Rethinking Arbitrator Immunity: The Role of Party-Arbitrator Agreements
Journal
Journal of International Arbitration
Publisher
Kluwer Law International BV
Date Issued
2026-04-01
Author(s)
Barocio, Paulina Meza
Type
Article
Abstract
International arbitration balances private ordering with public authority, demanding both arbitrator independence and credible accountability. Across leading jurisdictions, such as France, Brazil, England, and the United States, rules on arbitrator liability are fragmented: most recognize qualified or quasi-judicial immunity, but diverge on legal characterization, thresholds for fault, and available remedies. This article diagnoses two systemic gaps: (1) unilateral institutional waivers cannot calibrate duties to the lex arbitri or mandatory law, and (2) parties rarely consent expressly to liability standards. It proposes a contractual solution: party-arbitrator agreements (PAAs) concluded at the outset of proceedings that (a) characterize diligence as a bestefforts duty, (b) adopt the most-protective immunity permitted by the seat’s law, (c) confine redress to procedural harm (restitution of arbitrator fees and institutional costs), and (d) anchor forum and governing law in the courts and law of the seat. A model PAA and implementation protocol are offered to operationalize this framework while preserving voluntariness and judicial oversight. The authors envision that this could result in greater predictability and fewer satellite suits.
License
Acceso Restringido.
URL License
How to cite
Edgardo Muñoz, Paulina Meza Barocio, 'Rethinking Arbitrator Immunity: The Role of Party-Arbitrator Agreements', (2026), 43, Journal of International Arbitration, Issue 2, pp. 173-210, https://kluwerlawonline.com/journalarticle/Journal+of+International+Arbitration/43.2/JOIA2026008