1. Judges as Arbitrators Is this a good option? Professor Loukas Mistelis School of International Arbitration Queen Mary University of London www.arbitrationonline.org Moscow 19 June 2013

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3. Outline for Presentation Judges as Arbitrators Is this a good option? Recommendations 1 3

4. International Commercial (Private) Arbitration private and non-national system of dispute resolution the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense parties are relatively free to agree how their disputes are resolved there should be minimal court intervention binding enforceable award (NY Convention ) 4

5. Arbitration is (or should be) all about Choice Confidence / trust Autonomy and Quality 1 5

6. Arbitration operates horizontally ClaimantClaimant Lawyers RespondentRespondent Lawyers Arbitration Tribunal 1 6

7. Litigation operates vertically Arbitration Tribunal CllaimantRespondent 1 7

8. 8 The tension: Arbitrator - Judge or Service Provider?

9. 1 9 A Visible Tension? Justice Administrator Compare with national courts / judge State authority Safeguard public and state policy Service Provider Compare with other providers, eg lawyer, architect, financial advisor etc Private authority Safeguard and respect parties’ interests

10. Judges as arbitrators I Experience outside the region Yes India, Malaysia, Denmark No France, Israel, Russia With permission / restriction UK, Spain, Germany, Greece, Singapore 1 10

11. Judges as arbitrators II Quite common in other regions Generally yes in the Middle East Saudi Jordan Kuwait Bahrain etc 1 11

12. Judges as arbitrators III / M Bedjaoui just like a judge in the ordinary sense of the term, the arbitrator has the task of settling a dispute, which means that he should be subject to the juridico- ethical status applicable to judges, mutatis-mutandis; but unlike judges as such who are imposed on the parties, the arbitrator for his part is chosen (either by the parties, or by an external institution), which poses the delicate problem of the relationship between the arbitrator and the parties; however, unlike judges as such, who apply the law, the arbitrator must constantly be ready to listen to the parties and remain available for any negotiated settlement which although he may not suggest it, he can at least facilitate. … The judge benefits from a presumption – in principle already established – of independence and impartiality, The arbitrator, on the other handis obliged in every case to build up confidence, to win over the parties’ confidence and especially the confidence of the party who nominate him 1 12

13. Judges as Arbitrators IV Born Arbitrator Must Not Be National Court Judge In a number of countries, an active national court judge may not serve as an arbitrator (or may do so only with specified permissions). In the United States the FAA imposes no capacity restrictions, but U.S. judges are currently prohibited by applicable canons of judicial conduct from acting as arbitrators Fouchard The arbitrator exercises a judicial function. His duties as a private judge are modelled on the duties of national judges, and he is entitled to benefit from certain prerogatives accorded to the latter, particularly in the aim of protection 1 13

14. The Way Forward Some judges have arbitration experience before becoming judges Typically in common law In some systems (typically civil law) we may have to train judges as arbitrators Judges will not normally be suitable for Investment cases, especially ICSID 14

15. Thank you - L.Mistelis@qmul.ac.uk www.law.qmul.ac.uk www.arbitrationonline.org www.internationalarbitrationcaselaw.com 1 15