A comparative analysis of approach to arbitral immunity in international commercial arbitration: drawing lessons for Uganda's arbitration law

Abstract

The Arbitration and Conciliation Act of Uganda is silent on arbitral immunity. Arbitral immunity shields arbitrators from liability resulting from vindictive suits by parties to an arbitration proceeding during or after the delivery of an arbitral award. It is an essential tool for promoting the independence and impartiality of arbitrators and consequently preserving the integrity of arbitration as an alternative dispute resolution institution. Arbitral immunity under international commercial arbitration is governed by the various States in their national arbitration laws in the absence of a law that harmonises the law on the issue. As a consequence, there exist varied approaches to arbitral immunity with some States favouring an extension of judicial immunity to arbitrators (absolute immunity), others opting for a balanced approach catering to the interests of arbitrators and the aggrieved parties (qualified immunity), while some maintain liability which can be limited by the parties (Contractual approach). This study analyses these different national approaches as they developed in the selected countries (USA, Switzerland, Nigeria, and Kenya) and draws lessons to justify the amendment of the Arbitration and Conciliation Act to provide for arbitral immunity in Uganda. It recommends that the Act be amended to include a provision for qualified arbitral immunity as appropriate for international commercial arbitration.