Can the appointment of an arbitrator be challenged? What are the grounds for such challenge? What is the procedure for such challenge?

International Arbitration (4th edition)

Argentina Small Flag Argentina

De iure arbitrators may be challenged for the same reasons for which judges may be recused in accordance with the law of the seat of the arbitration (Art. 1663 NCCC and Art. 746 CP). In Argentina, such reasons include (Art. 17 CP): (i) having a close family relationship with one of the parties or its lawyer; (ii) having an interest in the dispute or participating in a business enterprise with one of the parties or any of its lawyers, unless the enterprise is a limited liability company; (iii) if they are a creditor or debtor of either party; (iv) if they are engaged, in whatever manner, in a court action involving either party; (v) having acted as attorney for or against any of the parties, or having defended or pleaded against any of them or given an opinion or issued recommendations on the dispute submitted to arbitration before or after its commencement; (vi) having received any important benefits from any of the parties; (vii) having a friendly relationship with any of the parties denoting great familiarity or frequent contact; (viii) when the challenged arbitrator feels enmity, hatred or resentment against a party as evidenced through known facts, but not if such enmity, hatred or resentment is based on attacks against or offenses aimed at the arbitrator after arbitral proceedings have commenced.

According to the CP rules, any challenge shall be submitted to the arbitral tribunal within five working days either of the arbitrator’s appointment (if he has been nominated by the court and the challenge is based on grounds arising before his appointment) or of the circumstances giving rise to the challenge becoming known to the challenging party (Art. 747 CP).

Based on the party’s submission, the challenged arbitrator shall determine whether or not he accepts the grounds for challenge. If he does not accept the challenge, Art. 1663 of the NCCC provides that the challenge shall be decided by the institution that administers the arbitration or, in the absence thereof, by a judicial court. The parties are free to agree that the challenge shall be decided by the remaining unchallenged arbitrators.

If the matter is to be referred to a judicial court, the court’s decision on the challenge shall state its reasons, be in writing and is not subject to any further remedy or appeal.

For international commercial arbitrations, Art. 28 of the LICA, following the Model Law, reproduces the general principle according to which an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties.

Departing from the Model Law, Art. 28 of the LICA includes as a specific ground for challenging an arbitrator, which is the intervention of the arbitrator or members of the legal firm, consultant or equivalent organization to which the arbitrator may belong, in another arbitration or judicial process: (a) as counsel or representative of one of the parties, irrespective of the subject matter at issue, or (b) concerning the same subject matter, as counsel or representative of a third party.

Finally, the LICA (Arts. 29-31) reproduces the procedure adopted in the Model Law.

Austria Small Flag Austria

The Austrian Code of Civil Procedure and the Vienna Rules provide that arbitrators may only be challenged based on justifiable doubts as to their impartiality and independence or on the ground that the arbitrator does not fulfil the requirements of the agreement of the parties.

Austrian law provides for a default procedure if the parties have failed to determine a challenge procedure by agreement: A party shall first submit a written statement of the reasons for the challenge to the arbitral tribunal. This gives the challenged arbitrator the opportunity to resign from office or the other party may agree to the removal of the challenged arbitrator. If the challenged arbitrator does not resign or is not removed upon mutual agreement of the parties, the sole arbitrator respectively the arbitral tribunal shall decide on the challenge. If the challenge before the sole arbitrator respectively the arbitral tribunal is unsuccessful, the challenging party may apply to the Austrian Supreme Court as first and last instance to decide on the challenge.

Bulgaria Small Flag Bulgaria

The appointment of an arbitrator may be challenged on grounds of Art.14, para.1 ICCA only if there are circumstances that give rise to reasonable doubts as to the arbitrator’s impartiality or independence, or if he does not possess the necessary qualification agreed by the parties. A party may dismiss an arbitrator appointed by it or in whose appointment it has participated only on grounds that became known to it after the appointment.

The parties may agree on the procedure for challenge of an arbitrator, but they cannot exclude the application of Art.16 ICCA. In the absence of an agreement, an arbitrator's challenge may be made no later than 15 days after the party became aware of the formation of the arbitral tribunal or after having learned of the circumstances giving rise to the challenge. The request for challenge shall be made in writing to the arbitral tribunal, stating the reasons for it. The arbitral tribunal shall rule on the challenge unless the arbitrator decides to withdraw from his function or the other party agrees to the challenge.

