Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 21

WHEN ARBITRATOR VACANCIES ARISE

John Wilkinson

I. Introduction

An issue that may not have been considered at the time the parties drafted the arbitration clause or agreed to submit their dispute to arbitration, is what happens when an arbitrator dies or has to withdraw after the hearing starts? Will the proceedings continue before the remaining arbitrators? Will a substitute arbitrator be appointed and the proceedings go forward from there? Will the proceedings have to begin anew before a new panel of arbitrators?

The answers to these questions are governed by all or some of the following: the agreement of the parties, which is generally controlling; the rules of the administering tribunal, which, if applicable, are usually dispositive in the absence of an express agreement on the subject; and, relevant case law, which is normally determinative when there is neither an express agreement nor an applicable tribunal rule.

II. Agreement of the Parties

The parties can provide for the treatment of arbitrator vacancies in their arbitration clause either directly or by incorporating the arbitration rules of an administering ADR organization, such as the American Arbitration Association, whose rules contain procedures for dealing with arbitrator vacancies. It is important to understand the impact of the arbitration agreement and applicable arbitral rules on arbitrator vacancies to avoid unanticipated consequences if a vacancy should arise.