Can the local courts intervene in the selection of arbitrators? If so, how?
International Arbitration (4th edition)
Please see answer 14 above.
Courts are only involved in the appointment of arbitrators upon application of a party in case the applicable mechanism to appoint the arbitral tribunal has failed. Courts may also be called upon to decide on the application to remove an arbitrator, e.g. due to lack of independence or impartiality.
The court cannot intervene in the selection of arbitrators (apart from the case where the court acts as an appointing authority as per ICCA rules), but has the authority to rule on the subsequent challenge of an arbitrator.
As discussed above, under the FAA, courts can intervene in the selection of arbitrators when the parties have not agreed on a selection process. Where the parties have agreed a method for selecting arbitrators, courts generally will defer to the parties’ agreement.
Yes, if the parties have not agreed on the procedure to appoint an arbitrator or if a party fails to follow the procedure agreed upon, a court may appoint the arbitral tribunal on a party’s application. If the parties are unable to decide on an arbitrator based on their agreed procedure, then courts may also interfere and appoint an arbitrator. This is provided for in all the arbitration acts across the provinces. There is no appeal from the court’s appointment of the arbitral tribunal.
Under the international acts and in Quebec, a party has 30 days to appoint an arbitrator, failing which the courts will do so.
Local Courts may intervene in the selection of arbitrators according to Law 101/1987, in case:
a) one of the parties fails to act according to the agreement, or
b) the parties or the two arbitrators fail to come to an agreement, or
c) a third party, natural or legal person including the arbitral tribunal fail to act according to the expected procedure agreed.
In either case, following a request by one of the parties, the court will have the power to take the necessary steps unless the parties agree otherwise for the appointment of arbitrator(s). Further, local Courts can assist in domestic and international arbitrations at the request of an Arbitral Tribunal or a party following agreement of the tribunal. In addition, Cap. 4 provides power to the Court to intervene in the appointment process of Arbitrators.
In case of ad hoc arbitration, the courts may be asked to appoint an arbitrator where any party or the arbitrators fail to select an arbitrator as provided for in the arbitration agreement or the relevant legal provisions. Moreover, the court may exclude an arbitrator upon the petition of one of the parties where reason to doubt his or her impartiality exists or becomes clear.
Disputes being resolved by a permanent arbitration tribunal shall be subject to the internal rules of that tribunal. For example, for disputes in the Arbitration Court attached to the Economic Chamber of the Czech Republic and the Agricultural Chamber of the Czech Republic, the panel or chair of the arbitration tribunal may intervene if one of the arbitrators has not been nominated.
UAE- Federal Jurisdiction
Article 11(5) of the UAE Arbitration Law provides that the court may take the relevant actions for the ‘completion of the composition and appointment of the members of the Arbitral Tribunal’, upon request of a party.
Such actions may be taken where the authorised entity fails to appoint the Arbitral Tribunal, pursuant to the agreement of the parties or the terms of the UAE Arbitration Law.
Article 11(8) of the UAE Arbitration Law further provides for the Court, upon the request of the parties, ask an arbitral institution to provide a list arbitral specialist for potential appointment. This would seem to expand the possibility more suitable arbitrator may be appointed.
UAE - Common Law Jurisdictions
A party may request the DIFC Court of First Instance to intervene where there has been a failure on behalf of the parties, the arbitrators or third parties (including the relevant arbitral institution) to validly constitute an Arbitral Tribunal (Article 17).
Should the parties fail to agree on the procedure for appointing an arbitrator or arbitrators, the ADGM Regulations (Regulation 18) provide the below.
A Sole Arbitrator
Where parties cannot agree on a sole arbitrator, within 30 days of one party requesting the other to do so, the arbitral institution administering the arbitration or the Court (where no arbitral institution has been appointed) shall, on the request of either party, appoint the arbitrator.
A Three-Member Arbitral Tribunal
Where an Arbitral Tribunal is to comprise of three members, each party shall appoint one arbitrator. These two appointed arbitrators shall subsequently appoint a third arbitrator as the ‘presiding arbitrator’.
The arbitral institution which administers the arbitration, or the Court (where no arbitral institution has been appointed) on request of either party shall appoint:
two arbitrators for a three-member Arbitral Tribunal where no arbitrators have been appointed within 30 days of receipt of a party’s request to the other party to do so; or
a ‘presiding arbitrator’ where the two party-appointed arbitrators cannot agree on a ‘presiding arbitrator’ within 30 days of their appointment.
