Supreme Court 29 June 2007
In this case, which was brought before the Supreme Court of the Netherlands by the Attorney General of the Supreme Court in the interest of the law, the question was whether an arbitrator should refrain from conducting his own expert investigation.
In the arbitral proceedings, two of the three arbitrators had a medical background and had carried out a physical examination of one of the parties to the proceedings. The arbitrators then drew conclusions from this examination which conclusions were detrimental to this party. The party subsequently challenged the two arbitrators. The Supreme Court held that the performance of investigations by arbitrators themselves is allowed only under strict conditions (paragraph 3.3.4). Additional conditions apply in case the arbitrators are appointed because of their medical expertise (paragraph 3.3.5).
Although the judgment concerned an investigation in the medical field, this decision is not limited to cases involving arbitrators with medical expertise, but is also relevant to cases involving expert arbitrators at large (site inspection, accountancy investigations, etc.).
The judgment also discussed the extent to which a tribunal may continue arbitral proceedings pending a challenge.
Click here for the translation of the decision.