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Rule of Law

Independence, impartiality and neutrality in legal adjudication

Diego M. Papayannis
p. 33–52

Abstracts

This paper presents an analysis of the various dimensions of independence and impartiality. Among other things, I will argue that the two concepts, both of which are profoundly implicated in the rule of law, can be conceived as values and are perfectly distinguishable from each other. I will also propose a conception of neutrality, as a third distinct value that satisfies the requirement for non-redundancy with regard to independence and impartiality. Hence, judges and arbitrators must be independent, impartial and neutral. Each of these values contributes in different ways to enabling the law to fulfil its distinctive function of facilitating social interaction in complex and plural societies.

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Excerpt

In open access from June 2018.

Outline

1 Introduction
2 What is meant by independence and impartiality?
2.1 States of mind
2.2 Institutional conditions
2.3 Values
2.4 Duties: rules or principles?
3 Conceptual relations between independence and impartiality
4 Neutrality
5 Attitudes and contexts
6 Conclusion

First lines

1 Introduction

The literature on the independence and impartiality of adjudicators and, in particular, international arbitrators, is plentiful but not always entirely clear. The first difficulty for those approaching the issue is to identify what the authors mean when they talk of independence and impartiality. Are they referring to values, legal principles, institutional conditions or genuine duties? Or do they mean the adjudicators’ own personal nature, their states of mind (beliefs, desires, attitudes, and so on) or one of many other possibilities? The second difficulty is the discrepancy concerning the conceptual relationship between independence and impartiality. Are the two concepts interchangeable? That is to say, are the two terms synonymous or, conversely, do they each have a distinct content? Is there a relationship of implication between them? Is it possible for an adjudicator to be impartial but not independent, or else independent but not impartial? And, in addition, wha...

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References

Bibliographical reference

Diego M. Papayannis, « Independence, impartiality and neutrality in legal adjudication », Revus, 28 | 2016, 33–52.

Electronic reference

Diego M. Papayannis, « Independence, impartiality and neutrality in legal adjudication », Revus [Online], 28 | 2016, Online since 10 June 2018, connection on 23 October 2017. URL : http://revus.revues.org/3546 ; DOI : 10.4000/revus.3546

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About the author

Diego M. Papayannis

Associate Professor at the Department of Private Law, Faculty of Law, University of Girona. 
 
  Diego M. Papayannis
Universitat de Girona, Facultat de dret
Campus Montilivi S/N
Girona 17001
Spain 
 
E-mail: diegomartin.papayannis@udg.edu

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