Appointment and Confirmation of Arbitrators - Chapter 4 - Arbitral Institutions Under Scrutiny: ASA Special Series No. 40
Juliet BLANCH is a Partner in Weil, Gotshal & Manges London Dispute Resolution Group and the co-head of the firm’s International Dispute Resolution Practice. Juliet plays a key role in various industry organisations, including as a Director of the London Court of International Arbitration, as Co-Chair of the Dispute Resolution and Arbitration Committee of the Inter Pacific Bar Association, as Vice President of the oil and gas section of the Arbitration Club and as a member of the Energy Charter Treaty Legal Assistance Task Force. Juliet has over 25 years experience acting as counsel before arbitral tribunals in Europe, Asia and the U.S. and as party-appointed arbitrator, sole arbitrator and chair pursuant to the rules of a number of different arbitral institutions in numerous jurisdictions. She is a regular speaker at arbitration conferences.
The purpose of this article is to provoke some stimulating debate into the role of arbitral institutions in the appointment and confirmation of arbitrators.
Rusty Park posited the theory that institutions are like electricity, in that you would miss them if they disappeared. This theory is precisely what I wish to debate in this article. Jan Paulsson has initiated a debate as to whether the practice of party appointed arbitrators should be abolished, leaving tribunals to be appointed by arbitral institutions. From the ensuing debate, it is clear the users are unlikely ever to agree to this, mainly because they want “their” person on the tribunal, but also I would suggest, due to some inherent lack of trust in some, if not all, institutions.
The choice of the arbitrator is one of the most important decisions a party can make in the course of the arbitration. The rules of the various institutions do not differ to any significant extent, each allowing the tribunal considerable flexibility in the conduct of the arbitration; it is the manner in which the rules are interpreted and implemented by a tribunal that shapes the arbitral procedure. Although the parties are unlikely to hand over entirely their ability to participate in the constitution of the tribunal, the institutions already have some powers enabling them to participate in, if not shape, this process. For example, the International Court of Arbitration of the International Chamber of Commerce (“ICC”) confirms the appointment of an arbitrator, the London Court of International Arbitration (“LCIA”) appoints all arbitrators (although the parties can nominate an arbitrator), whereas the Arbitration Institute of the Finland Chamber of Commerce (“Finnish Arbitration Institute”) and the Camara de Arbitragem Empresarial-Brasil (“CAMARB”) have no control or supervision over the appointment. So, should the institution act as dictator or as the slave of the parties?