THE EXCUSAL OF A JUDGE AND THE EXCUSAL OF AN ARBITER – A GUARANTEE FOR THE IMPARTIALITY OF COURT PROCEEDINGS AND ARBITRATION PROCEEDINGS

Sažetak

The principles of independence and impartiality are of core importance and interest in court and arbitration proceedings. They represent “tools” and guarantees for establishing and assuring fair proceedings that will not be based upon favors, bias or prejudice in the adjudication of a case.

            This paper will focus on one mechanism that tempts to guarantee as much as possible the impartiality of judges in a court proceeding and the impartiality of an arbiter in an arbitration procedure. The excusal of judges and arbitrators represent a mechanism that is implemented in both, court and arbitration procedure for making sure that the judge or the arbiter will decide without prejudice or influence of a direct or indirect nature from any source or any reason.

            Lack of impartiality is a reason that can have a direct effect in the final decision. Thus, national and international documents set out the cases that may reflect on the impartiality of a judge and of an arbiter. In this paper, we will analyze and compare the reasons that are considered as lack of impartiality for a judge, in one hand and for an arbiter at the other hand and give conclusions about the similarities and distinctions between them.

            This paper will also focus on neutrality of the arbitrators.