Multiple Claimants and/or Respondents before a Three-Member Arbitral Tribunal
Where there are multiple claimants and/or multiple respondents, the parties shall jointly appoint a single arbitrator on behalf of the claimant and the respondent, in accordance with any procedures agreed upon by the parties.
Where no agreement has been reached between the parties, the Arbitral Tribunal shall appoint the three-member Arbitral Tribunal in accordance with the section entitled ‘A Three-Member Arbitral Tribunal’’ above.
In the absence of joint nomination procedure and where there is no agreement between the parties as to a method for the constitution of the Arbitral Tribunal, the arbitral institution administering the arbitration or the Court (where no arbitral institution administering the arbitration has been appointed) shall appoint the arbitrators and ‘presiding arbitrator’.
The decision of the arbitral institution or the Court is not subject to appeal.
The arbitral institution or the Court, when appointing the Arbitral Tribunal, shall:
have due regard to the qualifications of the arbitrators, on which the parties have agreed;
have due regard to such considerations which are likely to result in the appointment of an ‘independent and impartial ‘ arbitrator; and
take into account the ‘advisability of appointing an arbitrator of a nationality other than that of any party’.
The courts can intervene where the parties have not agreed the procedure for the appointment of the arbitral tribunal. Pursuant to s.18 of the 1996 Act, any party may apply to the court (under Part 62 of the Civil Procedure Rules) to exercise its powers to (a) give directions on the appointment, (b) approve or revoke previous appointments or (c) make the appointment itself.
As mentioned in the preceding question, s 8(2) of the IAA specifies the President of the SIAC Court of Arbitration as the competent authority for making appointments in the absence of party agreement under Art. 11(3) of the UNCITRAL Model Law. S 8(3) does provide, however, that the Chief Justice of Singapore may ‘appoint any other person to exercise the powers of the President of the Court of Arbitration of the Singapore International Arbitration Centre under subsection (2)’.
Local courts may intervene in the selection and appointment of arbitrators when requested by either party under Article 12 of the Arbitration Act.
Local courts can intervene in the selection of arbitrators, particularly in the following cases:
Imbalanced arbitration agreement regarding the composition of the tribunal: section 1034 (2) ZPO provides for a court intervention if the arbitration agreement significantly favors one party as regards the composition of the arbitral tribunal, and this places the other party at a disadvantage. In this case the disadvantaged party may request the competent OLG to appoint the arbitrator(s). The court's decision may diverge from the party agreement to ensure balanced influence of both parties on the formation of the tribunal.
Appointment of arbitrators: As already set out in question no. 13, the competent OLG may intervene if (a) the parties fail to agree on the sole arbitrator, if (b) the parties fail to select the arbitrator for a tribunal consisting of three arbitrators, or if (c) the arbitrators selected by the parties fail to appoint the chairman.
Other procedural matters: The court is furthermore entitled to intervene upon a party's application if the parties to the dispute have agreed on a procedure for the appointment, and where one party does not adhere to this procedure, or where the parties to the dispute or the two arbitrators are unable to come to an agreement in accordance with the said procedure, or where a third party does not fulfil the tasks conferred upon it under the procedure (section 1035 (4) ZPO).
Challenge procedure: According to section 1037 (1) ZPO the parties are free to agree on a procedure for challenging an arbitrator. If a challenge under the procedure agreed upon by the parties remains unsuccessful, the challenging party may request the court to decide on the challenge (section 1037 (3) ZPO).
If the parties fail to mutually agree on deciding the arbitrators or in case of failure of one party to act in accordance with the Agreement, then Courts jurisdiction can be invoked. Any of the parties/aggrieved party may move an application for the appointment of the arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996.
Furthermore, in view of section 14 and 15 of the Arbitration and Conciliation Act, 1996, the Hon’ble Court has the power to terminate the mandate of an Arbitrator if such Arbitrator becomes de-jure or de-facto unable to perform his duty and substitute the arbitrator. Also as per section 29A(6) of the Arbitration and Conciliation Act, the Hon’ble Court can substitute an Arbitrator at the time of extending the time to complete the arbitration proceedings maximum by six months.
In theory, local courts can intervene in the selection of arbitrators if either party files an application for it, due to an impasse in the selection of arbitrators between the parties or between the arbitrators appointed by the parties. However, we have rarely seen such an intervention in practice and, unlike Article 13 of the Model Law, there is no deadline for making the appeal or for the court to make a decision on its challenge. Therefore, in practice, it is unclear whether the challenge to the appointment of an arbitrator can still be initiated with the court close to the issuance of the arbitral award. .Similarly, because there is no strict timeline to address the issue of challenge against the appointment of an arbitrator, the court may not address the challenge as a matter of urgency. (Please see answer 16 on this topic).
