Written 24-12-2013 after attending a seminar for FIDIC contracts in Dubai. Below are based on what Dr. Nael Bunni an expert in international arbitration and FIDIC contracts told us in regards to the extent of impartiality that prevails under English law: -------------------------------------------------------------------------------------------------------- Independency vs impartiality in the eyes of law A brief commentary: In a recent seminar I have attended a week ago in which it was concerned with FIDIC contracts for civil engineering projects. The speaker Dr Nael bunni stated by way of giving an example to illustrate the difference between being independent & impartial; that in a disputed case between a Norwegian and a Italian party the head of an arbitral tribunal ( a private judge) was overheard by one of Italian parties outside of the formal hearing to have said that: I would never listen to what those Italian bastards say, they are all liers The arbitrator (a private judge) said that phrase by a way joke rather than intentionally as he claimed. This arbitrator who was supposed to act impartially was removed by an order from an English court upon a complaint filed by the Italian party who heard them. The court decided to do so by concluding that the arbitrator cannot be trusted for his impartiality or state of mind. The lesson here ladies & gentleman is that although the neutral arbitrator declared his independency as being not affiliated with any of the parties in any way yet he was further required to be impartial. The difference between independency & impartiality is that the former is a requirement to be physically independent of both parties while the latter is a state of mind. So though he was truly neutral & independent yet English courts required him to be impartial as in having pure intentions towards both parties ; without prejudice, to give a fair hearing for both & ultimately a none biased decision in favor of one. Therefore the phrase in between quotations above which was said by the arbitrator as a joke over lunch time; was enough to declare him not impartial under English Law. To claim that your neutral & independent is one thing whilst your state of mind is another & herein lies the difference.To this extent pure intentions or impartiality prevails under English law. With kindest regards, Jawad H.
Posted on: Mon, 12 Jan 2015 20:13:21 +0000
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