Regulations on the independence and impartiality of arbitrators

Print version – Regulations on the independence and impartiality of arbitrators

APPROVED

by the Decision of the Council of the Chamber

of Commerce and Industry of the Republic of Moldova

of 18.12.2020

REGULATIONS

on the independence and impartiality of arbitrators

Chapter I. GENERAL PROVISIONS. 1

Article 1. Object of the regulation. 1

Article 2. Scope 1

Chapter II. INDEPENDENCE AND IMPARTIALITY OF ARBITRATORS. 2

Article 3. General requirements for the independence and impartiality of the arbitrator 2

Article 4. Circumstances-obstacle in the exercise of the powers of arbitrator 2

Article 5. Circumstances requiring disclosure. 2

Article 6. Disclosure procedure. 3

Article 7. Circumstances that do not require disclosure 4

Chapter III. ORDER OF INTERACTION WITH THE PARTIES TO THE ARBITRATION PROCEDURE AND THEIR REPRESENTATIVES 5

Article 8. The contact of the candidate for arbitrator with the party to the arbitration procedure and its representative 5

Article 9. Disclosure of the information when accepting the powers of arbitrator 6

Article 10. Limitation of the discussion by the person proposed to be arbitrator and by the arbitrator of the questions related to the arbitration procedure 6

Chapter I. GENERAL PROVISIONS

Article 1. Object of the regulation

The Regulations on the independence and impartiality of arbitrators (hereinafter – Regulations) shall lay down the norms of ethical conduct for arbitrators and persons who are proposed to exercise the powers of arbitrators, including on independence and impartiality, the procedure for disclosing certain circumstances, and of its contacts with the parties to the dispute and their representatives.
These Rules do not contain other requirements that may be submitted to the arbitrators by agreement of the parties, or in accordance with the Rules of arbitration procedure.
The provisions of these Rules shall apply taking into account the agreement of the parties, the Rules of Arbitration Procedure in the settlement of a certain dispute.

Article 2. Scope

These Rules shall be applied by the Arbitration Court, as a permanent arbitral institution, the arbitral tribunal established by the President of the Arbitration Court within the limits of its competence, by the parties and arbitrators in the process of establishing the arbitral tribunal, but also during the arbitration procedure.

Chapter II. INDEPENDENCE AND IMPARTIALITY OF ARBITRATORS

Article 3. General requirements for the independence and impartiality of the arbitrator

The arbitrator, from the moment of accepting the powers and throughout the arbitration process, shall be independent and impartial.
The arbitrator is independent if between the arbitrator and the parties to the dispute, the representatives of the parties, other participants in the arbitration process there are no such links that could influence the arbitrator’s position on the case.
The arbitrator is impartial if he is not directly or indirectly interested in the outcome of the examination of the dispute and does not have a pre-formed preference or other preconceived positions in relation to one of the parties to the dispute, its representative or other participants in the arbitration process.
Doubts (suspicions) regarding independence and impartiality may be conditioned, including by the patrimonial, business, professional, personal relationships, that during the arbitration process or in a reasonable preliminary period, the arbitrator is or was in a certain connection with a party to the dispute, its representative or another participant in the proceedings. Also, the doubts about independence and impartiality may be conditioned by marital, kinship, employment relationships with other members of the arbitral tribunal.
The person who is proposed to exercise the powers of arbitrator must not accept the proposal, but, if it has already been accepted, must withdraw if s/he considers himself or herself as lacking independence and being partial.

Article 4. Circumstances-obstacle in the exercise of the powers of arbitrator

The following circumstances indisputably confirm the arbitrator’s lack of independence and partiality and are an obstacle to the exercise of the arbitrator’s powers:
In the ongoing case the arbitrator, his or her spouse, a close relative takes part or previously took part as a party to the dispute, as a representative of party, or as an expert, consultant or witness.
The arbitrator, his or her spouse or close relative has an essential share of participation in the share capital (more than 5% of the share capital), or are members of the executive body, the board of directors (observers), of another body of the legal entity – party of the arbitration proceedings or of the company affiliated to that party, or its representative.
The arbitrator is a spouse or close relative of another arbitrator from the same composition of the arbitral tribunal.
The arbitrator is in an employment relationship with a party to the arbitration proceedings or with its representative, or receives from them remuneration (reward) according to civil legal relationships, or represents the interests of the party in another dispute, or participates in it as an expert or consultant.
The arbitrator made public statements on the ongoing case, including publicly giving legal assessment.

