The UNCITRAL Arbitration Rules and the Truncated Tribunal - Vol. 4 No. 2 ARIA 1993
M. Scott Donahey is a partner at Holtzmann, Wise & Shepard, Palo Alto, California.
Originally from American Review of International Arbitration - ARIA
A "truncated tribunal" is one that consists of three or more arbitrators, always an odd number, in which one of the arbitrators refuses to participate in all or part of the proceedings. When such a tribunal proceeds to issue an award, the validity of such an award has sometimes been challenged. Certain systems of arbitration rules expressly provide for the efficacy of the truncated tribunal and the validity of the awards issued thereby. The United Nations Commission on International Trade Law ("UNCITRAL") Arbitration Rules do not cover this eventuality in any one provision. The question arises: do the UNCITRAL Arbitration Rules permit the functioning of a truncated tribunal and recognize the validity of an award issued by such a tribunal?
I. FOUR POINTS AT WHICH THE TRUNCATED TRIBUNAL MIGHT ARISE
At the Xth International Arbitration Congress held in Stockholm, Sweden during the period of May 28-31, 1990, one of the ICCA working groups focused on "Preventing Delay and Disruption of Arbitration." Four topics of Working Group 1 dealt with conduct by a party-appointed arbitrator designed to obstruct the arbitration proceedings. The discussion of the four topics suggested four distinct points at which an arbitrator might choose to absent himself or herself from the proceedings:
1.Following appointment, but prior to commencement of pre-hearing proceedings or substantive hearings;
2.During the hearings themselves;
3.Following the hearings, but during the deliberations;
4.Following deliberations at the time the award is to be signed.