Are there any default requirements as to the selection of a tribunal?
International Arbitration (3rd edition)
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.
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).
As stated above, the parties of the arbitration agreement may freely choose the number of arbitrator(s) and the method that is going to be used for that selection. In case the selected method of the parties for appointing the arbitrators fails, there are certain default procedures that take place as per Article11(3) of Law no 01/1987 .
The court is empowered to designate an arbitrator on application by the party concerned, in case the parties of the arbitral agreement do not concur in the appointment of the arbitrator if only one arbitrator is to be designated.
On the other hand, when the arbitration process should be carried by three arbitrators, each party may designate an arbitrator of his choice. Those two arbitrators will then have to choose the third arbitrator. In case of disagreement upon such appointment, the court will decide on that matter and designate the third arbitrator.
Cap 4 provides in section 6 for a default procedure which will be followed when the parties haven’t expressly chose for a different procedure.
Based on section 7 (1) of the Arbitration Act the arbitration agreement should determine the number of arbitrators and the arbitrators themselves or at least set a method to determine these facts. In case the arbitration agreement is silent in this respect, each party shall appoint one arbitrator and the appointed arbitrators then appoint a third presiding arbitrator (section 7 (2) of the Arbitration Act). Another condition is, that the final number of arbitrators must be odd.
If one of the parties fails to appoint an arbitrator or if the party-appointed arbitrators fail to appoint the presiding arbitrator within 30 days from receiving notice from the other party, a state court shall appoint the remaining arbitrator upon a motion submitted by either party or by any of the already appointed arbitrators, as stated in section 9 (1) of the Arbitration Act.
According to the Romanian CPC, the parties may appoint as an arbitrator any individual who has full legal capacity. The arbitration clause establishes whether there will be only one arbitrator or more arbitrators.
If there is no specific provision in the arbitration clause on the number of arbitrators and the parties do not agree otherwise, there will be three arbitrators, one appointed by each party, and the chair appointed by the two chosen arbitrators. Any provision in the arbitration clause allowing one party to appoint more arbitrators than the other party, is void of any effects.
When the parties fail to agree on the appointment of the sole arbitrator, or the two arbitrators cannot agree on the presiding arbitrator, the party seeking to commence arbitration proceedings may request the assistance of the domestic courts as regards the appointment of the sole arbitrator or chairman. An arbitrator must expressly accept the appointment.
Main requirement is that the dispute must be decided by an odd number of arbitrators.
Subsequently, Serbian Act on Arbitration contains provision that regulate appointment of arbitrators, should parties fail to reach an agreement on the issue.
If a dispute is to be resolved by a sole arbitrator, the parties shall agree on his appointment within 30 days of the day that one party requests the other to jointly appoint the arbitrator.
In default of such a provision, the appointment shall be made by the appointing authority, and if there is no appointing authority, or the appointing authority fails to appoint the arbitrator, the appointment shall be made by the competent court.
If the dispute is to be resolved by three arbitrators, each party shall appoint one arbitrator within 30 days from the day the other party has invited it to do so. If the requested party fails to appoint the arbitrator, arbitrator shall be appointed by the appointing authority designated by the parties and, if there is no appointing authority, or it fails to do so, appointment shall be made by the competent court.
The chairman of the tribunal shall be appointed by the party-appointed arbitrators within 30 days from their appointment. If the party-appointed arbitrators fail to appoint the presiding arbitrator, the presiding arbitrator shall be appointed by the appointing authority (and, if there is no appointing authority or it fails to do appoint, by the competent court).
Under Article 32 of the Arbitration Law, if the parties fail, within the time limit prescribed by the Arbitration Rules, to agree on the method of constitution of the arbitral tribunal or appointment of arbitrators, the arbitrators shall be appointed by the chairman of the arbitration commission.
As to the default number of arbitrators forming a tribunal, the Arbitration Law has no express provision on this matter. However, it has been touched upon by institutional rules. For example, the CIETAC Rules provide that in the absence of agreement between the parties, the default number is three.
a. Unless agreed otherwise by the parties, the tribunal will consist of three arbitrators. The parties can also agree upon how the arbitrators are appointed. If no such agreement has been made, each party must appoint one arbitrator. These arbitrators shall then appoint a third arbitrator, who shall be president of the Arbitrator Tribunal.
If a court is to appoint an arbitrator, it takes into consideration the qualifications which the arbitrator should possess in accordance with the parties’ agreement, as well as other circumstances assuring appointment of an independent and impartial person to serve as an arbitrator. Moreover, if the court is to appoint a sole arbitrator or a presiding arbitrator in international arbitration, it should consider the need to appoint a person who is not connected with either of the countries that the parties come from.