If the challenge of an arbitrator by a party is rejected by the arbitral tribunal, the party who initiated it may request, within seven days upon receiving the notification about the decision, the Sofia City Court to decide on the challenge. The court considers the petition in compliance with the CPC rules in respect of appeal of rulings. The applicability of the rule providing for a court review of the tribunal’s decision on the challenge of an arbitrator may not be derogated by the parties.

The number of decisions on the Sofia City court on challenge proceedings does not show substantial increase of the number of challenge. On the contrary, the figures remain quite low:

  • For 2019 – 8 decisions;
  • For 2018 – 8 decisions;
  • For 2017 – 12 decisions;
  • For 2016 – 8 decisions.

United States Small Flag United States

The FAA is silent on challenges to the appointment of arbitrators. Although the Supreme Court has not weighed in, a number of federal appellate courts have precluded any mid-arbitration intervention, including for arbitrator challenges. See In re Sussex, 781 F.3d 1065, 1073 (9th Cir. 2015) (finding that the district court’s ruling was clearly erroneous as to the legal standard for “evident partiality” and the nature of the equitable concerns sufficient to justify a mid-arbitration intervention and compiling cases). However, some state courts have allowed mid-arbitration intervention where the FAA does not govern. See Metro. Dist. Comm’n v. Connecticut Res. Recovery Auth., 130 Conn. App. 132, 144 (2011) (disqualifying an arbitrator).

Some institutional rules do provide grounds for such a challenge. For example, under the UNCITRAL Arbitration Rules, a party may challenge an arbitrator’s appointment if there are “justifiable doubts as to the arbitrator’s impartiality or independence” and only “for reasons of which [the party] becomes aware after the appointment has been made.” See UNCITRAL Arbitration Rules arts. 11–13. The challenging party must send notice of the challenge within a certain time period and communicate it to the other parties and the entire tribunal. If all parties do not agree to the challenge, or the challenged arbitrator does not withdraw, then the challenging party can ask the appointing authority to rule on the challenge.

Canada Small Flag Canada

The appointment of an arbitrator can be challenged across the provinces. The parties are free to agree on a procedure for challenging an arbitrator. If they have not reached an agreement on these terms, then a party wishing to challenge the appointment must follow the procedure in the governing legislation or institutional rules, if applicable.

All the acts provide for a party to challenge the appointment of an arbitrator for two reasons:

1. Circumstances exist that may give rise to a reasonable apprehension of bias.
2. The arbitrator does not possess qualifications that the parties have agreed are necessary.

Typically, the party seeking to challenge an arbitrator sends a written statement of the reasons for the challenge
to the arbitral tribunal within 15 days of becoming aware of those reasons. Unless the arbitrator withdraws or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. A party who has appointed an arbitrator may only challenge that arbitrator on grounds of which the party was unaware at the time of the appointment. Once the tribunal has made a decision on the challenge, that decision can be reviewed by the courts. In British Columbia, a court would hear the challenge directly instead of the tribunal at first instance. In Alberta, there is a further review available to the court of appeal of the lower court’s decision.

Cyprus Small Flag Cyprus

(a)The Court may remove an arbitrator(s) following request by any of the parties to the arbitration and appoint any person(s) to act as arbitrator(s) in their place.

(b) There are various grounds all stipulated in the laws of Cyprus. Misconduct is a popular ground, bias is another. Also, questioning of the arbitrator’s qualifications especially in cases of purely technical disputes.

(c) The Law provides that the parties to the agreement shall be free to agree on the procedure for challenging the appointment of an arbitrator and if no such procedure is agreed, a party shall within fifteen days challenge the arbitrator to the Arbitral Tribunal if he becomes aware of any justifiable doubts of the arbitrator’s impartiality, independence or disqualification. The proposal for exclusion is submitted to the Court with reasons for the exclusion and the Court will thereafter decide on this matter unless the arbitrator who is proposed to be excluded resigns from his position or the other party agrees to the challenge.

Czech Republic Small Flag Czech Republic

As stated in the previous point, a court may challenge the appointment of an arbitrator if there is reason to doubt his or her impartiality.

