Challenges against Arbitrators under CRCICA Rules: The Effect of Disclosure
Ismail Selim, Malak Lotfi
When looking to safeguard the impartiality and independence of arbitrators, parties have little more to rely on than the arbitrator's word. As a result, the duty to disclose is an essential component for preserving the integrity of the arbitral process. Recent developments in international arbitration practice have renewed the debate surrounding the impact of disclosure or lack thereof. This article aims to provide an overview of how disclosure-related issues are dealt with under the CRCICA Arbitration Rules 2011.To this end, we consider four case studies dealing with the two ends of the spectrum: detailed disclosure and a complete lack of disclosure.
As the question is less one of the arbitrator's personal persuasion but rather one of determining the existence of "justifiable doubts," an objective test is applied under CRCICA Rules.
From the decisions of CRCICA's Advisory Committee's tripartite ad hoc sub-committees appointed to determine the outcome of challenges, it appears that while disclosure is an important factor which weighs in favour of an arbitrator's independence, it is not always sufficient to prevent their recusal. Similarly, a failure to disclose cannot always be interpreted as signifying an arbitrator's partiality or dependence.