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 is made from the institution’s list of arbitrators.
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.
There are no default requirements other than those set out at Article 10 of the UAE Arbitration Law. The parties are further free to choose any additional criteria, over and above, that set out in Article 10.
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 1996 Act contains default provisions for the appointment of arbitrators, in the absence of agreement between the parties on the procedure for appointing arbitrators ( ss 16 – 17 of the 1996 Act), including time limits.
Article 15 of the Law of Arbitration sets out the guidelines for selecting an arbitral tribunal. In essence, the two parties to the arbitration shall appoint the arbitrators.
Should the parties fail to reach an agreement, and the tribunal is composed of one arbitrator, then the competent court shall appoint the arbitrator. If the tribunal is composed of three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third, presiding arbitrator. If a party fails to appoint his arbitrator or if the two appointed arbitrators fail to agree on appointment of the third, the competent court shall appoint this third arbitrator.
Under the FAA, if the parties fail to agree on a method of selecting the arbitrators (either expressly or by agreeing on institutional rules that provide for a default method), the court may, upon application of either party, designate an arbitrator. 9 U.S.C. § 5. In such a case, a single arbitrator will be selected unless the agreement provides otherwise.
Austrian law provides for a default procedure if the parties have failed to agree on a method for selecting arbitrators or if the chosen selection procedure fails. However, in most cases, the parties will have chosen a set of rules that deals with this issue.
The default provision foresees a procedure for the appointment of a sole arbitrator (by agreement of the parties) or an arbitral tribunal (with each party appointing one arbitrator and the two party-appointed arbitrators appointing the chairman). If a party fails to appoint an arbitrator, or if no agreement can be found regarding the appointment of a sole arbitrator or the chairman of the arbitral tribunal, the parties may apply to the state courts for a default appointment.
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).
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).
In the absence of the parties’ agreement as to the number of arbitrators, a three-member tribunal shall be constituted. Further, failing the agreement of the parties on a procedure for appointment of a tribunal, each party appoints an arbitrator; two arbitrators so appointed select the third arbitrator. Should any of the parties fail to select an arbitrator within the period of thirty days after it receives a request to that end from the other party, or should the two arbitrators fail to reach an agreement as to the person of the third arbitrator, they shall be appointed — at the request of either party — by the competent court. In case, parties have not agreed on the sole arbitrator, the competent court shall likewise act as an appointing authority.
There are no default requirements as regards selection. The parties are free to agree the procedure to be followed for the appointment of the arbitral tribunal. In this regard, Article 11 of the Model Law applies. Unless agreed, the default number of arbitrators is one [Section 13 of the Arbitration Act, 2010] .
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.
The procedure for the appointment of the tribunal is subject to party autonomy, section 1035 (1) ZPO. However, the ZPO provides for a default procedure if the parties fail to agree on a procedure regarding the composition of the tribunal.
Sole arbitrator: In arbitration proceedings with a sole arbitrator the parties shall agree on such arbitrator. If the parties fail to do so, the competent Higher Regional Court (Oberlandesgericht, "OLG", section 1062 ZPO) will appoint the arbitrator on the application of one of the parties.
Three arbitrators: In arbitration proceedings with three arbitrators each party shall select one arbitrator. The two selected arbitrators select the chairman. If one of the parties fails to select an arbitrator within one month after receiving the adverse party's notice, or if the arbitrators fail to agree on the chairman within one month of their appointment, the arbitrator or the chairman will be appointed by the competent OLG on the application of one of the parties (section 1035 (3) sentences 2 and 3 ZPO).
Unless otherwise agreed by the parties, the arbitral tribunal consists of three arbitrators in which case each party appoints one arbitrator and the party appointed arbitrators jointly appoint the presiding arbitrator. If the arbitrators are not appointed in that manner, an appointing authority shall have that power. In cases where there is a sole arbitrator and the parties fail to agree on the arbitrator, the appointing authority shall have the power to appoint the sole arbitrator.
Accordingly to Article 10 of the ICAL, parties may freely determine the number of arbitrators, and in case such agreement is not met, the arbitrators will be three.
Also, the ICAL states that the parties are free to determine the arbitrators’ appointment procedure (Article 11(2)). If parties fail to determine such procedure, the ICAL provides in Article 11(3) for the appointment procedure that shall apply. For further information regarding this matter, refer to Section 14 below.
Under the UNCITRAL Model Law, the parties can agree on the number of arbitrators. In the absence of an agreement, the default number of arbitrators shall be three (3).
The parties can likewise agree on the procedure for appointing the arbitrator(s). In the absence of an agreement, the following rules shall be observed: a.) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty 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 days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6; or b.) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in Article 6.