Page 54 - นิตยสารดุลพาห เล่มที่ ๒-๒๕๖๑-กฎหมาย

ดุลพาห

lumber imported from Canada. Later, an arbitrator for Canfor stated
in a public speech to a Canadian government council, that “we

have won every single challenge on softwood lumber, and yet the

U.S. continues to challenge us with respect to those issues, because
17
they know the harassment is just as bad as the process.” Although
no official decision was published, the appointing authority agreed
with the U.S. that the arbitrator’s speech involved the specific matter

in dispute and advised the arbitrator to resign. Here, the arbitrator
subsequently withdrew.

ii. ICC Arbitration Rules

ICC independence standard has also been interpreted

to include issue conflicts, but data is limited because challenges to
arbitrators are not published. There are three principles in relation
18
to issue conflicts. First, an explanation of a claim of issue conflict
must be made. For example, a party that is unhappy with the

decision on costs in an adverse arbitral award cannot contend that the

arbitrator appears to be biased on the basis that the arbitrator delivered
a public presentation regarding arbitration costs during the time that

the issue was arbitrated. The ICC Court is likely to reject the challenge
because the party has failed to explain whether the arbitrator formed

any particular view that may have influenced the issue of costs in
the arbitration.
19

17. Id. at 243.
18. Joseph R. Brubaker. The Judge Who Knew Too Much: Issue of Conflicts in International
Adjudication. Berkeley J. Int’l L. 2008.
19. Id.

พฤษภาคม - สิงหาคม ๒๕๖๑ 43