The Principle of Arbitrator Independence in Arbitration Proceedings: A Study in Libyan Law

A Study in Libyan Law

Abstract

"There is no doubt that the adjudicator of a dispute must possess complete independence from the litigants and remain entirely free from any influence by either party in forming their judicial conviction, whether serving as a judge or an arbitrator. Consequently, the legislature has taken care to guarantee the impartiality and independence of both regarding the dispute submitted to them. However, the method of achieving this guarantee differs in the case of an arbitrator from that of a judge—a distinction that fundamentally stems from the fact that an arbitrator performs a private judicial function between specific litigants, whereas a judge exercises a permanent public judicial function for the public at large without prior limitation.

Because the judge occupies a permanent public office, the legislature was required to secure their independence and impartiality vis-à-vis the litigants by stipulating the causes and circumstances likely to influence them, designating these as grounds for disqualification (adam salahiyyah) from adjudicating the suit. Consequently, a judge's ruling rendered despite the presence of such grounds renders their judgment null and void.

As for the arbitrator, their relationship with one or both litigants—whatever its nature—is not, in principle, considered a ground for disqualification from hearing the arbitration proceedings, as such a relationship may precisely be the very reason for their selection, driven by the litigants' trust and conviction in their ability to resolve the dispute impartially and independently, given that their selection originates from the parties themselves in the first instance rather than being imposed upon them. However, all of this is conditional upon the relationship between either party and the arbitrator being disclosed to the opposing party prior to the commencement of the arbitration proceedings; otherwise, the objecting party retains the right to request the recusal (radd) of the arbitrator on the grounds of a lack of independence."