Among the various requirements to sit in an arbitral panel, impartiality is certainly one of the quintessential. Students of international commercial arbitration are often told in their first lecture that arbitrators must be and remain independent and impartial, and most arbitration rules include the requirement of impartiality of arbitrators in some form, whether explicit or implicitly (see e.g. UNCITRAL Rules 2010, Art. 12; ICC Rules 2012, Art. 14(1); ICDR Rules, Art. 8(1); HKIAC Rules, Art. 11(4); LCIA Rules, Art. 10(1) and (3); CIETAC Rules 2012, Art. 29(2); SIAC Rules 2010, Art. 11(1)). The said rules, however, seldom provide for any proper indication of what the parties should expect from the arbitrators, especially those they appointed, in terms of impartiality. According to Redfern and Hunter (p. 254) 'the concept of "impartiality" is considered to be connected with actual 4.78 or apparent bias of an arbitrator - either in favour of one of the parties, or in relation to the issues in dispute.' Indeed, impartiality is often regarded as 'a subjective and more abstract concept than independence, in that it involves primarily a state of mind.' (ibid.). One could refer to a dictionary definition for further clarification, but such definitions do little, if anything, to help: to cite one, the Merriam-Webster Dictionary defines one as impartial when they are 'not partial or biased', and treat or affect all equally. In complex situations such as arbitral proceedings, referring to such a definition would even complicate rather than simplify things, as we will see below.
In theory, arbitrators should be deemed as judges acting in a private dispute settlement setting; in other words, they should be completely equidistant, aiming at the preservation or restoration of justice as fundamental element of the public good, and acting as the longa manu of the state, even when the state is not involved in the proceedings in any form. However, it is common knowledge that few of the people routinely appointed to sit in arbitral tribunals are professional full-time arbitrators, who may see themselves as professional "judges for hire": most arbitrators are legal practitioners who serve as arbitrators just as much as they act as counsels (in other proceedings, ça va sans dire); and even those who have the luxury of practice exclusively as arbitrators usually come from a long, and likely high-profile, career as counsels. Therefore, a certain client-oriented forma mentis when approaching the arbitral proceedings remain, as evidenced in the interviews conducted within this project in Egypt, Italy, Malta, Denmark, Sweden, Norway and the UK during the last year and a half, that inform an article currently under peer-review.
Indeed, collecting the views and opinions of arbitration practitioners about the role of arbitrators vis-à-vis the parties shows that there are, very different interpretations of impartiality within the commercial arbitral community. It is only a select few who do not think - and have no problem saying so - that arbitrators should really be impartial, but rather act as adjunct counsels of sorts for the party that appointed them: everyone else accepts and affirms that arbitrators must remain impartial. What "impartial" means, as stated beforehand, remains quite elusive. The majority go with a textbook interpretation of the term - that is, the arbitrator must act as a judge, and act as such at all times, disregarding completely the fact that, unless they are chairing the tribunal, they have been appointed by one of the parties - which, presumably, thought such appointment would be functional, in some way, to their claim prevailing in the dispute. This is not, however, an overwhelming majority: a significant number of practitioners show in fact a diversity of possible interpretation of their required impartiality. Indeed, some maintain that their impartiality would only be affected in flip-of-the-coin situations, when a certain degree of loyalty to the party that appointed them would lead them to favour such party; others extend such loyalty to actual gratitude to the appointing party (as if parties would appoint someone for the purpose of giving them an extra source of income, rather than purely because of their expertise or opinions); and a significant number of lawyers consider, among the duties of party-appointed arbitrators, ensuring that the position expressed by the party that appointed them is clearly understood by the other members of the tribunal, and often vest themselves with the additional duty of explaining such position properly.
It is evident that impartiality cannot be considered a positive, unitary concept - and, at least within the context of international commercial arbitration, has little to do with morality. An arbitrator could indeed be impartial from many perspectives, and yet be motivated by self-interest in their ultimate decision on the dispute. Instead, impartiality is likely a negative concept - that is, one can remain impartial as long as they abstain from certain kinds of considerations on the parties and the outcome of the dispute (such as those highlighted above). It is also arguable, as Gert seminally did, that impartiality can only be deemed as a comparative concept: one cannot be impartial per se, but only with regard to something; and this is indeed what is required of arbitrators: to remain impartial with regard to the parties.
In a perfect world, an arbitrator would be an "ideal observer", one who is completely disinterested and dispassionate with regard to the dispute they are called to decide upon. Firth's theories are not too dissimilar from Dworkin's, in that impartiality requires that everyone should be treated as an equal rather than merely receive equal treatment (which, socially, leads to inequality). However, Dworkin's conception of impartiality may lead to inacceptable results when it comes to arbitration: it is indeed easier to accept the behaviour of an arbitrator that treats each party equally rather than as equals, for treating parties as equals would force said arbitrator to apply considerations of ex aequo et bono that have no room in commercial arbitral proceedings unless the parties decided to include them in the applicable law. Morality, however, has a deontological aspect - and that is the aspect that comes (or should rather come) into play when thinking about the role of arbitrators: put simply, a moral action by an arbitrator is an action in accordance with principles that are rationally acceptable by all the parties involved. It remains to be seen - and the answer likely lies in one's personal views of arbitration within a legal system - whether by "all the parties involved" one should mean the parties to a specific dispute, or all the actors in the system of international commercial arbitration (namely states, arbitrators, counsels, current and prospective parties, and domestic courts). Either way, impartiality would therefore entail searching for what is the right outcome of the dispute, rather than a good outcome (which is an aim that could, and probably should, be pursued by a judge in litigation).
Perhaps what the interviews and the wide range of interpretations of the concept of impartiality show is that morality, and consequently impartiality, are not objective concepts. One may argue that it could be made objective by a contractual stipulation between two parties - and it is hardly arguable that, should two financially equal parties agree, considerations such as those made by some interviewees with regard to their role towards the appointing parties should be nonetheless banned: party autonomy may only be limited in case of excessive imbalance between the parties' respective obligations. On the other hand, it is possible, as masterfully argued by Young, that impartiality is merely an 'idealist fiction', and any view is rooted in the social and historical context in which an agent was raised and works. The consequence would an increase in relevance of the already crucial choice of arbitrators and the seat of the arbitral proceedings, in order to maximise the possibility that the concept of impartiality that informs the appointed arbitrator's conduct is the same embraced by the appointing party. And while this may be seen as a non-problem from a utilitarian perspective, one cannot but wonder whether such an elusive and flexible concept of impartiality is even compatible with the administration of justice that, lest we forget, is in fact one of the many duties of arbitrators.
Cross-posted from The Social and Psychological Underpinnings of Commercial Arbitration in Europe