If the parties have not agreed on a procedure for the selection of arbitrators, the following applies: (a) if the parties fail to agree on the appointment of a sole arbitrator within a period of four weeks from the receipt by a party of the respective request to do so from the other party, the court will appoint the sole arbitrator upon application by one of the parties. If a party fails to appoint an arbitrator in the context of the appointment procedure for the composition of an arbitral tribunal, the same procedure as set out above applies in principle.
If the parties have agreed on a procedure for the selection of arbitrators but one of the parties does not follow the agreed-upon procedure, or the parties or arbitrators cannot find an agreement under the agreed-upon procedure, or if a third party does not fulfil tasks delegated to him or her in the context of the agreed-upon procedure, each party can file an application with the court to appoint the arbitrators unless the agreed-upon procedure provides otherwise (see § 604 Liechtenstein CCP)
In the event the Director of the AIAC is unable to act or fails to act within 30 days from the request to appoint an arbitrator, any party may apply to the High Court for such appointment.
Yes, apart from the cases detailed in the question above, when in an appointment procedure agreed by the parties, one of them does not act as stipulated in such procedure, or the parties or two arbitrators cannot reach an agreement under the aforementioned procedure, or a third party, including an Institution, does not comply with any function conferred to it, any of the parties may request a judge to take the necessary measures to solve this matter.
A party may apply to the court for the appointment of an arbitrator where (a) a party fails to act as required under the procedure by appointing an arbitrator; or (b) the parties or two arbitrators are unable to reach agreement as required under the procedure; or (c) a third party, including an institution, fails to perform any duty imposed on it under the procedure. See section 7(3) of the ACA. In such situation, the High Court is the default appointing authority (section 7, ACA). Where the arbitration is international in nature and the nationality of the arbitrator(s) is not stated, it is recommended to appoint an arbitrator of a nationality other than the nationality of the parties (section 44(4), ACA). The parties might have also agreed in international arbitrations that the appointing authority, being the Secretary-General of the Permanent Court of Arbitration at the Hague, should appoint the arbitrator in the event of default. Under the Lagos Law, the default appointing authority is the Lagos Court of Arbitration (section 8, Lagos Law).
If the appointment of an arbitral tribunal cannot be agreed on, the parties can demand that the local courts appoint the arbitrators. The courts may also play a part if the appointment of an arbitrator is challenged.
Yes. In institutional arbitration, the Regional Trial Court can intervene in the selection of arbitrators if: (a) the parties fail or refuse to appoint an arbitrator, the parties fail to agree on the sole arbitrator, or when two (2) designated arbitrators fail to agree on the third or presiding arbitrary; and (b) the institution fails or is unable to perform its duty as appointing authority within a reasonable time from receipt of the request for appointment.
In ad hoc arbitration, the Regional Trial Court can intervene in the selection of arbitrators if: (a) the parties failed to provide a method for appointing or replacing an arbitrator, or substitute arbitrator, or the method agreed upon is ineffective; and (b) the National President of the IBP, or his duly authorized representative, fails or refuses to act within the required period under pertinent rules, or as agreed upon by the parties, or, in the absence thereof, within thirty (30) days from receipt of such request for appointment. (Rule 6.1, A. Special ADR Rules)
In an ad hoc arbitration, the court may intervene in case of a disagreement between the parties about the selection process, or if two arbitrators fail to agree on the choice of a third. The court's intervention must be requested by one of the parties. The court's decisions in this regard are non-appealable, except at the end of the arbitration when a party files an application to have an arbitral award nullified.
If the arbitration is administered by the SCCA, the Center would resolve disputes between the parties as to the selection of the arbitrators.
At the parties’ request, the juge d’appui can appoint one or more arbitrators when the proceeding is not administered.
In international arbitration, unless the arbitration agreement provides otherwise, the juge d’appui shall be the President of the Tribunal de Grande Instance of Paris if one of the following conditions is met (FCCP Article 1505):
• The seat of arbitration is in France; or
• The parties have agreed that French procedural law applies to the arbitration; or
• The parties have expressly granted jurisdiction to the French courts over disputes relating to the arbitral procedure; or
• One of the parties is at risk of a denial of justice.
