The purpose of this article is to address the responsibility of arbitrators. Through a comparative analysis of both common and civil law jurisdictions, the author looks into the scope and nature of the arbitrators’ responsibility through the lens of the principle of immunity.
Further, the article focuses on Spain to analyze the basis for and different types of arbitral responsibility. Specifically, the article looks at Arbitral Law 60/2003 of December 23 (with special emphasis on the important ruling of the Supreme Court of 15 february 2017 which moves away from gross negligence and limits the responsibility to cases of bad faith, recklessness or malicious intent), at criminal responsibility, and other types of responsibility (including extra-contractual responsibility, private disciplinary responsibility and negotiated responsibility).
The article concludes by stressing that the arbitrators’ liability regime is sui generis and thus has a cuasi jurisdictional nature. It also notes that, despite the differences in the treatrment of the matter across different jurisdictions, the results of the regulations are materially quite similar. Finally, it highlights that a rigorous treatment, although restrictive with respect to arbitral responsibility, is essential to favouring arbitration.
Iurgium [previously Spain Arbitration Review]