarding the impartiality and independence of arbitrators but have not provided a detailed list for challenging an arbitrator, allowing parties to freely arrange their arbitration agreements.
Institutional arbitration organizations’ guidelines, on the other hand, contain more detailed procedures for challenging an arbitrator. In particular, the LCIA and ISTAC provide clear provisions on the time limit for challenging an arbitrator and how to make a challenge.
An examination of example court decisions shows that when doubts arise about an arbitrator’s impartiality and independence, the challenge of the arbitrator is applied more strictly. This demonstrates commitment to the principles of justice and impartiality.
In conclusion, the challenge of an arbitrator is a crucial issue for the reliability and fairness of arbitration proceedings. In this regard, not only legal regulations but also institutional arbitration rules and court decisions must be taken into account.
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FOOTNOTE
1 İbrahim Doğan Takavut, Milletlerarası Ticari Tahkimde Usule İlişkin Konularda İrade Serbestisi, 1st Edition, İstanbul 2021, p. 27.
2 Ziya Akıncı, Milletlerarası Tahkim, 1st Edition, 2021, p. 265.
3 European Convention on Human Rights Article 6.
4 Hacı Can/ Ekin Tuna, Milletlerarası Tahkim Hukuku, 1st Edition, Ankara 2021, p. 281.
5 Takavut, p. 213.
6 Cemal Şanlı, Milletlerarası Özel Hukuk, 9th Edition, İstanbul 2021, p. 763.
7 Sibel Özel, Millletlerarası Ticari Tahkimde Kanunlar İhtilafı Meselesi, 1st Edition, İstanbul 2008, p. 28.
8 Akıncı, p. 7.
9 https://uncitral.un.org/en/texts/arbitration (Access Date: 30.07.2024).
10 UNCITRAL Arbitation Rules Article 11.
11 UNCITRAL Arbitation Rules Article 12.
12 Mustafa Serdar Özbek, Tahkim Hukuku 1. Cilt, 1st Edition, Ankara 2022, p. 1022.
13 Şaziye Tuba Ulukuş Bulut, MTK ile Karşılaştırmalı HMK Hükümlerine Göre Hakem Kararlarının İptali, 1st Edition, Ankara 2018, p. 28.
14 Özbek, p. 167.
15 Turkish Code of Civil Procedure No. 6100 Article 417, published in the Official Gazette No. 27836, dated 04.02.2011.
16 Orhan Eroğlu, Tahkimde Yargılamanın Yenilenmesi, 1st Edition, Ankara 2022, p. 115.
17 İzzet Karadaş, Ulusal İç Tahkim, 1st Edition, Ankara 2013, p. 137 – 139.
18 Code of Civil Procedure Article 36.
19 Ergin Nomer/ Nuray Ekşi/ Günseli Öztekin Gelgel, Milletlerarası Tahkim Hukuku Cilt 1, 5th Edition, İstanbul 2016, p. 3.
20 Gülçin Soylu Decdeli, “Milletlerarası Ticari Tahkimde Acil Durum Hakemi”, Altınbaş Üniversitesi, Master’s Thesis, 2019, p. 11.
21 Vahit Doğan, Milletlerarası Ticaret Hukuku, 1st Edition, Ankara 2020, p. 1153.
22 Doğan, p. 1153.
23 Can/ Tuna, p. 299.
24 ICC Arbitration Rules Article 14.
25 LCIA Arbitration Rules Article 10.
26 Ziya Akıncı/ Yasin Ekmen, Tahkimde Hukuki Dinlenilme Hakkı, On İki Levha Yayıncılık, 2022, p. 68.
27 https://www.lcia.org//News/lcia-releases-challenge-decisions-online.aspx (Access Date: 05.08.2024).
28 Melissa Balıkçı, “Hakemin Reddi ve LCIA’in Hakemin Reddine İlişkin Kararları”, in: Hukuk Postası, 1st Edition, İstanbul 2019, p. 167.
29 LCIA, No. 101689 ve 101691, 22 Haziran 2012, (https://www.lcia.org/challenge-decision-database.aspx Access Date: 04.08.2024).
30 LCIA, No. 122053, 31 Temmuz 2012, (https://www.lcia.org/challenge-decision-database.aspx Access Date: 04.08.2024).
31 LCIA, No. UN152998, 22 Haziran 2015, (https://www.lcia.org/challenge-decision-database.aspx Access Date: 04.08.2024).
32 LCIA, No. 142862, 2 Haziran 2015, (https://www.lcia.org/challenge-decision-database.aspx Access Date: 04.08.2024).
33 LCIA, No. 142683, 4 Ağustos 2016, (https://www.lcia.org/challenge-decision-database.aspx Access Date: 04.08.2024).
34 Sinem Saçkan, “Milletlerarası Tahkimde Hakemin Reddi”, Leges Hukuk Dergisi, Leges Yazılım Yayıncılık, Volume IV, Issue 132, December 2020, p. 175.
35 Saçkan, p. 175.
