Appointing and Challenging Arbitrators - Chapter 9 - Arbitration Law of Russia: Practice and Procedure
Mr. Khodykin holds a Ph.D in Law and, from 2005 to 2012 he was an associate professor at the Moscow State Institute of International Relations (MGIMO), in addition to being in private practice.
Recognised as a rising star by Chambers & Partners, Mr. Khodykin is a frequent speaker at seminars and conferences and has authored numerous publications on international commercial arbitration and conflict of laws.
He has acted as arbitrator in cases under the ICC Rules and the Rules of the Court of Arbitration for Sport at the Russian Olympic Committee. Based in London, Mr. Khodykin advises on a wide range of litigation and arbitration matters, including commercial cases, repossession of aircraft, real estate litigation, corporate disputes and oil and gas industry cases. Mr. Khodykin has represented a broad range of clients in national and cross-border matters, including matters before the LCIA, ICSID and the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry. He has experience litigating cases before various Russian courts, including the Russian Federation Constitutional Court, the Supreme Arbitrazh Court (the highest judicial authority in Russia for commercial courts) and the Supreme Court.
9.1. EXTENT OF PARTY AUTONOMY TO ESTABLISH APPOINTMENT PROCEDURE
Art. 11 (2) of the Arbitration Act establishes the main rule governing the party’s autonomy in the appointment procedure:
“The parties are free to agree a procedure for appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article”.
Paragraphs (4) and (5) referred to above, however, envisage the procedure for appointing an arbitrator or arbitrators in case of any obstacles (including, inter alia, failure of a party to appoint an arbitrator); they do not impose any limitations upon the parties’ freedom in defining the appointment procedure.
The ICAC Rules (Section 17 (1) and 17 (2)) provide that, unless the parties have agreed otherwise, the ICAC arbitral tribunal consists of three arbitrators. With a three-member arbitral tribunal, the claimant and the respondent can each select one arbitrator (Section 17 (3) of the ICAC Rules). The chairman of the tribunal is appointed by the Presidium of the ICAC (Section 17 (7) of the ICAC Rules) and not by the co-arbitrators as is common practice in many international arbitration institutions. Practice has shown that the Presidium of the ICAC may appoint a chairman that has been suggested by the co-arbitrators, provided the nominee is a reputable and experienced arbitrator.
As has been mentioned in paragraph 8.1.1, Section 17(2) of the ICAC Rules empowers the Presidium of the ICAC to decide at its discretion whether a case may be resolved by a sole arbitrator in view of the relatively small size of the claim (usually USD 25,000 or less) or simplicity of the case. If the Presidium chooses to exercise its powers under Section 17(2), it would disregard the parties' agreement of a three member tribunal.
APPOINTING AND CHALLENGING ARBITRATORS
9.1 Extent of Party Autonomy to Establish Appointment Procedure
9.2 Procedure in Absence of Agreement by the Parties—Default Appointing Authority
9.3 Circumstances and Valid Reasons for an Arbitrator to Resign
9.4 Challenge and Replacement of Arbitrators
9.4.1 Grounds for Challenging an Arbitrator
9.4.2 Procedure and Deadlines for Challenging an Arbitrator
9.5 Procedure for Appointing a New Arbitrator