The Challenge of Arbitrators and the Impact on the Functioning of Arbitral Tribunals - Czech and Central European Yearbook of Arbitration - Independence and Impartiality of Arbitrators - 2014

Author(s):

Evangelos Vassilakakis

Page Count:

18 pages

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1 PDF Download

Published:

February, 2014

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Abstract | The external and internal impact of the

challenge of an arbitrator are addressed. In case of a

challenge, the functioning of the arbitral tribunal may

become conditional upon an external factor, such as

the decision of a state court, if the latter has

jurisdiction to deal with the proposal on disqualification

of the challenged arbitrator. This may be the case if the

domestic provisions reproduce the basic solution of the

UNCITRAL Model Law on International Commercial

Arbitration.

The situation is less complex for the internal

functioning of the arbitral tribunal if another court or

authority decides on the challenge. This is the solution

adopted by important institutional arbitrations such

as the ICC, ICAC, LCIA, VIAC and SCC. When the

arbitral tribunal has jurisdiction to decide on the

challenge, its decision may create a rift within the

tribunal, in particular if the challenge has been

dismissed by a not unanimous award. Irrespective of the

court or authority deciding on the challenge, its

dismissal may lead to a polarization between this party

and the unchallenged co-arbitrators. On the other hand,

the acceptance of the challenge may alienate the party

who nominated the removed arbitrator.

A telling example related to the dysfunction that

challenges can generate and the way to handle them

can be found in an ICC arbitration and the judgment

Number 11/2009 of the Greek Supreme Court related
to the enforcement of the arbitral award.