Reconsidering The Legal Basis of Arbitrator's Immunity Through The Lens of The Al Misnad Case

Abstract

First paragraph: Party autonomy establishes the arbitrating parties’ power in determining the seat of arbitration. In the absence of a designation of the arbitral seat in their arbitration agreement, parties may agree to have the arbitration to be subject to arbitration institutional rules or procedural laws that provide either an appointing authority or the arbitral tribunal an undertaking to choose the seat on behalf of the parties. Although Born commented: ‘[b]oth mechanisms ordinarily function smoothly and result in the efficient choice of a suitable arbitral seat’, this was not the case for three arbitrators4 receiving custodial sentences from the Qatari Lower Criminal Court in 2018. Following the setting aside procedures of the award involving Sheikh Khalid Nasser Abdullah Al Misnad and Société d’Entreprise et de Gestion in Qatar, three arbitrators were later charged by the Qatari criminal court in connection with their role as arbitrators. In late 2018, the Qatari Lower Criminal Court imposed custodial sentences upon three International Chamber of Commerce arbitrators for harming the claimant with their decision on the seat of arbitration. The judgment confirmed that the relationship between arbitrators and the appointed parties is not based on a contractual relationship when arbitrators are entrusted with the public authority charges. This judgment not only contradicted the belief that the jurisdictional element of arbitration provided a theoretical basis for arbitrator’s immunity but also dismissed the claim that ‘[t]he new arbitration Law has resolved the issue of jurisdictional overreach of Qatari courts in relation to hearing appeals against arbitration awards.’ Confirming the Qatari courts grounding arbitration in its jurisdiction, the judgment is a disproof of the belief that “[t]he concept of arbitrators’ immunity is widely accepted in both civil and common law jurisdictions, although jurisdictions differ as to the precise extent of the immunity.” It also delivered a message to the arbitration community that arbitrators may not enjoy immunity in a jurisdiction upholding the jurisdictional approach defining arbitrators as civil servants, and once again allowed ‘jurisdictional overreach by the judiciary’.