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Code of Ethics
Following Code of Ethics is recommended for all
arbitrators and Mediators associated with arbitration.in. This is in tune with
the recommended code by international agencies including FICCI.
Where the members of arbitration.in have not indicated a
separate code of ethics, the following code is deemed to be acceptable to them.
Article 1 : Fundamental
Rule
1.1 Arbitrators
shall proceed diligently and efficiently to provide the parties with a
just and effective resolution of their disputes, and shall be and
shall remain free from bias.
Article 2 : Acceptance of
Appointment
2.1 A
prospective arbitrator shall accept an appointment only if he is fully
satisfied that he is able to discharge his duties without bias.
2.2 A prospective arbitrator shall accept an appointment only
if he is fully satisfied that he is competent to determine the issues
in dispute, and has an adequate knowledge of the language of the
arbitration.
2.3 A prospective arbitrator should accept an appointment only
if he is able to give to the arbitration the time and attention which
the parties are reasonably entitled to expect.
2.4 It is inappropriate to contact parties in order to solicit
appointment as arbitrator.
Article 3 : Elements of
Bias
3.1
The criteria for assessing question relating to bias are impartiality
and independence. Partiality arises where an arbitrator favours one of
the parties, or where he is prejudiced in relation to the subject
matter of the dispute. Dependence arises from relationships between an
arbitrator and one of the parties, or with someone closely connected
with one of the parties.
3.2 Facts which might lead a reasonable person, not knowing the
arbitrator's true state of mind, to consider that he is dependent on a
party, create an appearance of bias. The same is true if an arbitrator
has a material interest in the outcome of the dispute, or if he has
already taken a position in relation to it. The appearance of bias is
best overcome by full disclosure as described in Article 4 below.
3.3 Any current direct or indirect business relationship
between an arbitrator and a party, or with a person who is known to be
a potentially important witness, will normally give rise to
justifiable doubts as to a prospective arbitrator's impartiality or
independence. He should decline to accept an appointment in such
circumstances unless the parties agree in writing that he may proceed.
Examples of indirect relationships are where a member of the
prospective arbitrator's family, his firm, or any business partner has
a business relationship with one of the parties.
3.4 Past business relationships will not operate as an absolute
bar to acceptance of appointment, unless they are of such magnitude or
nature as to be likely to affect a prospective arbitrator's judgment.
3.5 Continuous and substantial social or professional
relationships between a prospective arbitrator and a party, or with a
person who is known to be a potentially important witness in the
arbitration, will normally give rise to justifiable doubts as to the
impartiality or independence of a prospective arbitrator.
Article 4 : Duty of
Disclosure
4.1 A
prospective arbitrator should disclose all facts or circumstances that
may give rise to justifiable doubt as to his impartiality or
independence. Failure to make such disclosure creates an appearance of
bias, and may by itself be a ground for disqualification even though
the non-disclosed facts or circumstances would not of themselves
justify disqualification.
4.2 A prospective
arbitrator should disclose
any past or present business relationship,
whether direct or indirect as illustrated in Article 3.3, including
prior appointment as arbitrator, with any party to the dispute, or
any representative of a party, or any person known to be a
potentially important witness in the arbitration. With regard to
present relationships, the duty of disclosure applies irrespective
of their magnitude but with regard to past relationships only if
they were of more than a trivial nature in relation to the
arbitrator's professional or business affairs. Non-disclosure of an
indirect relationship unknown to a prospective arbitrator will not
be a ground for disqualification unless it could have been
ascertained by making reasonable enquiries;
the nature and duration of any substantial social
relationships with any party or any person known to be likely to be
an important witness in the arbitration;
the nature of any previous relationship with any
fellow arbitrator
(including prior joint service as an arbitrator);
the extent of any prior knowledge he may have of
the dispute;
the extent of any commitments which may affect
his availability to perform his duties as arbitrator as may be
reasonably anticipate.
4.3
The duty of disclosure continues throughout the arbitral proceedings
as regards new facts or circumstances.
4.4
Disclosure should be made in writing and communicated to all parties
and arbitrators. When an arbitrator has been appointed, any previous
disclosure made to the parties should be communicated to the other
arbitrators.
Article 5 : Communications
with parties
5.1
When approached with a view to appointment, a prospective arbitrator
should make sufficient enquiries in order to inform himself whether
there may be any justifiable doubts regarding his impartiality or
independence; whether he is competent to determine the issues in
dispute; and whether he is able to give the arbitration the time and
attention required. He may also respond to enquiries from those
approaching him, provided that such enquiries are designed to
determine his suitability and availability for the appointment and
provided that the merits of the case are not discussed. In the event
that a prospective sole arbitrator or presiding arbitrator is
approached by one party alone, or be one arbitrator chosen
unilaterally by a party or (a "party-nominated" arbitrator), he should
ascertain that the other party or parties, or the other arbitrator,
has consented to the manner in which he has been approached. In such
circumstances he should, in written or orally, inform the other party
or parties, or the other arbitrator, of the substance of the initial
conversation.
5.2 If a party-nominated arbitrator is required to participate
in the selection of a third or presiding arbitrator, it is acceptable
for him (Although he is not so required) to obtain the views of the
party who nominated him as to the acceptability of candidates being
considered.
5.3 Throughout the arbitral proceedings, an arbitrator should
avoid any unilateral communications regarding the case with any party,
or its representatives. If such communication should occur, the
arbitrator should inform the other party or parties and arbitrators of
its substance.
5.4 If an arbitrator becomes aware that a fellow arbitrator has
been in improper communication with a party, he may inform the
remaining arbitrators and they should together determine what action
should be taken. Normally, the appropriate initial course of action is
for the offending arbitrator to be requested or refrain from making
any further improper communications with the party. Where the
offending arbitrator fails or refuses to refrain from improper
communications, the remaining arbitrators may inform the innocent
party in order that he may consider what action he should take. An
arbitrator may act unilaterally to inform a party of the conduct of
another arbitrator in order to allow the said party to consider a
challenge of the offending arbitrator only in extreme circumstances,
and after communicating his intention to his fellow arbitrators in
writing.
5.5 No arbitrator should accept any gift or substantial
hospitality, directly or indirectly from any party to the arbitration.
Sole arbitrators and presiding arbitrators should be particularly
meticulous in avoiding significant social or professional contracts
with any party to the arbitration other than in the presence of the
other parties
Article 6 : Fees
6.1 Unless the
parties agree otherwise or a party defaults, an arbitrator shall make
no unilateral arrangements for fees or expenses.
Article 7 : Duty of
diligence
7.1 All
arbitrators should devote such time and attention as the parties may
reasonably require having regard to all the circumstances of the case
and shall do their best to conduct the arbitration in such a manner
that costs do not rise to an unreasonable proportion of the interests
at stake.
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