Spotlight Talk with Leonardo Catovic

As an organisation committed to promoting international arbitration and educating the next generation of practitioners, the SCC occasionally publishes the work of students. The SCC is also a consistent early adopter of new technologies, including AI tools. This SCC Spotlight Talk is an AI-generated summary of Stockholm University International Commercial Arbitration Law graduate Leonardo Catovic’s master’s thesis, titled “Arbitrator Liability: Should arbitrators be immune from liability under ‘abuse of process’ claims?” (May 2024).

Current Landscape of Arbitrator Liability 

Leonardo explains that arbitrator liability varies significantly across jurisdictions. He outlines three main approaches: 

• Contractual Relationship Approach: Common in civil law jurisdictions, where liability arises from the arbitrator’s contract with the parties. 
• Functional Status Approach: Prevalent in common law jurisdictions, likening arbitrators to judges and granting them a degree of immunity. 
• Hybrid Status Approach: A combination of both, recognising arbitrators’ dual role as service providers and quasi-judicial figures. 

Types of Arbitrator Misconduct 

Leonardo categorises misconduct into two types: 

• Misfeasance: Actions such as fraud, corruption, and bad-faith conduct. 
• Nonfeasance: Failures, such as not disclosing conflicts of interest or failing to render an award. 

Immunity vs Liability 

He discusses the spectrum of liability: 

• Full Immunity: Protects arbitrators to ensure their independence. 
• Full Liability: Holds arbitrators fully accountable, akin to other professionals. 
• Qualified (Limited) Liability: A balanced approach where arbitrators are immune from liability for adjudicatory functions but can be held liable for gross negligence or intentional misconduct. 

Case Studies 

Leonardo shares interesting case studies from various countries: 

• United Kingdom: Statutory immunity under the Arbitration Act 1996. 
• Spain: Liability for intentional misconduct in the Puma SE v. Estudio 2000 S.A. case. 
• Finland: Liability for failing to disclose conflicts of interest. 
• Netherlands: High bar for liability, requiring gross negligence or intentional misconduct. 
• France: Protection from liability except in cases of fraud, gross fault, or denial of justice. 

Need for Uniformity 

Leonardo advocates for a harmonised approach to provide greater transparency and predictability. He proposes a model of qualified immunity to balance protection and accountability. 

Wider Social Impacts 

He emphasises that clear standards for arbitrator liability would enhance public trust in arbitration and could strengthen the arbitration framework by extending principles of immunity to organisations and institutions. 

Conclusion 

Leonardo’s thesis calls for a harmonised model of qualified immunity to address inconsistencies in arbitrator liability standards, enhancing the transparency and reliability of international arbitration. 

Read Leonardo Catovic’s master’s thesis here.