In fact, United Nation Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “New York Convention”) does not explicitly set the “partiality of arbitrator” as a ground for the refusal of recognition and enforcement of final arbitral award under its Article V. However, it is generally accepted that lack of impartiality on the part of the tribunal is a ground for refusing enforcement on ground of public policy under Article V. 2. (b) of the New York Convention. The question is, how the caucusing technique may result in the bias of arbitrator?
There is the risk of contamination of the arbitrator’s mind (bias) because of the information relating to the positions taken and evidence disclosed by parties for the purpose of mediation without prejudice, and using the same neutral as arbitrator who was the mediator may mean that their understanding of the case is tainted by what they learned during the without prejudice proceedings. So, it may be difficult for a mediator-arbitrator not to be influenced by the private communications he/she hears where a “caucusing” technique is adopted. Especially within the frame of article 9. 3 of Prague Rules, if the mediation fails and the arbitration proceedings continue, the mediating arbitrator will probably lose his/her objectivity and impartiality on the account of the information he/she became familiar during the ex parte mediation sessions which are not part of the record.
There are also some cases in which this exact danger has been focused on. One of the most famous cases in this regard is the Gao Haiyan v Keenye case (hereinafter “Gao Haiyan”), in particular the analyze of Court of First Instance of Hong Kong (hereinafter “CFI”) in the enforcement procedure of its final award. The CFI in Gao Haiyan case specifically pointed out the significant risk connected with the caucusing technique when used by mediating arbitrator:
“the mediator who acts as arbitrator obtains confidential information in the course of one-on-one meetings with a party. That information may consciously or sub-consciously influence the mediator when sitting as arbitrator. It would be unfair on the other party for the media-tor turned arbitrator to act upon the confidential information without first disclosing the same and affording that other party a chance to comment on any prejudicial impact of the confidential information”.
Even though CFI’s decision on non-enforcement of the arbitral award was reversed by the Court of Appeal, the CFI’s analyze is particularly important within the light of other abovementioned arguments about the risk of apparent bias resulting from caucusing.
Additionally, in the US Duke Group case, as well as in the UK Glencot v Barrett case, it was upheld that just the fact of organizing private caucuses in the mediation phase can be interpreted as suggesting a bias in the med-arbitrator.
In fact, United Nation Convention on the Recognition and
Enforcement
of Foreign
Arbitral
Awards
(hereinafter “New York Convention”) does not
explicitly
set the “partiality of
arbitrator”
as a ground for the refusal of recognition and
enforcement
of final
arbitral
award
under its Article V.
However
, it is
generally
accepted
that lack of impartiality on the part of the tribunal is a ground for refusing
enforcement
on ground of public policy under Article V. 2. (b) of the New York Convention. The question is, how the caucusing technique may result in the
bias
of arbitrator?
There is the
risk
of contamination of the
arbitrator’s
mind
(bias)
because
of the
information
relating to the positions taken and evidence disclosed by
parties
for the purpose of
mediation
without prejudice, and using the same neutral as
arbitrator
who was the
mediator
may mean that their understanding of the case
is tainted
by what they learned during the without prejudice proceedings.
So
, it may be difficult for a mediator-arbitrator not to
be influenced
by the private communications he/she hears where a “caucusing” technique
is adopted
.
Especially
within the frame of article 9. 3 of Prague
Rules
, if the
mediation
fails and the arbitration proceedings continue, the mediating
arbitrator
will
probably
lose his/her objectivity and impartiality on the account of the
information
he/she became familiar during the ex parte
mediation
sessions which are not part of the record.
There are
also
some
cases in which this exact
danger
has
been focused
on. One of the most
famous
cases in this regard is the
Gao
Haiyan
v
Keenye
case (hereinafter “
Gao
Haiyan
”),
in particular
the
analyze
of Court of
First
Instance of Hong Kong (hereinafter “CFI”) in the
enforcement
procedure of its final
award
. The CFI in
Gao
Haiyan
case
specifically
pointed out the significant
risk
connected with the caucusing technique when
used
by mediating arbitrator:
“
the
mediator
who acts as
arbitrator
obtains confidential
information
in the course of one-on-one meetings with a
party
. That
information
may
consciously
or sub-
consciously
influence the
mediator
when sitting as
arbitrator
. It would be unfair on the other
party
for the media-tor turned
arbitrator
to act upon the confidential
information
without
first
disclosing the same and affording that other
party
a chance to comment on any prejudicial impact of the confidential information”.
Even though
CFI’s decision on non-enforcement of the
arbitral
award
was reversed
by the Court of Appeal, the CFI’s
analyze
is
particularly
important
within the light of other
abovementioned
arguments about the
risk
of apparent
bias
resulting from caucusing.
Additionally
, in the US Duke Group case,
as well
as in the UK
Glencot
v Barrett case, it
was upheld
that
just
the fact of organizing private caucuses in the
mediation
phase can
be interpreted
as suggesting a
bias
in the med-arbitrator.
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