Moreover, where an arbitrator has participated in the arbitration proceedings despite not having been competent to do so, this will constitute grounds for the repeal of the arbitration award by the court.

The permanent arbitration tribunals also adopt their own additional rules for challenging arbitrator appointments. For instance, the Arbitration Court attached to the Economic Chamber of the Czech Republic and the Agricultural Chamber of the Czech Republic outlines a procedure whereby the other arbitrators in the tribunal decide on the impartiality or otherwise of the contested arbitrator.

UAE Small Flag UAE

UAE- Federal Jurisdiction

Article 15 of the UAE Arbitration Law and the DIAC Rules (Article 13) both provide for the challenging of an arbitrator’s position.

Article 14 of the UAE Arbitration Law provides that an arbitrator may be recused, ‘in circumstances which are likely to give rise to serious doubts regarding his impartibility or independence’.

Article 15 of the UAE Arbitration Law requires that a party intending to recuse an arbitrator must write to the Arbitral Tribunal within 15 days of becoming aware of:

‘the arbitrator’s appointment’ (Article 15(1)); or

the grounds for the recusing the arbitrator (Article 15(1)).

This written statement should set out the grounds for the arbitrator’s recusal.

Should the arbitrator not recuse himself / herself or the other party ‘does not approve the recusal within 15 days from the date of notification’, the challenging party may file its application with the [arbitration authority or court] within 15 days of the expiry of the above 15 day period.

The [arbitration authority or court] shall subsequently make its decision as to whether to recuse the arbitrator within 10 days.

This provision may be particularly helpful in ad hoc arbitrations and could be viewed as even more detailed and thorough than the equivalent process set out in some arbitral rules of institutional arbitration proceedings.

Where the relevant grounds exist, this process can be used to remove both arbitrator and chairman alike from their position on the Arbitral Tribunal.

UAE - Common Law Jurisdictions
The appointment of an arbitrator can be challenged pursuant to DIFC Arbitration Law (Article 18) on the grounds he / she is not independent, impartial or does not possess the qualifications agreed upon by the parties.

A party challenging the arbitrator’s position, must write to the LCIA Court, Arbitral Tribunal and all other parties within 14 days of the formation of the Arbitral Tribunal or becoming aware of the grounds for removal of the arbitrator. Should all other parties agree with the challenge brought, the arbitrator’s appointment shall be revoked by the LCIA Court.

If the arbitrator does not resign or the parties do not agree to the removal of the arbitrator, the LCIA Court shall issue its decision upon the challenge as set out in Article 10 of the DIFC-LCIA Arbitration Rules.

ADGM
Challenging an Arbitrator where no Procedure was agreed by the Parties
Where the parties have not agreed on a procedure for challenging an arbitrator, the ADGM Regulations provide the below.

A party wanting to challenge an arbitrator must send a written statement to the Arbitral Tribunal setting out its reasons, within 30 days of becoming aware of:
‘the constitution of the arbitral tribunal’’ or;

the existence of grounds on which to challenge the arbitrator (Regulation 20(2)).
The grounds for challenging an arbitrator are as followings:
‘circumstances likely to give rise to justifiable doubts as to his [the arbitrator’s] impartiality or independence’; or

he/she does not possess the qualifications agreed upon by the parties (Regulation 19).
The arbitration institution administering the arbitration or the Court (where there is no arbitral institution appointed) shall decide on the challenge to the arbitrator, unless the arbitrator withdraws, or the other party agrees to the challenge (Regulation 20(2)).
The arbitration shall, however, not be stayed pending the decision of the arbitral institution or the Court (Regulation 20(2)).

Failure or Impossibility to Act
‘If an arbitrator becomes as a matter of law or fact unable to perform his function or for other reasons fails to act without undue delay’, his mandate will be termination upon:

his ‘withdraw from his office’; or
the parties’ termination of that arbitrator (Regulation 21).

Should the arbitrator not withdraw, or the parties cannot agree on his/her termination, or the ‘controversy remains concerning any of these grounds’, a party may request that the arbitral institution administering the arbitration or the Court (where no arbitral institution has been appointed) to terminate the mandate of the arbitrator.

This decision of the arbitral institution or the Court is not subject to appeal.

