Requirements for the Appointment of Arbitrator by the Court - Chapter 10 - Arbitration Law of Czech Republic: Practice and Procedure
Alexander J. Bělohlávek, Univ. Professor, Dr.iur., Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/CZE (Branch N.J./US), Senior Partner of the Law Offices Bělohlávek, Dept. of Law, Faculty of Economics, Ostrava, CZE, Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, CZE (visiting), Chairman of the Commission on Arbitration ICC National Committee CZE, Arbitrator in Prague, Vienna, Kiev etc. Member of ASA, DIS, Austrian Arb. Association. The President of the WJA – the World Jurist Association, Washington D.C./USA.
10.I. SECTION 10(1) OF THE ARBACT
When appointing arbitrators, a court is bound by the parties’ agreement on the person of the arbitrator if, in the court’s opinion, that agreement is sufficiently specific (see Section 7 of the ArbAct and the commentary on that provision) and is not contrary to the mandatory provisions of the ArbAct. This means, for example, that if, in the arbitration agreement, the parties agreed that the arbitrator would be a person meeting certain criteria (such as holding a degree in law or in another field), the court would be bound by that agreement. Otherwise, it is bound only by general preconditions that must, in accordance with Section 4 of the ArbAct, be met by the arbitrator (conditions of eligibility to become and to hold office as an arbitrator), and by the principle of the independence of the arbitrator (see Section 8 of the ArbAct and the commentary on that provision). In consumer disputes, only an arbitrator registered in the list of arbitrators for consumer disputes, maintained by the Ministry of Justice of the Czech Republic (Section 4(4) and Sections 35a to 35d of the ArbAct) may be appointed. A court may, prior to the appointment of an arbitrator within the meaning of Section 9 of the ArbAct, also seek the opinion of such a person, particularly regarding the condition of independence and willingness to take on the position of arbitrator; indeed, this approach is recommendable. The court may even seek the parties’ opinion, although this procedure is unusual as it is rooted in the fact that the court, as an appointing authority, must engage in authoritative intervention following the parties’ inability to agree on an arbitrator or otherwise appoint an arbitrator (see Section 7 of the ArbAct).