regarding to the challenge of final award could be prevented by including some safeguards into the Article 9 of the Prague Rules, while it is evident from the wording of the same article

The abovementioned potential problems regarding

to

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the challenge of

f

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the

a

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inal

award

could be prevented by including some safeguards into the

Article

9 of the Prague Rules, while it is evident from the wording of the same

article

that the Working Group did not have any intention or concern for eliminating those risks. One of the most efficient ways for avoiding these risks is to obtain the appropriate waivers from the disputing parties.

For instance

,

this

safeguard is already to be found in the International Bar Association Guidelines on Conflicts of Interest, General standard 4(d) which indicates that “an

arbitrator

may assist the parties in reaching a

settlement

of the dispute, through conciliation, mediation or

otherwise

, at any stage of the proceedings.

However

, before doing so, the

arbitrator

should receive an express agreement by the parties that acting in

such

a manner shall not disqualify the

arbitrator

from continuing to serve as

arbitrator

.

Such

express agreement shall be considered to be an effective waiver of any potential conflict of interest that may arise from the

arbitrator

’s participation in

such

a

process

, or from information that the

arbitrator

may learn in the

process

. If the assistance by the

arbitrator

does not lead to the final

settlement

of the case, the parties remain bound by their waiver”. CEDR

Settlement

Rules

also

define

this

safeguard in its

Article

3(3) as “the Parties agree that the Arbitral Tribunal’s facilitation of

settlement

in accordance with these Rules will not be asserted by any Party as grounds for disqualifying the Arbitral Tribunal (or any member of it) or for challenging any

award

rendered by the Arbitral Tribunal”.

Therefore

,

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the

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ilence of the

Article

9 regarding the waiver instrument

also

increases the possibility of challenge procedure against the final

award

made under the Prague Rules.

Additionally

,

Article

9 of the Prague Rules do not give a chance to

arbitrator

to resign if

a

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the

an

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rbitrator has doubts to his

/

her ability to remain impartial or independent in the future stages of the arbitration proceedings.

Article

9.1 which refers to the other

settlement

facilitation methods does not even consider any possibility for termination of

arbitrator

’s mandate after unsuccessful facilitation

process

and,

therefore

, has not developed any procedure for

this

purpose. According to the

Article

9.3 of the Prague Rules, if the mediation does not result in a

settlement

within an agreed period of time the mediating

arbitrator

can terminate his

/

her mandate only when he

/

she cannot obtain written consent of the parties regarding his

/

her continuance as

arbitrator

.

However

, International Bar Association Guidelines on Conflict of Interest in General standard 4(d) give

this

chance to

a

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the

an

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rbitrator by stating that “

however

, consistent with General Standard 2(a) and notwithstanding

such

agreement, the

arbitrator

shall resign if, 11 as a consequence of his or her involvement in the

settlement

process

, the

arbitrator

develops doubts as to his or her ability to remain impartial or independent in the future course of the arbitration” and CEDR

Settlement

Rules in

Article

7

also

take the same approach with almost the same wording.

As a result

, in the absence of

this

safeguard, the Prague Rules have again lost another chance to ensure the enforceability of

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the

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inal arbitral

award

by eliminating the risks of

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the

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ybrid procedure.

Consequently

, in my view, by not incorporating any restrictions, especially regarding the use of caucusing technique, into the wording of

Article

9 in order to maintain the impartiality, due

process

and confidentiality principles undamaged and,

also

, by not including discussed safeguards into the content of the same

article

, the Prague Rules have risked the enforceability of final

award

and even diverged from its own object of “increasing the efficiency of arbitral proceedings”.