In domestic arbitration, the juge d’appui is the President of the Tribunal de Grande Instance or the President of the Tribunal de commerce (French Commercial court) if so provided by the arbitration agreement. In the absence of a specific agreement of the parties, the Tribunal de Grande Instance which has territorial jurisdiction is the Tribunal of the seat of arbitration. In the absence of such choice, the judge that has territorial jurisdiction shall be that of the defendant’s domicile, or the claimant’s if the defendant does not reside in France (FCCP Article 1459).
Yes, local courts can intervene in the selection of arbitrators in ad hoc proceedings. In this regard, the EAL provides that in absence of agreement between the parties on the selection of the tribunal, the competent Egyptian court shall undertake the appointment of the arbitrator(s), upon the request of one of the parties. That said, if the tribunal is composed of a sole arbitrator, the competent court shall undertake the appointment of the sole arbitrator, upon the request of one of the parties. However, if the tribunal is composed of three arbitrators, the default requirement is that each party shall appoint an arbitrator and both arbitrators shall appoint the chairman. If either party fails to appoint the arbitrator within thirty days of a request to do so from the other party, or if the two appointed arbitrators fail to agree on the third arbitrator (chairman) within thirty days of the date of the latest appointment between both, the competent court shall undertake the appointment of this arbitrator, upon the request of either party, and the court decision in this respect is final and not subject to any appeal or challenge. (article 17)
No. Local courts cannot intervene in the selection of arbitrators. According with Art. 16 of the LAM, in the case where the parties have not agreed on the appointment of the arbitrators, the director of the arbitration center selected by the parties, or the director of the nearest arbitration center if the parties have not selected any, shall have to select the arbitrators.
Yes, as described in answer 14 above.
In both the international and the domestic arbitration, the court at the seat of the arbitral tribunal may intervene and appoint, challenge, remove or replace an arbitrator upon request of a party to the arbitration proceeding (art. 179 et seq. PILA and art. 367 et seq. CPC). When seized, the court ("juge d'appui") must accept and act on the request to appoint an arbitrator unless a summary examination reveals that no arbitration agreement exists between the parties.
A party may petition a court (or the court may step in on its own accord) to intervene in the selection of an arbitrator upon the occurrence of any of the following circumstances:
- The chosen arbitrators fail to jointly nominate a president within 30 days; (Article 9, Paragraph 2 of the AL)
- The arbitration agreement provides for a sole arbitrator, and the parties fail to come to a consensus 30 days after either party has received a written request from the other party to select the arbitrator; (Article 9, Paragraph 3 of the AL)
- After a party has selected an arbitrator and has notified the other party to do the same within 14 days, the other party fails to do so; (Article 12, Paragraph 1 of the AL)
- Where the arbitration agreement has specified for the arbitration institution to select the arbitrator(s) and the arbitration institution fails to timely do so despite written requests from the parties; (Article 12, Paragraph 3 of the AL)
- The arbitrator chosen in the arbitration agreement has passed away or cannot adjudicate the arbitration for other reasons, or otherwise refuses to or delays in performing the duties of an arbitrator, and the parties fail to agree on selecting a replacement arbitrator; (Article 13, Paragraph 1 of the AL)
- The arbitrator chosen by the arbitration institution or the court has passed away or cannot adjudicate the arbitration for other reasons, or otherwise refuses to or delays in performing the duties of an arbitrator; or (Article 13, Paragraph 4 of the AL)
- The president has passed away or cannot adjudicate the arbitration for other reasons, or otherwise refuses to or delays in performing the duties of an arbitrator; (Article 13, Paragraph 5 of the AL)
Both in domestic as well as in international commercial arbitral proceedings having their seat in Greece, court intervention is provided upon request of a party to the arbitration agreement in all cases in which either the parties’ agreed procedure as regards the selection of the tribunal or the default rules applicable absent such agreement may not be implemented for various reasons. The Court competent to adjudicate the respective request is the One Member Court of First Instance having its seat in the district where the arbitration proceedings shall take place according to the arbitration agreement, otherwise the One Member Court of First Instance of the domicile of the requesting party, or of the place of its residence, or absent a place of residence the One Member Court of First Instance in Athens. The Court adjudicates the request under the rules set forth in articles 739 et seq. GrCCP controlling the so called “non-contentious proceedings”. Against the decision of the Court no legal remedy may be taken (appeal, petition for cassation etc.). A request for revocation and/or amendment may be filed nevertheless until the commencement of arbitral proceedings.
The courts can appoint arbitrator(s) if one of the parties fails to do so or the two party-appointed arbitrators cannot agree on the president.