United Kingdom Small Flag United Kingdom

Pursuant to s.24 of the 1996 Act, any party may apply to the court (under Part 62 of the Civil Procedure Rules) to remove an arbitrator where (a) circumstances exist that give rise to justifiable doubts as to his impartiality, (b) the arbitrator lacks the requisite qualifications or capacity or (c) the arbitrator refuses or fails to properly conduct proceedings or make an award. Where another entity (whether the tribunal itself or the institution administering the arbitration) is vested with the power to effect such removal, the complaining party is required to first exhaust that avenue before approaching the court (section 24(2), 1996 Act).

Singapore Small Flag Singapore

Yes. The grounds for challenge of an arbitrator in Singapore are outlined at Art. 12(2) of the UNCITRAL Model Law, which provides that ‘[a]n arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties’. Importantly, Art. 12(2) also provides that ‘[a] party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made’.

Art. 13(1) of the UNCITRAL Model Law allows parties to agree on a procedure for challenging arbitrators. In the event that no procedure for arbitrator challenge has been agreed by the parties, however, Art. 13(2) provides that a party, within 15 days of becoming aware of the constitution of the tribunal or of the relevant circumstance under Art. 12(2), shall send a written statement of the reasons for the challenge to the arbitral tribunal. In such a case, the arbitral tribunal shall then decide the challenge unless the challenged arbitrator withdraws or the non-challenging party agrees with the challenge.

In the event that a party is unsuccessful in challenging an arbitrator either under rules agreed by the parties or where no such rules have been agreed (as discussed above), Art. 13(3) provides that the unsuccessfully challenging party ‘may request, within thirty days after having received notice of the decision rejecting the challenge, the [High Court in Singapore] to decide on the challenge, which decision shall be subject to no appeal’. Art. 13(3) also states that, ‘while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award’.

South Korea Small Flag South Korea

The appointment of an arbitrator may be challenged where (i) there is any circumstance likely to give rise to justifiable doubts as to the arbitrator’s impartiality or independence; or (ii) the arbitrator does not possess qualifications agreed to by the parties (Article 13 of the Arbitration Act (the “Act”)).

Parties are free to agree on a procedure for challenging the appointment of an arbitrator. In the absence of an agreement, a party wishing to challenge an appointment must submit to the arbitral tribunal a written statement of objection within 15 days after becoming aware of the constitution or any disqualifying circumstances (Article 14(2) of the Act).

If the arbitral tribunal rejects the challenge, the challenging party may, within 30 days after receiving notice of the decision, request a court to review the challenge and make a final decision (Article 14(3)).

Germany Small Flag Germany

The appointment of an arbitrator can be challenged. The parties are free to agree on a l challenge procedure (section 1037 ZPO).

Absent such agreement, section 1037 (2) ZPO provides for a default statutory challenge procedure. In this case the challenging party must file a written statement specifying the reasons for the challenge within two weeks after the constitution of the arbitral tribunal or after obtaining knowledge of any reasons which give rise to doubts about the impartiality and independence of the arbitrators.

If this challenge is unsuccessful, the party can, within one month after receiving notice of the arbitral tribunal's decision rejecting the challenge, request from the competent state court to decide on the challenge (section 1037 (3) ZPO). Should the party fail to file such a request with the competent state court, it will be barred from raising objections to the impartiality or independence of the arbitrator during the enforcement proceedings.

The arbitral tribunal, including the challenged arbitrator, may continue with the arbitral proceedings and issue an arbitral award while the challenge request is pending in the court. Should the arbitral award already be valid, and the state court subsequently consider the challenge request as founded, the arbitral award becomes void due to section 1059 (2) no. 1. lit. d. and no. 2. lit. b. ZPO.

India Small Flag India

If a respondent fails to participate in arbitration without sufficient cause, the tribunal may proceed ex parte or adjourn the proceedings. If the respondent fails to communicate its statement of defence, the tribunal may treat the respondent’s right as being forfeited or continue the proceedings without considering such failure to be an admission of the claimant’s allegations.

While arbitrators cannot compel third parties to appear before them, the tribunal or a party, with the tribunal’s approval, may apply to the court for assistance in taking evidence. The court may make an order requiring third parties to provide evidence directly to the tribunal. If a person fails to attend in accordance with such order of the court, it is subject to the same penalties and punishments as it may have incurred during court proceedings.

