أنواع حصانة المحكم في التحكيم التجاري الدولي : دراسة مقارنة

الملخص EN

The fact that the arbitrator carried out a judicial act led to a number of trends calling for the granting of immunity from civil liability, as was the case with the state judge, However, the difference in the legal systems on the types of immunity of the judge also reflected the immunity of the arbitrator, in addition to the existence of the contract between the conflicting parties and the arbitrator, which dose not exist for the judge also contributed to the embodiment of this difference, while some legal systems to grant the arbitrator absolute immunity, under which the arbitrator dose not ask for any error issued by him/her, no matter how serious, in order to reach an end to the dispute, making decision arbitration dose not matter than how to reach this decision, while other systems adopted qualified immunity by which the arbitrator is asked not to issue the award, and also if the award was issued however the method of access to this decision was fraudulent or serious error, and the absence of legislative regulation of the immunity of the arbitral institution to include in their systems articles exempting them and exemption of the arbitrator of the responsibility, and we have concluded that this type of exemption is not immunity in the strict legal sense, but is only a condition of exemption from liability subject to its term and condition, and we were also shown the qualified immunity is the most appropriate by taking into account the interest of the arbitrator in terms of not being responsible for any mistake issue by as well as the interest of the adversaries by enabling them to answer the arbitrator because its issue error more than the need of the existence of immunity such as acts involving on fraud or gross error, which we concluded as a recommendation to our Iraqi legislator to take in to account when drafting legislation on arbitration