According to Stump v Starkman, this similar function can be tested into two steps which are (1) “whether the act is normally conducted by judge” and (2) whether the parties dealt with judge in his judicial capacity. During the time, this judicial immunity is also extended to arbitrator with the idea that arbitrator is sharing comparable function with the judge in the court. They are even immune when they are alleged with malicious or corrupt actions as long as such acts fall within the ambit or in excess of their jurisdiction and their judicial act.
Contoh akta pendirian pt free#
Judge has been granted with judicial immunity when exercising their ‘judicial act’ to ensure they are free in though and independent in judgment. Toward Immunity and Liability: A Finding to Qualified Immunity for Arbitrator Finally, this essay concludes that arbitrator should not be liable for an award the is subsequently annulled and held enforceable unless she has been approved committing misconduct. The second part will explore the existence of arbitrator duty to render enforceable award by considering the relationship between the arbitrator and the disputants under contract theory, arbitration law as well as institutional rules that encourage the arbitrator to give her best effort to render enforceable award. The examination will end up with three approaches: 1) absolute immunity, 2) absolute liability and 3) qualified immunity approach.However this essay will stand with “ qualified immunity” approach. The first part examines the nature of the arbitrators under diametrical roles that is often embedded to her, which are ‘quasi-judicial officer’ and ‘professional service provider’. This article tries to answer a question whether the arbitrator should be liable for making an award that is subsequently annulled or held unenforceable through two parts. Arbitrator needs immunity while the disputant wants possibility to obtain liability from the arbitrator. To this issue, the relation between the arbitrator with the disputants become the center of discussion as both of them has same objective, which is to render and obtain enforceable award, but has two different interests.
It will become worst if an arbitrator is susceptible to civil liability as it may disturb the continuity of arbitration as an alternative favourable forum to settle a dispute.
However, during the borderless commercial transaction, international arbitration become more complex especially when it comes to rendering an enforceable award. In the medieval era, the dispute that was brought to arbitration generally related to commercial matter of the feudal lords who want to exercise their independent jurisdiction and use a settlement procedure which is expeditious, prompt and handled by people who were themselves merchants and acutely aware of mercantile problems and customs.
The concept of arbitration at the first of its emergence was quite simple two disputants voluntarily brought their dispute to a neutral person to settle it privately.
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