Confines of Arbiter’s Activities: COLD BENCH vs. HOT BENCH
On 17 February 2021, at the behest of the Polish Arbitration Association, a debate was held regarding the confines of an arbiter’s activities during arbitration proceedings. The meeting was attended by Polish arbitration representatives. It was hosted by: atty. Eligiusz Krześniak, President of the PAA Management Board, Professor at Lazarski University, Managing Partner at Squire Patton Boggs, and atty. Michał Kocur, PAA Secretary General and Partner at Kocur i Wspólnicy.
The norms embedded in the Polish arbitration statutes and rules, binding on arbiters, refer to independence and impartiality of an arbiter. Vagueness of these terms poses many questions, including: does the fact that the arbitration panel is actively seeking the truth constitute proclivity? Can an arbiter individually formulate disputable matters of law? Can they, notwithstanding the parties’ position or even contradicting it, independently study case law and doctrines? Is it permissible to ask questions which may be beneficial to one party and detrimental to the other?
The attendees have agreed that applying ethical standards is integral to the essence and nature of arbitration.
The advocates of the HOT BENCH approach (most within the panel) have noticed that an arbiter must oftentimes assume the leading role during the proceedings in order to ensure professional and efficient dispute resolution. The parties happen to be insufficiently prepared, which hinders expeditious proceedings. It is then reasonable for an arbiter to actively take the lead, pointing the parties toward reaching agreement in the matter.
Certain voices have also been heard during the debate that a passive arbiter may be indicative of insufficient familiarity with the subject matter. Refraining from asking questions and not striving to comprehensively explain the facts of the case may be ill-received by the participants.
On the other hand, incidents of arbiters’ objectionable behaviour have also been mentioned, such as making spiteful comments or obstinately reiterating questions meant to improve the situation of only one party to the dispute, thus breaching the impartiality principle. The panel has stressed that such blatant disregard for arbitration ethical standards must be eradicated.
The attendees have agreed as to the fact that an arbiter’s attitude during the proceedings is also affected by their personality traits. As has been duly noted, depending on an arbiter’s character and conduct in a given matter, their attitude will be more active or passive.
Summarizing the debate, it has been emphasized that an arbiter’s role has changed significantly over the recent dozen years: from individuals shying away from involvement in the matter to active “leaders” of the proceedings.
Squire Patton Boggs
Last Updated on March 1, 2021 by Karolina Ampulska