In Breve: Party Appointed Arbitrator and Disclosure
| Autor | 9th Circuit, Fidelity Federal Bank |
| Páginas | 191-192 |
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191
Article 19 UNCITRAL
Only the dispositions of the Arbitration Law, and not national proceedings rules, apply to the organization
of an arbitration.
The First Chamber of the Mexican Supreme Court of Justice ruled on June 2004 that the second
paragraph of Article 1435 of the Commerce Code is constitutional. The mentioned Article
corresponds to Article 19.2 of the UNCITRAL Model Law, and its second paragraph reads as:
"If no stipulation was made, the Arbitral Tribunal may, subject to the provisions of this
Title [Title Four of Book Five of the Commerce Code], direct the arbitration in the
manner it considers appropriate. This power conferred to the Arbitral Tribunal includes
that of determining the admissibility, relevance and value of the evidence”.
In a legal system such as that of Mexico that adheres to an extreme procedural formalism, the
large cited powers of the arbitrator have been considered by a certain doctrine, which obviously is
unfamiliar to arbitration, as an “excessive authority” that should be meant unconstitutional - not
understanding that what the parties are looking for is exactly to avoid detailed formalities – the
latter being one of the causes of the dysfunction of the judicial system.
In the dispute set forth, the Claimant invoked the Federal Code of Proceedings to allege that
according to Mexican procedural rules, the judge [or the arbitrator] must adhere to the text of the
law and only has those powers that such law establishes. Therefore to give an arbitral tribunal
total discretional powers regarding the evaluation of evidence has to be declared unconstitutional.
In response, the Supreme Court ruled that an arbitral tribunal does not have an absolute discretion
since its actions are governed by Title Four of the Fifth Book of the Commerce Code. There is
thus a defined legal frame that obliges the arbitral tribunal to conduct arbitrations according to
clear rules and in which fundamental procedural rights are granted to the parties, such as equal
treatment of the parties and the right to a hearing (Article 1434 of the Commerce Code; Article 18
of the UNCITRAL Model Law). Another significant aspect of this decision is having rejected the
argument developed by certain authors (and by the claimant) that Title IV must be completed by
supplemental rules like the Federal Code of Proceedings.
In Breve: Party Appointed Arbitrator and Disclosure
9th Circuit, Fidelity Federal Bank
In Fidelity Federal Bank (20040 the Ninth Circuit found that party selection of arbitrators must
put the parties on notice that the party appointed arbitrator is likely to have some personal or
professional connection to the appointing party or its attorneys. If no party requires disclosure
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