The article examines the role that nondisclosure, in itself, plays in the analysis of the merits of a challenge to an arbitrator. In doing so, it seeks to establish the legal premises that, applied to the proposed hypothesis, give grounds to the conclusion contained herein. First, as challenges are grounded upon the violation of the duties of impartiality and independence, the article seeks to draw the theoretical outline of these two concepts, as well as define their underlying obligational core. The article further explores the relevance of the parties’ trust in the arbitral tribunal, in particular to ascertain how such trust is affected by nondisclosure. Then, the article addresses the duty to disclose itself, its tenor and extension. Finally, the article applies the established legal premises to conclude that, in the authors’ opinion, the failure to disclose leads to the intensification of any doubt related to the non-disclosed fact, which, being enhanced, may or may not lead to disqualification, depending on the severity of the arbitrator’s non-disclosure and of the underlying fact itself.
Revista Brasileira de Arbitragem