The terms contained in the arbitrator’s contract examined below are not exhaustive. The parties to the arbitrator’s contract can add to the terms in the exercise of their power of party autonomy. However, the terms examined below are considered to be important and are also predominantly discernible from every arbitrator’s contract. They are as follows;
Availability of the parties
This is a duty mutually undertaken by the arbitrator and the disputing parties and so will arise under both contracts. In ad hoc references, the arbitrator and disputing parties owe each other this duty directly. Under institutional references, the arbitrator owes this duty to the institution on the arbitrator’s contract while the disputing parties owe this duty to the institution on their contract with it. The arbitrator contracts to personally attend the arbitral proceedings and hearings and render an award within any time limits provided under the arbitration agreement (and arbitration rules) or within a reasonable time if no time is agreed or provided under the arbitration law or rules.
The disputing parties on their part promise to also attend any scheduled hearing, file documents within time and diligently pursue the arbitral reference. This term ensures the arbitrator is contractually committed to the disputing parties or arbitration institution for the duration of the arbitration proceedings.
Special qualifications of arbitrators
Where the disputing parties have indicated or expressly provided in the arbitration agreement (or subsequently but before the appointment of the arbitrator) any special technical or specialist qualifications that the appointed arbitrator should possess, such requirement becomes a term of the arbitrator’s contract and the contract between the disputing parties and institution.
It is one of the fundamental terms of the arbitrator’s contract such that, by accepting appointment, the arbitrator represents to the appointing parties (or arbitration institution) that he is possessed of the relevant special qualifications.
A breach of this term is also a disqualifying factor for which the other party to the arbitrator’s contract acquires a right to remove the arbitrator, making the term a fundamental one or a condition. Where the other party to the arbitrator’s contract decides not to remove the arbitrator, then that party has elected to treat the breach of this condition as the breach of a warranty.
Scope of the arbitrator’s powers
The scope of the issues the arbitrator is contracted to decide will be contained in the arbitration agreement. This will also include the scope of the powers exercisable by the arbitrator. It is important that the issues to be decided and the powers exercisable by the arbitrator are clearly identified.
The scope of the powers exercisable by the arbitrator are usually supplemented by those provided in the arbitration rules and the arbitration law of the seat of arbitration. The parties to the arbitrator’s contract can opt out of some powers or agree to confer some powers not provided for in the applicable arbitration rules. Any limitation on the powers exercisable by the arbitrator is an express term of the arbitrator’s contract.
Compliance with the arbitration agreement
All parties to the arbitrator’s contract and the institution’s contract owe a duty to comply with the arbitration agreement. Where the institution contracts as principal or agent, this duty is owed by both the arbitrator and the institution to each other, while in ad hoc references the duty is owed by the disputing parties and arbitrator to each other. The institution also owes this duty to the disputing parties under its contract with them.
Compliance with decisions of the arbitral tribunal
The disputing parties owe the arbitrator a duty to comply with his decisions. The disputing parties shall proceed with the arbitration in bona fide cooperation. This requirement is not just a duty imposed on the disputing parties in the arbitral reference but also a term of the arbitrator’s contract. This duty involves an undertaking by the disputing parties not to disrupt, delay or in any other way frustrate the conduct of the arbitral proceedings, and is similar to the term examined above of diligently pursuing the arbitral reference.
Remuneration of the arbitrator and institution
This term of the arbitrator’s contract regulates issues relevant to the fees pay able to the arbitrator for completing the task or his mandate. A similar term exists in the institution’s contract, which regulates the fees payable to the arbitration institution for the service it renders in administering the arbitral reference.
There are a few preliminary points to note at the outset of the examination of this term. In ad hoc arbitral references the arbitrator agrees fees directly with the disputing parties. Under institutional references the practice differs. In some institutions, the arbitrator also fixes his fees, which is not determined by the institution itself. However, in most institutions, the arbitration institution itself fixes the fees payable to the arbitrator.
Confidentiality
It is now acknowledged that the international commercial arbitral process is private but not necessarily confidential. Most national laws are silent on this issue. Some arbitration rules make express provisions on the confidentiality of the arbitral process, the documents generated from the process including the pleadings, witness statements, expert reports, documentary evidence, communications between parties and arbitral tribunal and those between the arbitrators themselves on the arbitration reference.
Equality of treatment and fair hearing
This term embodies an obligation imposed on the arbitrator to treat the disputing parties equally and fairly. The obligation may be express or implied by law. The obligation is contained in practically all arbitration rules and in most arbitration laws, is a mandatory requirement.
As a fundamental provision impacting on the principles of procedural public policy of states, national courts enforce compliance not just to give effect to the arbitration agreement or assist the arbitral process but to protect its own fundamental principles and notions of justice.
Disclosure, independence and impartiality
These are obligations imposed on arbitrators and corresponding rights of the disputing parties. This is a condition or fundamental term of the arbitrator’s contract. 6 These obligations are expressed in requirements contained in both the arbitration rules and arbitration laws so that the terms may be expressly agreed by virtue of the arbitration rules or implied by virtue of the proper law of the arbitrator’s contract.
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