ISBN-13: 9789041131911 / Angielski / Twarda / 2009 / 296 str.
Private international actors go to arbitration to avoid adjudicatory risks, especially the risk of bias. It follows that safeguarding procedural fairness is a key concern in arbitral processes, and that exposing actual bias is crucial. However, evidence from both case law and institutional statistics shows that wily parties are willing to abuse procedural fairness and cry bias as a way of delaying proceedings and escaping enforcement, and that the frequency of such spurious challenges is increasing. This insightful book offers a proposal, solidly grounded in legal principle and precedent, for how the arbitration community should respond to this threat. The author shows how and#8216;dirtyand#8217; challenge tactics are made viable primarily by the prevalence of a judicially derived test for bias which focuses on appearances, rather than facts. He argues that the most commonly used test of bias, the and#8216;reasonable apprehensionand#8217; test, makes it easy to allege a lack of impartiality and independence. He shows that the and#8216;real dangerand#8217; test, derived from the decision of the House of Lords in Gough, has a much higher threshold, and has the additional advantage of making the arbitral award stronger at the all-important enforcement stage. In the course of the presentation the book analyzes, in extraordinary depth, such issues as the following: