Are there any default requirements as to the selection of a tribunal?
Failing the parties’ agreement on a selection mechanism either directly or implicitly through the application of institutional rules, the ACCP provides for a default mechanism (section 587). Based on Art 11 of the Model Law, these rules stipulate a four weeks deadline for the mutual appointment, the number and the method of selecting arbitrators by each party and a subsidiary mechanism for the arbitrator selection by domestic courts. Such a decision on the selection by domestic courts is not subject to appeal. In addition, the Austrian arbitration law stipulates rules for the selection of arbitrators in multi-party arbitration. Regardless of the parties’ agreement, a tribunal must always be composed of an odd number of arbitrators.
French law contains few default requirements that are applicable in case the parties do not agree otherwise. For example, Article 1452 CCP provides that, if the parties do not agreed on the procedure for appointing the arbitrator(s):
(1) Where there is to be a sole arbitrator and if the parties fail to agree on the arbitrator, he or she shall be appointed by the person responsible for administering the arbitration or, where there is no such person, by the judge acting in support of the arbitration. In France, the judge acting in support of the arbitration is called the juge d’appui.
(2) Where there are to be three arbitrators, each party shall appoint an arbitrator, and the two arbitrators so appointed shall appoint a third arbitrator. If a party fails to appoint an arbitrator within one month following receipt of a request to that effect by the other party, or, if the two arbitrators fail to agree on the third arbitrator within one month of having accepted their mandate, the person responsible for administering the arbitration or, where there is no such person, the juge d’appui shall appoint the third arbitrator.
Similarly, Article 1453 provides that, if there are more than two parties to the dispute and they fail to agree on the procedure for constituting the arbitral tribunal, the person responsible for administering the arbitration or, where there is no such person, the juge d’appui shall appoint the arbitrator(s).
The Arbitration Act provides that the number of arbitrators may be chosen freely by the parties to the arbitration agreement, but must always be uneven. If the parties are silent about the number of arbitrators, the law establishes that there will be three: two appointed by each one of the parties and the third chosen by the two arbitrators appointed by the parties.
The parties are free to agree whether disputes should be submitted to a sole arbitrator or an arbitral tribunal; however, an arbitral tribunal must comprise an odd number of arbitrators. If the parties fail to agree, there will be three arbitrators: each party can appoint one arbitrator, and those two arbitrators shall appoint a presiding arbitrator. Where there are multiple claimants or respondents and the dispute is referred to three arbitrators, the claimants jointly and the respondents jointly shall each appoint one arbitrator.
The Code of Civil Procedure provides for the nullity of the arbitration clause which allows one of the parties privileged participation in the nomination of the arbitrator or which provides a party’s right over the other party to nominate the arbitrator or to have more arbitrators than the other party.
The main rule under the Arbitration Act is that the tribunal shall consist of three arbitrators; one each appointed by the parties and one chairman appointed by the party appointed arbitrators. However, freedom of contract applies and the parties may agree on other set ups for the tribunal, e.g. a sole arbitrator.
The default rule under the SCC Rules is that the tribunal shall consist of three arbitrators.
In an ad hoc arbitration, if the parties have failed to agree on the number or identity of the arbitrators, either party can request a UAE court to appoint the arbitrators (Article 204, CPC). The court’s decision will be final and not subject to appeal (Article 204(2), CPC). In institutional arbitrations, the rules will typically prescribe a default procedure in the event that the method of appointment fails. See, for example, Articles 8.2 and 9 of the DIAC Rules.
Under the DIFC Arbitration Law, where there is no agreement between the parties regarding the appointment procedure, the default procedure under Article 17(3) of the DIFC Arbitration Law applies. This provides that:
- In an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators shall appoint a third arbitrator; if a party fails to appoint an arbitrator within thirty days of receipt of a request to do so or the two arbitrators fail to agree on the appointment of the third within thirty days of their appointment, the appointment shall be made, upon request of a party, by the DIFC Court of First Instance.
- In an arbitration with a sole arbitrator, if the parties do not agree on the appointment of such arbitrator within thirty days of one party requesting the other party to do so then the arbitrator shall be appointed by the DIFC Court of First Instance on the request of a party.
In an arbitration with more than two parties, if such parties have not agreed in writing that they represent two separate sides for the formation of the arbitral tribunal, the DIFC Court of First Instance shall appoint the arbitral tribunal without regard to any party’s nomination. In such circumstances, the arbitration agreement shall be treated for all purposes as a written agreement for the DIFC Court of First Instance to appoint the arbitral tribunal.
Art. 179 para 2 PILA states that the state court at the place of arbitration ("juge d'appui") may be seized by the parties (or one of the parties) to appoint the arbitrators of an arbitration proceeding if the parties have failed to designate the arbitrators – whether in their arbitration agreement (e.g. directly or by reference to institutional rules of arbitration or by providing for an alternative mechanism or authority to appoint the arbitrators) or thereafter.
