Browsing by Author "Wolfram, Jenny-Lin"

This thesis examines when and under which circumstances an arbitral award may be set aside in Finland due to arbitrator bias. I will investigate, analyze and systematize the relevant concepts, principles and legal rules. I also aim to highlight problems and deficiencies regarding this topic and contemplate on potential solutions to these problems. Arbitrator bias arises when justifiable doubts exist to the arbitrator’s impartiality and independence. In this study I will be defining impartiality and independence and giving account for the reasons why these terms are fundamental within arbitration. I will be analyzing the setting aside procedure and giving thought to the difference between the setting aside of an award and an award being null and void. Furthermore, I will be assessing the notion of waiver. Waiver is an essential feature of this subject, as a party cannot request the setting aside of an award if he is considered to have waived his right to challenge. In the Finnish Arbitration Act it is stated that an arbitrator may be challenged by a party, if he would have been disqualified to handle the matter as a judge, or if circumstances exist that give rise to justifiable doubts as to his impartiality or independence. Judge partiality is however left outside the scope of this study. I will instead be focusing on situations of bias that are typical for arbitrators. The Finnish Arbitration Act’s reference to judge partiality will nevertheless be analyzed critically. In the assessment of bias there are three terms of specific importance; the non-mandatory nature of the rules, the objective approach required and the justifiable doubts formula. In this study, I will define and analyze these terms. I will furthermore, contemplate on how the arbitrator's statutory obligations impact on the assessment of arbitrator bias. These statutory obligations are for example the arbitrator's general competence and duty to disclose. I will critically assess the scope of an arbitrator’s duty to disclose and the consequences of failure to disclose. In this study, I will also be giving some thought to measures parties can take that impact on the arbitrator's impartiality and independence. These measures are connected to the drafting of the arbitration agreement, the appointment of the arbitrators and the party's duty to disclose. I will furthermore, be presenting concrete examples of situations, in which an award may be set aside due to arbitrator bias. I have categorized these situations according to the arbitrator's relation to the subject matter of the dispute, the arbitrator's relation to the parties, and the arbitrator's actions and opinions.