Brief remarks on the arbitrators’ duty of disclosure

Abstract

Since the arbitrator’s duty of disclosure relates to principles of the Brazilian Constitution (the adversary system, the right to a full defence and the protection of free enterprise), it is pos­sible to perceive that it constitutes a part of the country’s domestic public policy. This condition explains why the definition of standards for its exercise, following art. 14, § 1^st, of the Brazilian Arbitration Law, are deemed essential. The proper disclosure that is expected from the arbitrator, to whom a strict ethical commitment is imposed, is an objective duty. Any sort of subjective evalu­ation is, then, unnecessary; non-disclosure of a fact, regardless of any proof of prejudice, of its content, or even of its knowledge by the arbitra­tor, entails his impartiality; and such fact must raise reasonable doubts to his impartiality and independence on the eyes of the parties, where­as its publicity or notoriety is no reason not to disclose it.