Should International Arbitrators be Liable for Awards which are Subsequently Annuled or Held Unenforceable?

AuthorRobert Shaw
PositionLLB, LLM (Candidate), Newcastle University. The author would like to thank his parents, Ian and Dawn Shaw, for their continued support and encouragement
[2017] 16 COLR 41
Robert Shaw*
The liability of arbitrators is a concept which ‘touches the heart’ of arbitration yet is
characterised by conceptual chaos.1 It is an issue of particular contemporary significance, given
that arbitration is rapidly developing, but this development is ‘accompanied by a perceived
deterioration of its moral standards’.2 The situation is only made worse as liability is approached
internationally from ‘two radically different perspectives’.3 Because of this there is a glaring
absence of uniformity in international arbitration law regarding the liability of arbitrators; a
lacuna which needs to be filled.4
This article will argue that arbitrators should be liable for awards which are subsequently
annulled but not for those that are held unenforceable. It will propose that the imposition of
liability rests on a two-step test. Firstly has the arbitral award been annulled? Secondly, if so
annulled, is this due to a breach of duty by the arbitrator? This proposition will be justified via
critical analysis of the theoretical rationales for arbitral liability which will determine that
arbitrators should be afforded immunity but not in absolute terms, with the setting aside of an
award the appropriate threshold to apply.
* LLB, LLM (Candidate), Newcastle University. The author would like to thank his parents, Ian an d Dawn Shaw,
for their continued support and encouragement.
1 Dario Alessi, ‘Enforcing Arbitrator’s Obligations: Rethinking International Commercial Arbitrators’ Liability’
(2014) 31(6) JIA 735.
2 Emmanuel Gaillard and John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration
(Kluwer Law International 1999) [1010].
3 Susan Franck, ‘The Liability of International Arbitrators: A Comparative Analysis and Proposal for Qualified
Immunity’ (2000) 20(1) New York Law School Journal of International and Comparative Law 1, 16.
4 Chiara Orlandi, ‘Liability of Arbitrators in the Italian Legal System’ (2002) 7 IBLJ 795.

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