Are there any default requirements as to the selection of a tribunal?
International Arbitration (2nd Edition)
Accordingly to Article 10 of the International Commercial Arbitration Law No 19.971 (ICAL), parties may freely determine the number of arbitrators, and in case such agreement is not met, the arbitrators will be three.
Also, ICAL states that the parties are free to determine the arbitrators’ appointment procedure (Article 11(2)). If parties fail to determine such procedure, ICAL provides in Article 11(3) for the appointment procedure that shall apply. For further information regarding this matter, refer to Section 14 below.
Yes there are. Arbitral tribunals must necessarily be constituted by one arbitrator or by several, but always in an uneven number. If the parties have not agreed on the number of arbitrators, the tribunal shall be composed by three (art. 8 LAV).
If the arbitral tribunal is composed by one arbitrator the parties should agree on its designation. If it is composed by three or more arbitrators, each party should appoint an equal number of arbitrators and the appointed arbitrators should choose another arbitrator who will act as chairman of the tribunal (art. 10 (3) LAV).
Any person above the age of 18 who is capable of entering into an agreement, is not under the supervision of a legal administrator and has full voting rights may act as an arbitrator. The Law does not contain any requirements or limitations with regard to education, nationality, experience or residence.
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.
The selection of the tribunal is based on the principle of party autonomy. If the parties fail to agree on a selection process, the ZPO provides for the procedure for the appointment of arbitrators:
In arbitration proceedings in which three arbitrators are involved, each party appoints one arbitrator, and the two selected arbitrators together appoint the presiding arbitrator. In arbitration proceedings in which a sole arbitrator is to decide the dispute, and the parties fail to jointly appoint such arbitrator, the competent state court is to appoint him/her. The same applies if a the party-appointed arbitrators are unable to agree on the presiding arbitrator, or if a party does not appoint an arbitrator within the time period of one month after having received the corresponding notice from the other party (section 1035 (3) and (4) ZPO).
The Arbitration Act sets forth the default rules as to the selection of an arbitral tribunal and the ICAC Arbitration Rules correspond therewith. Thus, in case of default the parties shall jointly appoint the sole arbitrator within 30 days after receipt of a notice from the ICAC or, in an arbitration with three arbitrators, each party shall appoint one arbitrator, who, in turn appoint the presiding arbitrator within 30 days of their appointment. In case of any of the above default the President of the UCC appoints the arbitrator(s) from the Recommendatory List of the ICAC Arbitrators. In the case of a sole or third arbitrator, the President of the UCC shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties. There is no requirement to obtain a licence in order to practice as arbitrator in Ukraine.
The Panama 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.
There are no default requirements other than those set out at Article 206 of the UAE CPC.
The DIFC Arbitration Law (Article 17) provides for selection criteria where there is no agreement on the procedure for the appointment of arbitrators.
The DIAC Rules (Article 9) and the DIFC-LCIA Arbitration Rules (Article 5) require that arbitrators remain independent and impartial.
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, in absence of an agreement, is that the Board shall decide the number of arbitrators depending on the circumstances of the case. Under the previous SCC Rules, the default rule was three arbitrators.
Section 15.2 of the SAA provides for a default procedure in case the method agreed between the parties fails:
- in an arbitration with a sole arbitrator, an ordinary Court will appoint the arbitrator upon the request of any of the parties;
- if there are to be three arbitrators, each party shall nominate one arbitrator, and the two arbitrators thus appointed shall nominate the third arbitrator, who shall act as the chairman or president of the arbitration tribunal. If a party fails to nominate an arbitrator within 30 days of receipt of the demand to do so from the other party, the appointment of the arbitrator shall be made by the competent ordinary Court, upon request of any of the parties. The same procedure shall apply when the two arbitrators cannot reach an agreement on the third arbitrator within 30 days of the last acceptance of any of the two first appointed arbitrators;
- where there are multiple claimants or respondents, the former shall nominate one arbitrator and the latter another. If the claimants or the respondents do not agree on their nomination of the arbitrator, an ordinary Court will appoint all the arbitrators upon the request of any of the parties; and,
- in arbitrations with more than three arbitrators, the competent ordinary Court shall appoint all of them upon the request of any of the parties.
If the parties did not agree on the procedure for selection of a tribunal, Law on Arbitration provides the following procedure.
If a single arbitrator is to be appointed, the parties are supposed to jointly appoint the arbitrator within 30 days from the time one party invites the other party to jointly appoint the arbitrator. If the parties cannot agree on an arbitrator, the arbitrator shall be appointed by the appointing authority, and if there is no appointing authority, or it fails to appoint the arbitrator, the arbitrator shall be appointed by the court.
If the dispute is to be resolved by three arbitrators, each party is to appoint its arbitrator within 30 days from the day the other party has invited it to do so. If the party fails to appoint the arbitrator, arbitrator shall be appointed by the appointing authority (and, if there is no appointing authority or it fails to do appoint, by the court). The presiding arbitrator is appointed by the party-appointed arbitrators, within 30 days from their appointment. If the party-appointed arbitrators do not appoint the presiding arbitrator, the presiding arbitrator will be appointed by the appointing authority (and, if there is no appointing authority or it fails to do appoint, by the court).
Yes, there are default requirements to the selection of a tribunal. Any person appointed to serve as an arbitrator must be of legal age, in full enjoyment of his civil rights and know how to read and write.
There is no default requirement as to the selection of the tribunal. The selection of the tribunal in India is based on the party autonomy. However, if the parties fail to mutually agree on deciding the arbitrators then they may approach the court or the Institution for the appointment of the arbitrator(s).