Indonesia Small Flag Indonesia

The Arbitration Law provides for a mechanism where a challenge on an arbitrator can be raised if there are sufficient grounds and authentic evidence to question the arbitrator’s independence and impartiality. Unlike common law jurisdictions, which have a clearer threshold to test independence and impartiality, in Indonesia, independence is often simply associated with whether or not the arbitrator has a family, financial or employment relationship with any of the parties or their legal counsel.

Any challenge against the appointment of an arbitrator should be raised (a) within 14 days after the appointment or (b) within 14 days after the basis for the challenge becomes known to the party making the challenge.

The challenge should be made in writing and delivered to the relevant arbitrator and the other party. If the other party accepts the challenge, the arbitrator should resign and another arbitrator appointed in their place. If the parties cannot agree on the challenge, and the arbitrator refuses to resign, the challenging party may file an application with the district court to remove the arbitrator.

Liechtenstein Small Flag Liechtenstein

A person willing to act as an arbitrator has to disclose all factual circumstances which may create doubts as to such person’s independence and impartiality or which are not in line with the parties’ agreed criteria. Active judges of ordinary courts may not accept an appointment to act as an arbitrator (see § 605 Liechtenstein CCP).

The appointment of an arbitrator may only be challenged, if circumstances occur which raise justified doubts as to the independence and impartiality of such arbitrator or if he or she does not fulfill the criteria agreed upon by the parties.

In the absence of an agreement between the parties on the procedure for the challenge of an arbitrator’s appointment, the party wishing to challenge his or her appointment has to notify the arbitral tribunal of the reasons for such challenge within four weeks from the date on which it was notified of the composition of the arbitral tribunal or of the reasons for a challenge. If the arbitrator whose appointment is challenged does not resign or if the other party does not agree with such arbitrator’s resignation, the arbitral tribunal (including the challenged arbitrator) decides on the challenge.

If the challenge is unsuccessful, the challenging party may ask the court to take a decision on the challenge. The subsequent decision of the court is not subject to any appeal.

Article 11 of the Liechtenstein Rules contains supplementary provisions on the challenge of arbitrators.

Malaysia Small Flag Malaysia

Section 14(3) of the Arbitration Act provides that an arbitrator may only be challenged where there are circumstances that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or where the arbitrator does not possess qualifications agreed to by parties.

Section 15 of the Arbitration Act outlines the procedure for challenging an arbitrator’s appointment. A challenge may be initiated within 15 days after becoming aware of the constitution of the tribunal, or of any reasons referred to in Section 14(3), by sending a written statement of the reasons for the challenge to the tribunal.

If the challenge is unsuccessful, the challenging party may, within 30 days after having received notice of the decision rejecting the challenge, apply to the court to make a decision on the challenge.

Mexico Small Flag Mexico

According to article 1428 of the Commerce Code, an arbitrator may be challenged only if there are circumstances that reasonably justify the existence of doubts regarding their impartiality or independence, or if they do not possess the qualities previously agreed upon by the parties.

Nigeria Small Flag Nigeria

The appointment of an arbitrator can be challenged if circumstances exist that raise justifiable doubts as to his/her impartiality or independence; or that he/she does not possess the qualifications agreed by the parties. See section 8 of the ACA. The parties are at liberty to determine the procedure to be followed in challenging the appointment of an arbitrator. Under the ACA, where no such procedure was agreed, the party intending to challenge the arbitrator must forward a written statement of the reasons for the challenge to the arbitral tribunal within 15 days of becoming aware of the constitution of the arbitral tribunal or the circumstances for the challenge.

Unless the arbitrator whose appointment has been challenged withdraws or the other party agrees to the challenge, the arbitral tribunal will decide on the challenge. See section 9 of the ACA. Under the Lagos Law, the arbitral tribunal or the appointing authority (if there is one) will determine the challenge. There has been a rise in number of challenges to the appointments of arbitrators of late but such challenges are largely unreported. Nigeria does not have comprehensive reporting of appellate cases, and cases in the trial court are rarely reported at all. There is increasing awareness of the importance of arbitration and the need for expediency in the process.

Norway Small Flag Norway

The appointment of an arbitrator can be challenged, provided that there are circumstances that question his or her impartiality, independence or qualifications. In practice, the latter requires that the arbitration agreement has identified specific qualifications for arbitrators. However, if the arbitrator's qualifications are evidently inadequate, the appointment can be challenged even if the parties have not agreed on specific qualification requirements. A party cannot use circumstances that are already familiar to the party in order to challenge an appointment, provided that the party contributed to the appointment.

Unless agreed otherwise, a party which objects must submit a written reasoned challenge before the tribunal within 15 days of the party becoming aware of the relevant circumstances. The tribunal will reach a decision on the objection unless the arbitrator withdraws from his or her assignment or the other party agrees with the objection. The tribunal’s decision can be appealed to the ordinary courts within one month from the decision is received by the parties. The ordinary court's decision cannot be appealed. Further, the same objection cannot be used as an invalidating factor or obstacle against recognition and enforcement of the award.

Save for any agreement to the contrary, new arbitrators will be appointed pursuant to the same appointment procedure.

We note that any objection to jurisdiction must be raised no later than in the party's statement of defence, which implies that the party's participation in the appointment of arbitrators does not prevent it from making a jurisdictional objection. However, if the party's delay is justifiable (eg, the objection was raised immediately after it became aware of the situation), the tribunal may accept the objection even though it is overdue.

If an arbitrator becomes de jure or de facto unable to perform his or her functions, or for other reasons fails to act without undue delay, his or her assignment will be terminated if:

  • he or she withdraws from the assignment;
  • the parties agree on termination; or
  • on the request of one of the parties, the ordinary court rules that he or she should be terminated (court decisions cannot be appealed).

Save for any agreement to the contrary, new arbitrators will be appointed pursuant to the same appointment procedure.

Philippines Small Flag Philippines

Yes. For both international or domestic arbitration, the appointment of an arbitrator can be challenged if circumstances exist which give rise to justifiable doubts as to his or her impartiality or independence, or if he or she does not possess qualifications agreed upon by the parties. (Art. 4.12 and 5.11, IRR). In domestic arbitration, an arbitrator may also be challenged as well if he or she refuses to respond to questions by a party regarding the nature and extent of his professional dealings with a party or counsel. (Art. 5.11, ADR Act)

Parties are free to agree on the procedure to challenge the appointment of arbitrators. In the absence of any such agreement, a party may challenge an arbitrator by filing a written statement within fifteen (15) days from knowledge of the constitution of the arbitral tribunal or the circumstance which gives rise to grounds to challenge the appointment. Unless the challenged arbitrator withdraws from his or her office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. In case of an unsuccessful challenge, the challenging party may file a request with the appointing authority within thirty (30) days. (Art. 4.13 and 5.13, IRR)

Saudi Arabia Small Flag Saudi Arabia

The Arbitration Law provides that arbitrators may not be dismissed or challenged unless their neutrality or independence is seriously questioned, or if they do not possess the qualifications agreed by the parties to arbitration. No party may demand dismissing the arbitrator they appointed or participated in their appointment unless for reasons that became known after the appointment of such arbitrator.

If arbitrators are not able to perform their duties, or did not commence them, or discontinued them, leading to unjustifiable delay in the arbitration proceedings, and they did not remove themselves from their position, or if the two parties did not agree on their removal, the competent court, in an ad hoc arbitration, may dismiss them upon the request of any party, by a non-appealable decision.

In an arbitration administered by the SCCA, the administrator would resolve any disputes over the appointment of an arbitrator, without the Court’s intervention.

France Small Flag France

It is the arbitrator’s duty to inform the parties of any circumstances that could affect his independence or impartiality; if he fails to do so, the parties can challenge his appointment (Article 1456 CPP). In addition, the arbitrator can be removed by unanimous consent of the parties (Article 1458 CCP). If the parties to the arbitration do not unanimously consent to an arbitrator’s removal, it will be up to the administering institution or to the juge d’appui to decide whether the arbitrator should be removed. The time limit to file an application before the juge d’appui is one month following the disclosure or the discovery of the fact at issue. Those provisions apply both to domestic and international arbitration proceedings.

As a rule, the arbitrator must perform his mandate until the end of it, i.e. from his appointment until the final award has been rendered, unless he justifies an impediment or a legitimate cause of abstention or resignation (FCCP Article 1457).

