国际仲裁员的公正性问题探析

On the Impartiality of International Arbitrators

公正性是国际仲裁员必须具备的基本任职资格条件,并将影响国际仲裁的有效性与权威性。思维定势理论表明,思维定势所型塑的观念会对人的认知与判断产生持续性的正向或反向的推动作用,从而影响其事实判断与法律适用上的公正性。作为国际海洋法法庭的资深法官和仲裁法庭常被指定的知名仲裁员,Wolfrum法官对当事方不出庭的严厉态度以及对法庭管辖权扩张积极倡导立场的一致性与持续性表明其已形成固有的思维定势,进而在事实认定与法律适用上得出了不符合国际法律规则与国际社会通行观念的结论。这一定程度上表明,作为长期接受精英教育并具有丰富专业经验的国际仲裁员,也会受到思维定势及其所型塑观念的影响,进而对其公正性带来消极的效果。所以,我们应正确地认识国际仲裁员的公正性问题,从中总结经验教训并做出合适的决策。

Impartiality is a basic qualification for international arbitrators and it will affect the effectiveness and authority of international arbitration. The mindset theory shows that the concept molded by the mindset will have a continuous positive or reverse promoting effect on people’s cognition and judgment, thus affecting the fairness of their factual judgment and the application of the law. As a senior judge of the International Tribunal for the Law of the Sea and a well-known arbitrator often appointed by the Arbitration Tribunal, Judge Wolfrum’s strict attitude towards the failure of the parties to appear in court and the consistency and persistence of his positive advocacy position on the expansion of the jurisdiction of the Tribunal show that he has formed an inherent mindset, and then come to the conclusion that it is inconsistent with the rules of international law and the prevailing concepts of the international community in terms of fact-finding and application of law. To a certain extent, this shows that, as an international arbitrator who has received elite education for a long time and has rich professional experience, it will also be affected by the set of thinking and its molded ideas, which will have a negative effect on its impartiality. Therefore, we should correctly understand the impartiality of international arbitrators, sum up experiences and lessons and make appropriate countermeasures.