New Zealand has adopted the default procedure from the UNCITRAL Model Law (see article 11 of Schedule 1 of the Act), by which an application can be made to the High Court if a party fails to appoint provided the agreement on appointment procedure does not provide other means for securing the appointment. However, legislation is presently under consideration which would allow the Minister of Justice to designate a suitably qualified body (most likely, AMINZ) in place of the High Court as the default appointing authority for all arbitrations seated in New Zealand.
In arbitrations to which Schedule 2 applies, a “quick-fire” procedure is provided instead by which one party can identify the default appointment and require the appointment of a nominated arbitrator within seven days (clause 1). If such appointment is not made by agreement within that time, it is made by operation of law. It has been confirmed that this procedure, where it applies, entirely replaces article 11 of Schedule 1, thus ousting court jurisdiction (Hitex Plastering Ltd v Santa Barbara Homes Ltd  3 NZLR 695 (HC)).
Parties are free to determine the composition of the arbitral tribunal and the appointment procedure. Absent such an agreement, the AA prescribes a default appointment mechanism:
- In respect of the number of arbitrators, three arbitrators will sit in an international arbitration whereas a domestic arbitration will be decided by a sole arbitrator (section 12, AA).
- Where the tribunal comprises three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator as the presiding arbitrator (section 13(3), AA). If a party fails to appoint an arbitrator within 30 days of the receipt of a written request to do so from the other party; or the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment or such other extended period agreed between the parties, either party may apply to the Director of the KLRCA for such appointment.
- In an arbitration with a sole arbitrator, should the parties fail to agree on the arbitrator, either party may apply to the Director of the KLRCA for the appointment of the arbitrator (section 13(5), AA).
- Upon a failure of the agreed appointment procedure, whereby a party fails to act as required under such procedure; the parties, or two arbitrators, are unable to reach an agreement under such procedure; or a third party, including an institution, fails to perform any function entrusted to it under such procedure, any party may request the Director of the KLRCA to make the appointment.
Absent agreement by the parties, the FAA allows courts to appoint arbitrators. Court involvement may be required, for example, where the parties’ agreement does not specify the manner in which arbitrators are to be appointed, or where the particular arbitrator or arbitration forum selected by the parties becomes unavailable.
If the number of arbitrators has not been determined by the parties, the FAA provides for the appointment of a single arbitrator.
Under Section 9A of the IAA, in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the parties shall by agreement appoint the third arbitrator. Where the parties fail to agree on the appointment of the third arbitrator within 30 days of the receipt of the first request by either party to do so, the appointment shall be made, upon the request of a party, by the appointing authority.
Yes, the requirements (rules) standards for the choice of an Arbitral Court are: 1) the parties may appoint one or more arbitrators, always in odd number, and they may appoint also their substitutes; 2) when the parties appoint arbitrators in even number, they are allowed to appoint immediately another arbitrator; if there isn’t agreement, the parties shall request the appointment of the arbitrator to the judicial organ that would be competent, originally, for the judgment of the cause, and applies, as appropriate, the procedure laid down in Article 7 of Law nº 9.307/96, which provides the procedure for transcription of the judicial compromissum in cases where there is an arbitration clause and there is resistance to the arbitration; 3) the parties may, by mutual agreement, establish the process for selection of arbitrators, or adopt the rules of an arbitral institution or specialized entity; 4) being nominated several arbitrators, these, by majority, shall elect the president of the arbitral court, and if there is no consensus, will be designated as president the oldest among the arbitrators; 5) the parties, by agreement, may waive the application of rule of regulation of arbitral institution body or specialized entity that limits the choice of sole arbitrator, co-arbitrator or president of the court to its list of arbitrators, authorizing the control of choice by competent bodies of the institution, and in cases of deadlock and multipart arbitration should be observed the applicable regulation; and 6) the arbitrator or the president of the Court shall appoint, if considered appropriate, a secretary, who may be one of the arbitrators.
If the agreement does not provide for the number of arbitrators in an international arbitration, the default number is three. The same is true of domestic arbitration in Quebec. In domestic arbitration in other provinces and territories, a single arbitrator is appointed by default.
The Panamanian Arbitration Law provides for a default procedure if the parties’ chosen method for selecting arbitrators fails.
The general rule for a three-member tribunal, is that each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator.
Moreover, if a party fails to appoint the arbitrator within thirty (30) working days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty (30) working days of their appointment, the appointment shall be made, upon request of a party, by a local or foreign arbitration institution.