Egypt Small Flag Egypt

Yes, the appointment of arbitrators can be challenged. The EAL provides that an arbitrator may only be challenged if there exist circumstances that give rise to serious and justifiable doubts as to his or her impartiality or independence. (article 18)

According to the EAL, the party requesting to challenge an arbitrator shall submit to the arbitral tribunal a challenge request, incorporating the reasons for such challenge, within 15 days from the date it becomes aware of the constitution of the arbitral tribunal or of the circumstances justifying such challenge. If the challenged arbitrator does not withdraw from his or her office within 15 days from the date of submitting the challenge request, the request shall be forwarded to the Egyptian competent court to decide on this matter and render a final decision that will be subject to no appeal. Moreover, a party may not challenge the same arbitrator more than once in the same proceedings. (article 19)

In case of institutional arbitration the applicable rules would include specific provisions on the regulation of challenges. For example, the current rules and practice of CRCICA is that any challenges must be submitted within 15 days after it has been notified of the appointment of the challenged arbitrator, or within 15 days from the date of knowledge of the circumstances giving rise to justifiable doubts as to an arbitrator’s impartiality and independence. If the challenged arbitrator does not resign, the challenge shall be decided by an ad hoc legal committee of three members selected from among the members of the CRCICA’s Advisory Committee.

Ecuador Small Flag Ecuador

According with Art. 21 of the LAM, arbitrators can challenge themselves. The grounds for challenge an arbitrator are the same stated in the COGEP for the judges. Art. 22 of the COGEP provides the following grounds for challenge:

1. To be a party in the process;

2. To be spouse or have a common-law partner with one of the parties or their defenders;

3. To be a relative up to the fourth degree of consanguinity or second of affinity of any of the parties, their legal representative, agent, attorney, defender, or of the judge who issued the challenged ruling;

4. To have ruled in another instance in the same process the issue or another related with it;

5. Unreasonably delay the dispatch of matters submitted to its jurisdiction. If it is the ruling of the matter, the provisions of the Organic Code of the Judicial Function will be followed.

6. Having been a legal representative, agent, attorney, defender, agent of one of the parties in the process currently submitted to its knowledge or intervened as a mediator.

7. To have expressed opinion or advice that is demonstrable, about the process that comes to it knowledge.

8. To have, or had have, he, his spouse, his common-law partner or any of his relatives until the fourth degree of consanguinity or second of affinity a process with any of the parties; when the process has been initiated by one of the parties, it must have been before the instance in which the challenge is attempted.

9. To have received rights, contributions, goods or services from one of the parties;

10. To have any pending obligations with any of the parties or their defenders;

11. To have with one of the parties or their defenders, intimate friendship or manifest enmity;

12. To have a personal interest in the process because it is their business or their spouse or common-law partner, or their relatives within the fourth degree of consanguinity or second of affinity.

The LAM does not provide for a specific procedure for the challenge, so it is understood that it is governed by the rules of the arbitration center chosen by the parties. What the LAM does provide are the persons who have to resolve the challenge. Art. 21 of the LAM provides that the challenge must be resolved:

a) In the case of a tribunal, it must be resolved by the arbitrators not challenged. If they disagree, the challenge must be resolved by the director of the center;

b) In the case the challenge lies on the tribunal, it must be resolved by the director of the center;

c) In the case of a sole arbitrator, it must be resolved by the director of the center;

d) In the case of an independent tribunal, it must be resolved by the arbitrators not challenged; and,

e) In the case of sole arbitrator or the challenge lies on the tribunal, it must be resolved by the director of the nearest arbitration center to the domicile of the claimant.

Arbitrators appointed by parties’ agreement can only be challenged for unknown reasons at the time of the appointment or supervening at the appointment.

Finally, we must point out that the number of challenges in Ecuador has historically been low, and thus has been maintained today without abrupt increase in challenge cases.

Chile Small Flag Chile

For international arbitration, according to Article 12(2) of the ICA Act, an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence, or if he or she does not possess the qualifications agreed to by the parties.