The arbitration agreement must specify the rules for the appointment of arbitrators, including the number of arbitrators to form the arbitration tribunal. Arbitrators may be appointed by the parties from the list of arbitrators of the Arbitration Center or from out of that list. If there is no agreement between the parties on this matter, the Arbitration Center has the power to appoint the arbitrators by drawing. In this case, the arbitration tribunal will be formed by three principal arbitrators and one alternate arbitrator.
There are no default provisions in relation to the qualifications or characteristics of arbitrators. In ad hoc arbitrations the default procedures under the Arbitration Law are applied and if a party fails to nominate an arbitrator, or the party appointed arbitrators fail to appoint a chairperson, then the arbitrator in question is appointed through a court action.
As most arbitrations in Norway are ad hoc, the parties will normally agree on a panel of arbitrators. The panel will as a main rule consist of three arbitrators, and it is not uncommon that the parties reach agreement on all the arbitrators. The advantage of such procedure, is that the arbitration tribunal will have the necessary expertise. Alternatively, each of the parties may nominate one arbitrator, who then together appoint the third arbitrator.
Alternatively, the parties may agree on a neutral body to make default appointment.
Unless otherwise agreed by the parties, arbitral tribunal consists of three arbitrators in which case each party appoints one arbitrator and they party appointed arbitrators jointly appoint the presiding arbitrator. If arbitrators are not appointed in that manner, an appointing authority shall have that power. In cases where there is sole arbitrator and the parties fail to agree on the person of arbitrator, the appointing authority shall have the power to appoint him.
In the absence of a prior agreement by the parties, a default appointment procedure for international arbitrations is set out in section 11(3) of the ICA Law. This section provides that in an arbitration with three Arbitrators, each party shall appoint one Arbitrator, and the two Arbitrators who are appointed shall then appoint the third Arbitrator. If a party fails to appoint the Arbitrator within thirty days of the receipt of a request to do so from the other party, or in the event that the two Arbitrators fail to agree on the third Arbitrator within thirty days of their appointment, the appointment shall be made by the Court, upon the request of a party. Alternatively, in an arbitration with a sole Arbitrator, if the parties are unable to agree on the Arbitrator, the Arbitrator shall be appointed by the Court upon request of a party.
French law contains few default requirements that are applicable where the parties have not agreed otherwise. For example, Article 1452 CCP provides that, if the parties do not agree 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 CCP 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 default appointment procedure is provided by Articles 809 to 811 CCP. In particular: (i) the arbitral tribunal shall be composed of three individuals, (ii) each party to the dispute shall appoint one arbitrator, and (iii) the party-appointed arbitrators shall appoint the third arbitrator to act as president of the arbitral tribunal.
The law makes default provisions on the appointment of arbitrators. Under the ACA, where the parties cannot agree on the number of arbitrators, the default number will be three (section 6, ACA). The Lagos Law stipulates the default number of arbitrators to be one (section 7, Lagos Law).
If the parties fail to appoint a tribunal (and no institutional rules step in), the Austrian default solution is that the Austrian Supreme Court, upon request, appoints, as the case may be:
- an arbitrator that should have been appointed by one party within four weeks of receipt of the written request by the other party;
- the chairman of the tribunal absent agreement by the party appointed arbitrators on such person;
- a sole arbitrator where the parties could not agree on an appointment.
In so doing, the Supreme Court is to have regard to any qualifications required and to appoint independent and impartial arbitrators.
Where the parties fail to specify a method for appointing arbitrators, the institutional rules governing the arbitration typically provide for default appointments of one to three arbitrators depending on the complexity of the case. If the parties have not selected institutional rules, or if the process selected by the parties otherwise fails to result in appointment of an arbitrator, the FAA and most state arbitration laws permit the court to appoint an arbitrator. These laws, however, do not specify requirements for who may or may not be selected for a default appointment.
In domestic arbitration, the procedure applicable to the selection of the tribunal is designated by the parties either in the arbitration clause or by a subsequent agreement. Absent such agreement, the provisions of articles 872 et seq. GrCCP provide for default rules aiming to facilitate the constitution of the arbitral tribunal. Pursuant to these rules each party shall appoint one arbitrator and then the co-arbitrators thus appointed shall appoint the chairman of the arbitral tribunal. The law sets specific timeframes for each of the above appointments. In case a co-arbitrator and/or the chairman of the arbitral tribunal is not timely appointed the law provides for court intervention in order to facilitate the constitution of the arbitral tribunal.
In international commercial arbitral proceedings having their seat in Greece, articles 10 and 11 L. 2735/1999 apply absent an agreement by the parties controlling the selection of the arbitral tribunal. Said provisions incorporate verbatim the provisions of Model Law. Hence, in case the parties have not determined the number of arbitrators, the arbitrators pursuant to article 10 shall be three and are appointed pursuant to the procedure set forth in article 11 para. 4.
The parties are free to choose the arbitrator and to set the number of arbitrators – a sole arbitrator or several arbitrators. Normally a sole arbitrator is appointed. If an even number of arbitrators is appointed, then, in accordance with the addendum to the Arbitration Law, under the request of either of the arbitrators, an additional arbitrator will be appointed and join the tribunal or will be appointed as the deciding arbitrator instead of the tribunal.
The 1996 Act contains default provisions for the appointment of arbitrators, in the absence of agreement between the parties on the procedure for appointing arbitrators (sections 16 – 17), including time limits.
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.