regarding to the challenge of final award could be prevented by including some safeguards into the Article 9 of the Prague Rules, while it is evident from the wording of the same article

The abovementioned potential problems regarding to the challenge of final award could be prevented by including some safeguards into the Article 9 of the Prague Rules, while it is evident from the wording of the same article that the Working Group did not have any intention or concern for eliminating those risks. One of the most efficient ways for avoiding these risks is to obtain the appropriate waivers from the disputing parties. For instance, this safeguard is already to be found in the International Bar Association Guidelines on Conflicts of Interest, General standard 4(d) which indicates that “an arbitrator may assist the parties in reaching a settlement of the dispute, through conciliation, mediation or otherwise, at any stage of the proceedings. However, before doing so, the arbitrator should receive an express agreement by the parties that acting in such a manner shall not disqualify the arbitrator from continuing to serve as arbitrator. Such express agreement shall be considered to be an effective waiver of any potential conflict of interest that may arise from the arbitrator’s participation in such a process, or from information that the arbitrator may learn in the process. If the assistance by the arbitrator does not lead to the final settlement of the case, the parties remain bound by their waiver”. CEDR Settlement Rules also define this safeguard in its Article 3(3) as “the Parties agree that the Arbitral Tribunal’s facilitation of settlement in accordance with these Rules will not be asserted by any Party as grounds for disqualifying the Arbitral Tribunal (or any member of it) or for challenging any award rendered by the Arbitral Tribunal”. Therefore, the silence of the Article 9 regarding the waiver instrument also increases the possibility of challenge procedure against the final award made under the Prague Rules. Additionally, Article 9 of the Prague Rules do not give a chance to arbitrator to resign if the rbitrator has doubts to his/her ability to remain impartial or independent in the future stages of the arbitration proceedings. Article 9. 1 which refers to the other settlement facilitation methods does not even consider any possibility for termination of arbitrator’s mandate after unsuccessful facilitation process and, therefore, has not developed any procedure for this purpose. According to the Article 9. 3 of the Prague Rules, if the mediation does not result in a settlement within an agreed period of time the mediating arbitrator can terminate his/her mandate only when he/she cannot obtain written consent of the parties regarding his/her continuance as arbitrator. However, International Bar Association Guidelines on Conflict of Interest in General standard 4(d) give this chance to the arbitrator by stating that “however, consistent with General Standard 2(a) and notwithstanding such agreement, the arbitrator shall resign if, 11 as a consequence of his or her involvement in the settlement process, the arbitrator develops doubts as to his or her ability to remain impartial or independent in the future course of the arbitration” and CEDR Settlement Rules in Article 7 also take the same approach with almost the same wording. As a result, in the absence of this safeguard, the Prague Rules have again lost another chance to ensure the enforceability of the final arbitral award by eliminating the risks of the hybrid procedure.