The parties are free to agree on the procedure –which may be set forth by the applicable arbitration rules. Failing such agreement, Article 13(2) of the ICA Act states that a party who intends to challenge an arbitrator shall, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his or her office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. If a challenge under this procedure or any other procedure agreed upon by the parties is not successful, the challenging party may request, within 30 days after having received notice of the decision rejecting the challenge, the President of the competent Court of Appeals to decide on the challenge, whose decision shall not be subject to appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and render an award.

For domestic arbitration, the grounds for challenge are those applicable to national judges set forth by the Judiciary Code, provided that such grounds arose after the appointment, or were unknown by the parties by such time.

Switzerland Small Flag Switzerland

The appointment of an arbitrator may be challenged based on three grounds (art. 180 para 1 PILA and art. 367 CPC), namely, (i) if the appointed arbitrator does not have the qualification agreed upon by the parties, (ii) if the rules of arbitration agreed upon by the parties provide a ground for challenging the arbitrator, and (iii) if circumstances giving rise to reasonable doubts as to the arbitrator's independence exist.

A party that wishes to challenge an arbitrator it itself nominated, or in whose appointment it participated, may only do so on grounds that have come to its attention after the appointment. The grounds for challenge must be notified to the arbitral tribunal and the other party without delay.

In case the parties have not agreed on a procedure for challenging an arbitrator (including by means of referring to institutional rules of arbitration), the competent court at the seat of the arbitral tribunal shall take a final decision (art. 180 para 3 PILA).

Taiwan Small Flag Taiwan

Yes, the parties may request recusal under the following circumstances: The arbitrator lacks the qualifications requested by the parties, the same circumstances for the recusal of a judge under the Code of Civil Procedure also exists for the arbitrator, the arbitrator has had or is currently having an employment or agency relationship with the part(ies)’ representatives or key witnesses, or any other circumstance that would cause the parties to believe the arbitrator cannot independently and impartially perform his or her duties. A party cannot ask for its own nominee arbitrator to be recused unless the circumstances giving rise to the recusal happen or become known to the party after the selection was made. (Article 16 of the AL)

When requesting recusal, for a sole arbitrator, the party shall submit the request to the court. For all other circumstances, the party shall submit a written request to the tribunal within 14 days after becoming aware of the relevant facts, and the tribunal shall decide within 10 days. If the tribunal has not yet been established, the timing on the party’s request shall start to toll after the establishment of the tribunal. A party may petition a court to decide if it wishes to contest the tribunal’s decision, but it may not appeal the court’s decision thereafter.

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In international commercial arbitral proceedings having their seat in Greece, articles 12, 13 and 14 L. 2735/1999 provide for the challenge of an arbitrator incorporating verbatim the respective provisions of the Model Law. The Court competent to adjudicate the challenge is the one mentioned under Question 14 above. Although the parties may agree on a specific challenge procedure, they may not exclude the exercise of judicial control over the decision of the tribunal dismissing a challenge request which is provided under article 13 para. 3.

In domestic arbitration the parties may jointly revoke the appointment of an arbitrator (article 883 para. 1 of the GrCCP). In case such an appointment has taken place by virtue of a Court decision, a request for its revocations must be filed and be accepted by the same Court. Challenges against arbitrators are adjudicated by the Courts. Pursuant to article 883 para. 2 in fin GrCCP, pending such challenge the arbitral tribunal postpones the proceedings. The arbitrator challenged shall also temporarily refrain from exercising his duties. However, according to the prevailing view in legal literature, said prohibitions are in fact leges imperfectae in the sense that the award may be set aside only in case it was made by an arbitrator who had already been successfully challenged.

A recent development as regards impartiality standards is a growing body of case law according to which the Greek State may not appoint as arbitrators Members of the Legal Council of the State i.e. of the Body of the Administration the member of which are vested with the power, amongst others, to represent the State before the Courts.

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The appointment of an arbitrator can be challenged if (i) the arbitrator does not meet the qualifications determined by the parties, (ii) there is a ground for refusal as designated under the arbitration procedure agreed by the parties, and (iii) the circumstances rightfully cast doubt on the impartiality of the arbitrator. The challenge request should be made to arbitral tribunal (and the counter party should be informed as well) within 30 days from the day the challenging party finds out about the circumstance which gave rise to challenge. If the tribunal rejects the challenge request, the challenging party may apply to the court of first instance.

Updated: November 6, 2019