The Role of the Chairman - Chapter 4

Author(s):

Robert Briner

Page Count:

18 pages

Media Description:

PDF from "The Leading Arbitrators' Guide to International Arbitration - 2nd Edition"

Published:

March, 2008

Jurisdictions:

International

Practice Areas:

Roster of Arbitrators,

Waivers,

Time Limits,

Contents of Arbitration Agreement,

Arbitration Fees

Author Detail:

Robert Briner, Switzerland is an Independent Arbitrator in Geneva, a former Chair of the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris and is now an Honorary Chairman. He is a former Partner and is currently Of Counsel in the Swiss law firm of Lenz & Staehelin. He is a member of the International Council for Commercial Arbitration (ICCA), the International Council of Arbitration for Sport (ICAS), and a member of the Executive Board of the Committee of the Swiss Arbitration Association. He is also a former Panel Chairman the United Nations Compensation Commission as well as former President of the Iran - United States Claims Tribunal. In addition, from 1992 to 1994 he was the Chair of the Section on Business Law of the International Bar Association (IBA). Mr. Briner is an Arbitrator on the ICSID List nominated by Switzerland. He is also the author of various arbitration publications.

PDF97.98 KB

$40.00

Description:

Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

Preview Page

I. INTRODUCTION

It is interesting to note that very little has been written specifically about the role of the chairman of an arbitral tribunal. The paper by Professor Claude Reymond, published first in French in 1991 and then in English in 1994, would still appear to be the main reference work on the subject. It takes in the few articles and decisions which had been published on the subject at the time, noting in particular Professor Christian Gavalda’s study. A cursory review of general material on arbitration published since then, including court decisions and academic publications, has not revealed any further analysis of the central role the chairman is often called upon to play in the arbitral process. This is understandable, given that the specific manifestations of the chairman’s role tend to remain hidden from the outside world, as they are rarely reflected in awards or, as a consequence, in state court decisions relating to such awards.

This paper has above all a practical focus. After presenting the role of the chairman as defined in recent arbitration laws and arbitration institution rules, I shall look at how the chairmen of arbitral tribunals carry out their functions in practice, referring in particular to ICC proceedings and the chairman’s role in connection with the Terms of Reference, provisional timetable, the conduct of proceedings and the deliberations. Lastly, I shall briefly touch on the question of remuneration. My approach will be descriptive. It is not my intention to define how a typical chairman should or should not act, but to offer some reflections on the ways in which different chairmen have acted in different situations. It should be remembered that no two cases are identical, nor are any two chairmen.

In view of the confidential nature of my source material, I have refrained from quoting the numbers of ICC cases unless they have already been published elsewhere. Where appropriate, I shall refer to personal experience, be it in ICC proceedings or elsewhere.

A. Institutional and Statutory Provisions

Professor Reymond has already examined the provisions relating to the role of the chairman contained in arbitration institution rules and municipal arbitration laws. I shall begin by addressing the main question of the powers exercised by the chairman when decisions are to be taken, be they procedural orders or awards. Basically, an arbitral tribunal is a collegial body and decisions should therefore be made by the whole tribunal. Experience shows that this ideal cannot always be attained and most laws and rules therefore allow decisions to be taken by a majority of the members of the tribunal. There may however be occasions where it is even impossible to achieve a majority, in which case what is the legal situation?

The UNCITRAL Arbitration Rules of 15 December 1976 state in article 31:

1. Where there are three arbitrators, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators.

2. In the case of questions of procedure, where there is no majority or when the arbitral tribunal so authorizes, the presiding arbitrator may decide on his own, subject to revision, if any, by the arbitral tribunal.