Choosing an arbitrator

Depending on the arbitration agreement itself and the institutional or ad hoc rules adopted by the parties, the parties themselves will usually choose the arbitrator or arbitrators.

There will be a specified time period in which the arbitrators are to the chosen. Typically, where there is a panel of three arbitrators forming the tribunal, each party will pick one arbitrator and then the two arbitrators so appointed will nominate the third and presiding arbitrator. Where the parties have failed to appoint an arbitrator or arbitrators, the arbitration agreement and/or the applicable rules will generally provide that the appointment of the arbitrator or arbitrators will be made by the appointing authority, whether that is the arbitral institution or a designated body, such as the International Chamber of Commerce (ICC).

However, if there is not a provision that refers the matter to an appointing authority, or if an arbitrator appointed by a party or if the two appointed arbitrators fail to appoint a third (for a panel of three), then, by virtue of article 11(3) of the Model Law, a party may apply to the court (or to any other authority specified in national legislation for the purposes of appointing arbitrators).

Similarly, by virtue of article 11(4), where a party has failed to act as required under the appointment procedure or an institution has failed to perform its function in appointing an arbitrator, then again, a party may have recourse to the court (or other authority as the case may be). In such circumstance, article 11(5) will come into effect and no appeal will lie from the decision of the court.

However, it should be borne in mind that, when a court is asked to intervene in the appointment of arbitrators, it must (again, by virtue of article 11(5)) have due regard to any qualifications required of the arbitrator by the arbitration agreement, and must also have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.

It should be noted that, where the arbitration is an ad hoc proceeding and if, for example, the parties have not agreed to conduct proceedings under the UNCITRAL Rules or other rules borrowed from an institution, the national court’s assistance may well be required where a failure or lack of agreement as to the appointment of an arbitrator occurs and article 11(3) or 11(4) of the Model Law are engaged.