Appointment of Arbitrators - Chapter 5 - Practical Guide to International Arbitration
Originally from Practical Guide to International Arbitration
In-house counsel often remark that they opt for arbitration rather than another type of dispute resolution because they have a hand in establishing the tribunal that will hear their dispute.
One of the most significant advantages of international arbitration over national court litigation is that the parties to an arbitration have the opportunity to designate the person(s) who will resolve their dispute. Unlike in litigation, parties to an arbitration can choose the decision-makers whom they believe are best suited to settle their dispute. It is often said that the arbitration process is only as good as the quality of the arbitrators conducting it, so selection of the arbitrators is one of the most critical steps for the users of international arbitration.
A. RULES GOVERNING THE APPOINTMENT OF ARBITRATORS
The parties are free in principle to tailor the procedure for appointing the arbitrators for their dispute. Those details typically can be found in the arbitration clause in their contract. Parties may decide in advance every aspect of the constitution of the arbitral tribunal, including the number of arbitrators, their qualifications, and the mechanism for their appointment. Or they may opt for incorporating by reference a set of arbitration procedural rules (such as the ICC Arbitration Rules, LCIA Arbitration Rules, or UNCITRAL Arbitration Rules), which provide detailed and well-established procedures.
Absent party agreement on an appointment procedure, either directly or through the selection of institutional arbitration rules, the relevant national arbitration law of the seat of arbitration will govern.
It is generally not advisable to rely on national courts for the appointment of arbitrators, as the added procedure leads to potential delay and relative uncertainty regarding the identity and quality of arbitrator.