Article 5. Circumstances requiring disclosure

If the arbitrator considers himself independent and impartial, he is nevertheless be obliged, without delay, to disclose the circumstances determined in this article.
Disclosure shall be subject to any circumstances which, in the opinion of a reasonably informed person, may give rise to reasonable doubt as to the independence and impartiality of the arbitrator. Any doubts must be interpreted in the sense (advantage) of disclosing such circumstances.
The following circumstances are subject to the disclosure:

the arbitrator in the past 3 years from the commencement of the arbitration procedure, has been in employment relations with the party in dispute or its representative, or has been remunerated according to the civil legal agreement;
the arbitrator in the past 3 years from the commencement of the arbitration proceedings, has represented the interests of either party to the arbitration proceedings in another case unrelated to the dispute in question or has acted in another case with the participation of one party to the arbitration proceedings as a representative, expert or consultant;
the arbitrator during the arbitration procedure, or in the past 3 years prior to the procedure, is / was in an employment relationship with an organization or is remunerated by it under a civil legal agreement, or is a member of a law firm, provided that this organization or law firm provides or has provided in the past 3 years prior to the arbitration process, legal services or other services to one party to the dispute, or to the parent (base) company or affiliated to that party in the dispute itself or in another dispute unrelated to the first;
the arbitrator and the representative, expert or consultant of one of the parties to the arbitration proceedings serves or served in the past 3 years preceding the arbitration proceedings in the same organization;
the arbitrator is or has been in the past 3 years prior to the arbitration procedure, in job related dependency of another arbitrator from the same panel of the arbitral tribunal;
the arbitrator, its spouse or a close relative have a share in the share capital of the party to the dispute or of the parent company or a subsidiary thereof, even if that share is not essential;
the arbitrator chosen by one party to the previous dispute has been selected by the same party or has otherwise been selected, or appointed arbitrator in another case with the participation of that party provided that this other case, as to the character of claims, is related to the first case and the examination of which was not started at the same time as the first case;
the arbitrator discussed with the party in the process or with its representative the issues related to the arbitration procedure, contrary to the provisions of art. 8 or 10 of these Regulations;
the arbitrator is or in the past 3 years prior to the procedure was the advisor or scientific consultant in preparing the dissertation of the party’s representative, or the representative of the party in the case is or was in the past 3 years prior to the arbitration procedure advisor or scientific consultant in preparing the arbitrator’s dissertation.
j) there are close links between the arbitrator and the representative of a particular party, they communicate regularly, apart from their participation in the professional associations, associations and public unions of which they are part;

The very disclosure of the circumstances, which may give rise to well-founded doubts as to the independence and impartiality of the arbitrator, does not preclude the acceptance and exercising of arbitration powers, and does not oblige the competent body to admit the challenge submitted by the arbitration proceedings.

Article 6. Disclosure procedure

The circumstances set out in Article 5 of these Regulations require disclosure no later than the nominee’s acceptance of the arbitrator’s powers, but if such circumstances arise or become known to the arbitrator at a later stage of the arbitration proceedings, then the disclosures must be made immediately after they became known.
In order to disclose certain circumstances, the arbitrator must consider all available information and also make a reasonable verification (research) of the information available.
The arbitrator shall disclose the circumstances indicated in Article 5 in the arrangement established by the Rules of arbitration procedure, but if such an arrangement is not established, then s/he shall communicate these circumstances to the Arbitration Court, which shall without delay inform the parties and other members of the arbitral tribunal. If the arbitration proceedings have commenced, the arbitrator shall disclose the circumstance(s) in writing and communicate them directly to the parties and the other arbitrators of the arbitral tribunal.

Article 7. Circumstances that do not require disclosure

The arbitrator shall not be obliged to disclose circumstances which do not give rise to any doubt as to his independence or impartiality.
It shall not impede the exercising of the powers of the arbitrator and does not require disclosure, in particular, the following circumstances:

in the press or in public lectures the arbitrator expressed, without referring to the case in question, the general opinion on an issue of law, which is related to the case in question, but without referring to this case;
the representative of the party on the file is a student or was a student (master student, doctoral student) in the educational institution, where the arbitrator is or was in the past 3 years prior to the file lecturer, professor, only if the arbitrator is not or was not a advisor or scientific consultant at preparation of the thesis by the representative;
the arbitrator is or has been a member of the same bar association, another professional organization or public association with the representative of the party to the case, with the expert, the consultant, the witness, and other arbitrators of the arbitral tribunal established, if there are no close relations between them;
arbitrators from the same panel of the arbitral tribunal work or have worked in the past in the same organization, provided that the arbitrators are not or have not been in the past 3 years prior to the commencement of the arbitration proceedings in job related dependency relationships;
the arbitrators of the same panel of the arbitral tribunal or an arbitrator and the party’s representative, expert, consultant, witness, are separate co-authors of a collective writing or have been editors or reviewers of this writing.
the arbitrator and the representative of the party, the expert, the consultant, the witness enter or have previously entered into the composition of the same or another arbitral tribunal;
the arbitrator was chosen by the same party to the arbitration proceedings or by the parent company or its affiliate, arbitrator on another case(s) or otherwise selected (appointed) arbitrator on another case(s) with the participation of the party to the arbitration proceedings, provided that this other case(s) according to the character of the claims is not related to the case in question, or that this other case(s) according to the character of the claims is related to the case in question and the arbitration procedure began at the same time as the examination of the case in question;
the arbitrator participated in public activities (conferences, seminars, presentations, etc.) organized and financed by the party to the arbitration procedure or its representative, provided that the arbitrator did not receive a reward from this party or its representative;
the arbitrator and the representative of the party to the arbitration proceedings, the expert, the consultant, the witness are or have been registered in the same List of arbitrators of the Arbitration Court;
j) the arbitrator is or has been a consumer of the goods (works, services) of the party in the arbitration process in the conditions when the procurement of goods (works, services) are or have been the same as for all the buyers;
k) arbitrators from the same composition of the arbitral tribunal enter or have previously entered into the composition of the same or another composition of arbitral tribunal.

