Today I was grumpy at the office and I worked quietly with the earplugs in my years a 2 mil euros claim. Some tasks are off the agenda, some new ones appear. I am creating an electronic library of all the arbitration articles written in the Romanian law reviews.
I take advantage of every opportunity to go to court, so tomorrow there is one more case on my list. I promised myself that I would go so many times until I will be as comfortable to talk in front of the judge as sitting next to the pool.
When I arrive at the LLM class, the discussion is about arbitrators: challenge of arbitrators, removal or replacement of arbitrators and liability of arbitrators/suing arbitrators for damages.
Interesting aspects were discussed regarding whether the arbitrators can react in any way should they find a situation which could motivate a challenge request by the parties and the conclusion was that their only reaction, this being a very sensitive topic, is to isolate that arbitrator and not consider his opinions which are considered to be biased.
Can the arbitration center react? This depends on the arbitration center, for example the New ICC Rules have provisions to this regard.
The topic of replacement arbitrators is also an sensitive topic and the idea was expressed that if such arbitrators decide on important matters which would narrow the ease of reasoning of the principal arbitrator, then the latter should withdraw and leave the other arbitrator render the award.
Regarding the liability claim against arbitrators, the applicable law is established by the Private International Law roles, by the conflict of law rules, which usually is the place where the fact triggering liability was produced, so the place of arbitration.
Since law school or even earlier, I had a fascination for criminality. Now, I chose arbitration and I thought, at first, that I am very far away from the criminal side. Think again! I am thinking about writing an article on the money laundering in ad-hoc arbitration and the severe bribery involved in arbitration.
Well, tonight I found out about another palpitating story of an arbitrator who, reaching Schipol airport in Amsterdam, he was kidnapped. Another story comes to my mind, told by Prof. Bernard Hanotiau at the ICC Young Arbitrators Forum’s conference “Young Approaches to Arbitration” held in Vienna on March 23rd, on the second day of the Vis Moot. There was an international arbitration and one of the arbitrators was from an Arab country appointed by that country. During the deliberations, even the not very important one, this arbitrator would say “now, before I decide I have to consult with my party”. Of course, this seems absolutely odd. Professor Hanotiau, who was on that panel was invited together with the third arbitrator, after the rendering of the award, by the arbitrator in a neutral place, where he apologized for acting in such manner, totally contrary to the spirit of arbitration, but should he act otherwise he would have been thrown into jail. Now he is in jail.
Coming back to today’s seminar topic, should arbitrators be held liable or not for their actions? Should they feel the constraint or not? Or should there be a limited liability for gross negligence, for example?
Prof. Stefan Kroll, who was one of the speakers at the Koln Arbitration Academy and was vested Vis Moot director this year, told a terrifying alike story about an arbitrator who was threatened before rendering the award and it started with “we have your family…”.
Afterwards, I joined the preparations for the 21st Vis Moot in 2014 of the University of Bucharest Team.
A few days ago I watched motivational movies. Tonight, I watch this photograph and I think of performance. Of perfection.
Just in case there is somebody who does not know, the pictue of Nadia Comaneci, Romanian gymnast, winner of three Olympic gold medals at the 1976 Summer Olympics in Montreal and the first female gymnast to be awarded a perfect score of 10 in an Olympic gymnastic event. She also won two gold medals at the 1980 Summer Olympics in Moscow. She is one of the best-known gymnasts in the world. In 2000 she was named as one of the athletes of the century by the Laureus World Sports Academy.
Good night and see you on the hallways of the Tribunal tomorrow.