Arbitrator’s Immunity – Fact or Fiction?
There are countries; some of them highly democratic, where one cannot enforce a foreign arbitral award if it “runs contrary to the national interest of the State.” Can the arbitrator who has rendered such an award feel safe?
In one international case, following the arbitrators’ deliberation one of the arbitrators was arrested and imprisoned for “acting contrary to the interest of the State.” That happened in the arbitrator’s own country. The arbitration institution had to replace him, to get the arbitration completed.
Another arbitrator was kidnapped by secret service agents coming from his country of origin. The incident occurred at a great international airport located on a different continent. There have been cases in which courts issued anti-suit injunctions forbidding arbitrators entering the place of arbitration or levying multi-million fines for continuing to conduct arbitration.
The sheer number of dissenting opinions in BIT arbitrations is not amazing. It’s hardly surprising that an arbitrator coming back to his home country losing the dispute files a dissenting opinion to forestall possible reprisals upon his return. After all, his name hits the headlines and the press does much to stir up strong emotions. Whenever great investment disputes are arbitrated, the press speculates on how much money a possible loss would cost the “average taxpayer.” The “average taxpayer” in question may hold a grudge against the arbitrator who was on the arbitral tribunal rendering the award. Should the arbitrator be afraid to come back home the way a football referee dreads facing enraged fans?
Whether the arbitrators are protected by any immunity is a matter of national law and the approach adopted by various countries differs significantly. The arbitrators are private persons. They remain so even when they resolve a multi-million dollar dispute or make a decision that is crucial for the national economy of one of the parties. Sometimes the decision may be important for national defense or the safety of its energy sector, etc. Meanwhile, an arbitrator can be assaulted, insulted and have the case record stolen from him. Special laws in such cases protect a judge in a court of law. In every country, assault and battery or contempt of court are even more serious than assault and battery of a police officer, municipal security guard, court enforcement officer or even a “person appointed to assist the same”. However, assaulted, hit, or insulted while discharging his duties or in connection therewith, an arbitrator would have to search for and sue the perpetrators by himself in a civil or private action.
The arbitrator’s personal safety is a matter of great importance. Many arbitrators have had funny, sometimes ridiculous, sometimes unpleasant adventures. Some of them I will share with the audience inviting for discussion concerning arbitrator’s real immunity.