Chapter III. ORDER OF INTERACTION WITH THE PARTIES TO THE ARBITRATION PROCEDURE AND THEIR REPRESENTATIVES

Article 8. The contact of the candidate for arbitrator with the party to the arbitration procedure and its representative

If, according to the agreement of the parties, the rules of the arbitration procedure, the party has the right to choose arbitrator, then before taking the decision to choose a person who will be proposed to fulfil the powers of the arbitrator, the party to the arbitration procedure or his representative may propose to the possible candidate for the role of arbitrator (hereinafter – candidate) to hold a conversation in accordance with the order established by this article.
The conversation shall be made exclusively for the purpose of confirming the absence of well-founded doubts as to the candidate’s independence and impartiality, determining the candidate’s compliance with the professional qualification requirements and experience required to fulfil the arbitrator’s powers and also if he has sufficient time to participate in the arbitration proceedings.
If the candidate has given consent to this conversation, then during the conversation with the party to the arbitration proceedings or with its representative, the candidate is entitled to address exclusively the following questions:

the name of the parties to the arbitration proceedings and their representatives, the names of the parent and affiliated companies to the parties to the arbitration proceedings and their representatives, which are or may be involved in the arbitration proceedings, the names of other arbitrators elected or appointed by the same panel; also the names of the experts, consultants involved in the arbitration procedure;
the general nature of the dispute, the type of claims, the language of the arbitration proceedings, the applicable law, the place of the arbitration proceedings and the Rules of the arbitration proceedings, which will be applied (used);
the probable (presumed) duration of the arbitration proceedings;
the professional qualification and experience of the candidate;

The candidate must refuse to discuss with the party to the arbitration proceedings or with its representative matters other than those set out in this article;
The candidate, in any case, is not entitled to discuss the following issues:

the factual circumstances on which the claims are based;
legal positions and arguments of the parties to the arbitration proceedings;
calculation of claim amounts;
the evidence that the party to the proceedings has presented or intends to present during the arbitration proceedings;
special conditions for the payment of the arbitration fee, the fee or the coverage of any arbitration expenses;
other matters, the discussion of which involves the candidate expressing his or her opinion on the dispute.

The maintenance of the conversation of the candidate with the party to the arbitration proceedings or its representatives in accordance with the provisions of this article is not considered as a circumstance, which may raise reasonable doubts regarding the independence and impartiality of the arbitrator and does not require disclosure in the order provided by Article 6 of these Rules, if this person was subsequently appointed or chosen by one of the parties to the arbitration proceedings.
The candidate may, without explaining the reasons, refuse to maintain the conversation with the party to the arbitration proceedings or its representative, or at any time to terminate it.
The candidate may on his or her own initiative request from the party who addressed or its representative the information provided in letter b) and c) of point 3) of this article.
The candidate may provide the party to the arbitration proceedings who addressed or its representative with brief biographical information about himself or herself, including information about studies, current or previous professional activity.
The provisions of this Article shall extend to the candidate’s contacts with the party to the arbitration proceedings or with its representative, carried out in any form by any means of communication.

Article 9. Disclosure of the information when accepting the powers of arbitrator

The person who has accepted the powers of arbitrator fill in and signs a Declaration in which s/he agrees to accept and perform the powers of the arbitrator in accordance with the agreement of the parties and the Rules of Arbitration Procedure. At the existence of the circumstances determined in art. 5 of the present Regulations, the person who has accepted the powers of arbitrator, at the same time, discloses these circumstances in the order established by art. 6 of the present Regulations.
The person who has accepted the powers of arbitrator shall, without delay, communicate to the Arbitration Court brief biographical data about himself or herself, including data on studies, current and previous professional activity, if such data have not been previously presented, or some changes have occurred. The Arbitration Court shall make these data available to the parties to the arbitration proceedings at their request. The arbitrator may provide this data directly to the parties at their request.

Article 10. Limitation of the discussion by the person proposed to be arbitrator and by the arbitrator of the questions related to the arbitration procedure

The arbitrator, as well as the person who was proposed to perform the powers of arbitrator, is not entitled to discuss with the parties to the arbitration proceedings, their representatives, experts, consultants, witnesses outside the arbitration proceedings issues related to the ongoing arbitration proceedings.
Violation of this provision is considered a circumstance, which may raise reasonable doubts regarding the independence and impartiality of the arbitrator.