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PROCEDURE – nemo iudex in sua causa - DB

Nemo iudex in sua causa principle


under the UNCITRAL Model Law

Article 2 A. International origin and general principles


(As adopted by the Commission at its thirty-ninth session, in 2006)
(1) In the interpretation of this Law, regard is to be had to its international
origin and to the need to promote uniformity in its application and the
observance of good faith.
(2) Questions concerning matters governed by this Law which are not
expressly settled in it are to be settled in conformity with the general
principles on which this Law is based.

[nemo iudex under art. 2 A ML] The revision of the Model Law adopted in 2006 includes
article 2 A, which is designed to facilitate interpretation by reference to internationally
accepted principles and is aimed at promoting a uniform understanding of the Model Law.
The provision follows the lines of art. 7 of the CISG, which was designed for the same
purpose.
Nevertheless, relevant case law [Astel-Peiniger Joint Venture v. Argos Engineering & Heavy
Industries Co. Ltd., High Court-Court of First Instance, Hong Kong, 18 August 1994] only
makes use of art. 2 A ML for the incorporation (of the arbitration clause) by reference, seen as
a drafting mechanism.
Another interpretation is based on a global approach to the ML, by considering that
procedures for each method are located together, with appropriate cross-references to
general principles, as noted by art. 2 A ML, the scope of the provision being enounced in its
(1), respectively uniformity and harmonization, very well reflected by the choice of title for
art. 2 A, in 2006’s view. As a general provision of the ML, it should be applied to supplement
legal voids created due to parties’ will or special provisions. In this perspective, although the
violation of the rule against actual, imputed or apparent bias, captured by the maxim nemo
iudex in sua causa, is not expressly recognized in the Model Law, it is a general principle
reflected in art. 12 Model Law. As such, although nemo iudex in sua causa is not expressly
referenced, it is ML’s uniformity principle that requires the standard of impartiality and
independence of arbitrators. This standard can only be filtered by nemo iudex, considering
that having a decision-maker resolve a dispute if the arbitrator’s state of mind in already
distinguished (impartiality) or if the arbitrator is dependent is a system which can only lead to
an absence of fairness to one party. Willingness to hear all sides and be fair (audi alteram
partem) is thus guaranteed by a lack of partiality (nemo judex). Indeed, the converse may also
be true, as lack of partiality to any one party to a dispute may inspire a greater openness to
hear all sides of the dispute.

[nemo iudex & public policy]If one can assume that an award would be in conflict with
public policy of that respective country if made in breach of the rules of natural justice.
Hence, in the case of bias, the award could be set aside under Article 34(2)(b)(ii). [Gabriel
Moens, Peter Gillis, International Trade And Business: Law, Policy And Ethics, 2000].

[judicial v. arbitral independence]As a consequence, the tests for the independence and
impartiality of both courts and tribunals rely on matters of perception.
1. If a reasonable, well-informed person who has thought the matter through would
perceive the decision-maker to be insufficiently independent or impartial, this
perception is enough to render the decision invalid, regardless of whether a lack of
independence or impartiality exists in fact. The test of what “an informed person
PROCEDURE – nemo iudex in sua causa - DB

viewing the matter realistically and practically—and having thought the matter
through” would decide is used to determine if there is lack of independence or
impartiality on an individual or institutional sense.
2. Société Régie Networks v Direction de contrôle fiscal Rhône-Alpes Bourgogne [case
no C-333/07, 22 December 2008], referring to Canadian Pacific Ltd. v. Matsqui
Indian Band [case no 23643, 26 January 1995, par. 80] notes Chief Justice Lamerțs
statement: “it is a principle of natural justice that a party should receive a hearing
before a tribunal which is not only independent, but also appears independent… the
principles for judicial independence outlined in Walter Valente v Her Majesty The
Queen, [case no 17583, 19 December 1985, par. 25] are applicable in the case of an
administrative tribunal, where the tribunal is functioning as an adjudicative body
settling disputes and determining the rights of parties.” Even though Régie heralded its
use for adjudicative bodies, the courts have made no explicit refusal to apply the
doctrine, in its more flexible form, to tribunals that are more regulatory and
investigative in nature. In Valente the court first held that a flexible degree of judicial
independence should be applied to a “variety of tribunals” (para. 25).

[CL – weak but interesting – bias – connections]


As Nathalie DesRosiers notes, the idea of conferring power on a stranger to decide disputes is
not universally accepted. DesRosiers observes that in Aboriginal tribal laws, for example,
“peacemaking courts stress the connections between the parties and the peacemaker as a
guarantee that the solution reached will work in the long run and will satisfy both parties and
society.” See DesRosiers, “Toward an Administrative Model of Independence and
Accountability for Statutory Tribunals,”