Summary LLM International Dispute Resolution - International Commercial Arbitration I - Module 5 (Arbitrator Appointment)
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Course
LLM
Institution
LLM
What is required of an arbitrator?
Do parties have autonomy to appoint arbitrators?
How many arbitrators can be appointed? By interview? What must they disclose? What immunity protects them?
What factors can determine the appointment of arbitrators?
There is the French phrase that quotes ‘Tant vaut l’arbitre, tant vaut l’arbitrage’. This means
that the advantages of arbitration will depend on the appointed arbitrator.
An arbitrator should be independent and impartial. (See below)
An arbitrator should be qualified as mandated under the law of the seat (if any) and as per the
arbitration agreement. He should have adequate international experiences required to
understand the parties from different legal or cultural backgrounds, which can lead to greater
acceptance by the parties of the tribunal and the award 1. Parties can choose an arbitration
clause that imposes specific qualifications as a condition towards their appointment 2.
Sometimes legal training may be required in that the sole arbitrator or chairman should be a
legal representative3. This may be required for setting out the reasoning for issuance of
awards, their enforceability and challenges, as tribunals must decide questions of jurisdiction
or applicable law4.
An arbitrator should possess a professional background with knowledge (80% respondents
voted most important factor below reputation5) and experience in arbitration, such as those
engaged in trade, commodity or shipping6, or business as a ‘commercial person’7. Parties
should ensure the dispute has no inbuilt cultural or social bias against it whichever law
applies. Yet such appointment of ‘a specialist scientist highly knowledgeable in the scientific
issues in dispute will not necessarily avail a proper outcome or appropriate conduct of the
arbitral proceedings’8.
An arbitrator should hold good case management skills, in which their manner will be based
on his law background. An arbitrator with a civil law background will generally have a more
inquisitorial approach. An arbitrator with a common law background will prefer to let parties
lead the evidence. But ideally, arbitration should combine both approaches.
An arbitrator should possess a strong reputation (90% of respondents voted the most
important factor9) in intelligence gathering from biological information, books, articles, and
anecdotal sources10.
An arbitrator’s nationality will be important. Stephen Bond comments that parties from
developing countries and Eastern Europe traditionally require co-arbitrators of their own
nationality, which makes it harder to find those with requisite experience as well as the same
1
Lew, Mistelis & Kröll, Comparative International Commercial Arbitration (Kluwer 2003) Chapter 10, para 10-
41.
2
Pando Compania Naviera SA v Filmo SAS [1975] 1 QB 742.
3
DIS Rules section 2(2); Article 13 Chinese Arbitration Act 1994; Article 225 of the Code concerning the
Organisation of Tribunal adopted by Chile in 1943.
4
The International Arbitrator - From the Perspective of the ICC International Court of Arbitration, Stephen R.
Bond (1991), page 6.
5
2012 QMUL International Arbitration Survey: Current and Preferred Practices in the Arbitral Process.
6
GAFTA Arbitration Rules, Rule 3.2
7
Pando Compania Naviera S.A. v. Filmo S.A.S. [1975] 1 QB 742.
8
The Party Appointed Arbitrator in International Arbitrations – Role and Selection, page 11.
9
2012 QMUL International Arbitration Survey: Current and Preferred Practices in the Arbitral Process.
10
The Party Appointed Arbitrator in International Arbitrations – Role and Selection, page 11.
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