The general rule for a three-member tribunal in case of multiple claimants or multiple defendants, is that the multiple claimants, jointly, and the multiple respondents, jointly, shall appoint an arbitrator, and the two (2) arbitrators thus appointed shall appoint the third arbitrator. If the multiple claimants or the multiple defendants fail to agree on the appointment of an arbitrator within thirty (30) working days of receipt of a request to do so from the other party, or if the two (2) arbitrators fail to agree on the third arbitrator within thirty (30) working days of their appointment, or if the parties do not agree on the method for the constitution of the arbitration tribunal, the appointment of all the members of the arbitration tribunal, including its president, shall be made, upon request of a party, by an arbitration institution.
The general rule for a sole arbitrator tribunal is that, if the parties are unable to agree on its appointment, said arbitrator shall be appointed, upon request of a party, by an arbitration institution.
If the Tribunal is deciding in law, at least one of the members of the Tribunal must be an expert in law (jurist) (art. 15.1 of the Arbitration Law).
Unless otherwise agreed by the parties, only the real persons can be appointed as the arbitrators. According to the Law no. 4686, unless the parties designate the number of arbitrators, the arbitral tribunal will compromise of the three arbitrators. If the sole arbitrator will be appointed and the parties cannot reach a compromise, the court will appoint the arbitrator upon the request of one party. If three (or more) arbitrators will be appointed, each party appoints the arbitrators on the same number and the appointed arbitrators choose the other arbitrator. Unless one of the parties appoint the arbitrators or the appointed arbitrators choose the other arbitrator (within one month, according to the Law no. 6100 and 30 days according to Law no. 4686), the court will appoint the missing arbitrators. According to the Law no. 6100, if there will be an arbitral tribunal, at least one arbitrator must be a legal expert who has five year experience at least, in his/her own area.
The decisions of the court regarding the appointment of the arbitrator(s) cannot be appealed. In case the parties are from different nations and the sole arbitrator will be appointed by the court, the court considers that the nation of the arbitrator will not be the same with one of the parties; and in case three arbitrators will be appointed, the court considers that the two of the arbitrators will not be the same nation with the one party. The procedure is the same for the appointment of the more arbitrators.
The parties are entitled to agree on their own procedure how the members of the arbitral tribunal shall be selected.
If the parties have not stipulated a procedure in their arbitration agreement or by selecting arbitration rules of an arbitration institution, the Tenth Book of the German Code of Civil Procedure provides rules for the number of arbitrators and the procedure for their appointment in sections 1034 and 1035 ZPO. If not agreed otherwise, three arbitrators shall be determined by the parties: Each party chooses one of the three arbitrators and both parties have to agree to determine the third arbitrator. In case the parties fail to agree on three arbitrators, they may apply to the competent court to appoint the arbitrators (section 1035 (3) ZPO). A party can also request the court to appoint the arbitrators if the other party did not comply with the procedure the parties agreed on (section 1035 (4) ZPO).
The parties are free to appoint the arbitrators and to decide whether there should be one or more arbitrator, but the number of arbitrators must, in any event, be odd. If the arbitration clause provides for an even number of arbitrators, an additional arbitrator will be appointed by the President of the Court where the arbitration proceeding has its seat, unless the parties agree otherwise. If the agreement does not specify the number of arbitrators and the parties cannot agree on this, the arbitral tribunal will be made up of 3 arbitrators. If one of the parties does not appoint its arbitrator, the arbitrator will be appointed by the President of the Court where the arbitration has its seat, unless otherwise agreed by the parties.
Yes, in the absence of agreement (sections 16 & 17). Where a sole arbitrator shall be appointed, this should be done jointly within 28 days of a party’s request to do so. Where a panel of 3 is required a party shall appoint one arbitrator within 14 days of a request to do so, the requesting party appointing the second and the 2 arbitrators appointing the third.
The parties are free to agree on a procedure to appoint an arbitrator or a tribunal of arbitrators. However, if the parties fail to agree, the default position (which is an amendment to Article 10 of the UNCITRAL Model Law) is that the arbitral tribunal shall consist of one arbitrator only.
Under the default rule, if a party fails to appoint an arbitrator within one month from receipt of the request from another party, or the appointed arbitrators fail to appoint a presiding arbitrator, or the parties fail to jointly appoint a sole arbitrator within one month, such arbitrator or arbitrators may be appointed by the court, upon motion of any of the parties. The same applies if under the arbitration agreement the arbitrator or arbitrators should be appointed by a third party and the third party fails to do so in time.
If the court is to appoint the presiding arbitrator or sole arbitrator in international arbitration, it should consider the need to appoint a person who is not connected with any of the jurisdictions of the parties.
Under the rules of the Court of Arbitration at the Polish Chamber of Commerce, it is the Arbitral Council of that institution, and not the court, that makes the appointment if a party fails to name an arbitrator or the arbitrators fail to agree on a presiding arbitrator. The appointment will be made from the institution’s list of arbitrators.