Originally from World Arbitration And Mediation Review (WAMR)

I. INTRODUCTION

Drafting arbitration clauses usually involves more art than science. In designing an alternative means of resolving international disputes, drafters continually confront the challenge of preparing comprehensive, unambiguous, easily workable clauses. Despite drafters’ best efforts, however, practitioners addressing post-agreement disputes are sometimes confronted with the reality of unforeseeable circumstances frustrating the intended effects of such clauses and impeding the orderly conduct of an arbitral proceeding, such as when a vacancy occurs on an arbitration panel.

Section 5 of the United States Federal Arbitration Act (FAA), codified at 9 U.S.C. § 5, provides a mechanism by which a United States District Judge is empowered to resolve such an impediment but, as demonstrated by the recent decision of the United States Court of Appeals for the Fifth Circuit in BP Exploration Libya Ltd. and ExxonMobil Libya Ltd. v. Noble North Africa Ltd., such statutory power has limits.1