When Arbitrator Vacancies Arise - Chapter 21 - AAA Handbook on Commercial Arbitration, Third Edition
John Wilkinson is Of Counsel at Fulton, Rowe, Hart & Coon in New York City. He has served on the American Arbitration Association’s Large, Complex Case Panel and on its Greater New York Advisory Council for Large Complex Cases. He is the editor co-author of CONOVAN LEISURE ADR PRACTICE BOOK, John Wiley & Sons (1991) is a member of the Board of Editors of the American Arbitration Association’s ADR Currents.
WHEN ARBITRATOR VACANCIES ARISE
An issue that may not have been considered at the time the parties drafted the arbitration clause or agreed to submit their dispute to arbitration, is what happens when an arbitrator dies or has to withdraw after the hearing starts? Will the proceedings continue before the remaining arbitrators? Will a substitute arbitrator be appointed and the proceedings go forward from there? Will the proceedings have to begin anew before a new panel of arbitrators?
The answers to these questions are governed by all or some of the following: the agreement of the parties, which is generally controlling; the rules of the administering tribunal, which, if applicable, are usually dispositive in the absence of an express agreement on the subject; and, relevant case law, which is normally determinative when there is neither an express agreement nor an applicable tribunal rule.
II. Agreement of the Parties
The parties can provide for the treatment of arbitrator vacancies in their arbitration clause either directly or by incorporating the arbitration rules of an administering ADR organization, such as the American Arbitration Association, whose rules contain procedures for dealing with arbitrator vacancies. It is important to understand the impact of the arbitration agreement and applicable arbitral rules on arbitrator vacancies to avoid unanticipated consequences if a vacancy should arise.