Constitution of the Arbitral Tribunal - Chapter 4 - Arbitration of International Disputes in New York

Dr. Peter (Pieter) Bekker is an international arbitration practitioner and professor. He has been a member of the Bar of the State of New York since 1992. He is also a member of the Bar of the Supreme Court of the United States. He is admitted to practice before the U.S. district courts for the Eastern and Southern Districts of New York and the U.S. Court of Appeals for the First Circuit. He is a commissioned New York Notary Public and, as such, a constitutional officer of the State of New York, where he resides.

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Originally from Arbitration of International Disputes in New York

PREVIEW

4.1. Composition of the Arbitral Tribunal and Arbitrator Selection Issues

The ability to select the members of the arbitral tribunal constitutes a major advantage for parties over litigation where the courts are composed of generalist judges randomly assigned to cases. The selection of the arbitral panel forms a crucial step in the arbitral process and as such must be approached by the parties with care and diligence, lest a unique opportunity to influence the composition of the decision-making tribunal be lost. As a rule, the quality of an arbitration is a function of the quality of the arbitrator(s) comprising the arbitral tribunal. The FAA and New York law do not prescribe a formal method for the constitution of the arbitral tribunal. Rather, they rely on the parties’ agreement, either as reflected in the arbitration agreement or separately, as regards the manner in which the arbitral tribunal is to be constituted in a given case. This is done either through the incorporation of institutional or independent rules addressing arbitrator selection or on an ad hoc basis where the parties agree on their own arbitral procedure, including the constitution of the arbitral tribunal.

In addition to their professional qualifications (expertise) and availability to serve, the impartiality and independence of candidates to serve as arbitrator are key attributes to be considered by the parties and prospective arbitrators. Disclosure of any social, financial, professional, or other relationship between the candidate and any of the individuals or entities involved in the arbitration is key, both at the outset and pending the arbitral proceedings.