International Arbitrator Appointment One vs. Three, Lawyer vs. Nonlawyer - Dispute Resolution Journal - Vol. 57, No. 3
The author is counsel in the London office of the international law firm, Wilmer, Cutler & Pickering. She is a member of the firm’s international dispute resolution group, where she deals with both private and public international law disputes. She has represented clients in a variety of governmental, energy, telecommunications, aviation, and other commercial disputes in both ad hoc and international institutional arbitrations.
Originally from Dispute Resolution Journal
While a sole arbitrator is usually effective in domestic arbitration, such is not always the case in international arbitration. While non-lawyer experts may be preferable in certain ADR processes, they may not be preferable in international arbitration. Wendy Miles examines national arbitration laws and rules of leading international arbitral institutions to understand the preference for three arbitrators over one and the practice of choosing lawyers over non-lawyers in international arbitration. This paper was presented by the author at the Second Biennial Conference on International Arbitration and ADR held in Salzburg, Austria, June 2002.
The constitution of the arbitral tribunal is one of the most important steps in an international arbitration. The skills and qualifications of the arbitrator/s and the number of members on the tribunal may have a significant impact on the development of the dispute resolution process and, ultimately, the award itself.
Under most institutional rules, and in ad hoc arbitrations, the parties will be permitted considerable autonomy in connection with the constitution of the arbitral tribunal. That is often one of the appeals of international arbitration over litigation.
Parties are free to choose both the qualifications and number of arbitral tribunal members and these decisions are usually made either:
1. at the drafting stage of the arbitration agreement; or
2. after a dispute has arisen and a party has referred the dispute to arbitration.
In certain specialist industries, parties may agree from the outset as to the number and necessary qualifications of arbitrators. For example, an international commercial aviation agreement may provide that:
…arbitration shall be conducted in London, in the English language by a single arbitrator who shall be qualified as a lawyer and experienced in the airline industry.
Whether those decisions should be made at the time the agreement is drafted or after the dispute has arisen, at some point parties will need to give careful consideration to both the qualifications and the number of arbitrators. Unfortunately, parties sometimes find themselves involved in an arbitration with three lawyers as arbitrators, having given little thought to why they have done so, or to whether or not a sole arbitrator and/or one or more non-lawyer arbitrators would have been more appropriate in the particular circumstances.
Below are some factors that should be taken into account when considering the qualifications and deciding on the number of a tribunal’s members.