The affirmation of the
principle of arbitrators’ independence, which is essential since arbitration is
a form of justice, and indeed a specific form of justice, is a widely
recognised requirement, which it would be tempting to link to natural law and
to a principle of universal justice. In its application to real situations of conflicts of interest of all
types, however, this very broad affirmation is subject to variations, and a wide
range of solutions appears both in French and comparative law. A global review
reveals the need to find guidelines in order to combat the relative legal
unpredictability resulting from uncertainty as to the competent judge, the
judicial approach (where French case law, contrary to that of other
jurisdictions, appears to be more exigent and difficult to grasp), or also the
effects of the arbitrators’ lack of independence. Beyond technical
considerations, such analysis reveals contradictory trends in modern
arbitration: certainly an increasing intervention of good faith or ethics, but
also undeniably a “moral deterioration”, which ought to be eradicated as much
as possible.