Can the local courts intervene in the selection of arbitrators? If so, how?
Arbitrators are selected in accordance with the contractual arbitration provisions and any rules incorporated therein, failing which they are selected in accordance with the default procedural rules in the Arbitration Law. If the default procedures under the Arbitration Law are applied and a party fails to nominate an arbitrator, or the parties fail to appoint a chairperson, then the arbitrator in question is appointed through a court action.
The role of domestic courts in arbitral proceedings is strictly limited under Austrian law. Except where the law so provides, courts shall refrain from intervening in arbitration matters. Thus, Austrian domestic courts only intervene in the arbitrator selection process when (a) called upon after the selection procedure for all arbitrators has failed and when (b) called upon in a challenge of an arbitrator initiated by one party.
The French juge d’appui can be asked to appoint one or several arbitrators where the parties cannot agree on their appointment and where the arbitration is not administered by any institution.
In domestic arbitration, the support judge is the President of the Tribunal de grande instance (or of the Commercial Court, if the arbitration agreement so provides) (Article 1459, CCP). Article 1459 CCP lays down the rules to determine which Tribunal de grande instance has territorial jurisdiction – typically (in the absence of specific agreement of the parties), the Tribunal de grande instance of the seat of arbitration.
In international arbitration (unless the arbitration agreement provides otherwise), the juge d’appui is the President of the Paris Tribunal de grande instance, if one of the following conditions is met:
• The arbitration takes place in France.
• The parties have agreed that French procedural law will apply to the arbitration.
• The parties have expressly granted jurisdiction to the French courts over disputes relating to the arbitral procedure.
• One of the parties is at risk of a denial of justice.
If one party does not appoint its arbitrator or if the parties do not agree, when required (sole arbitrator or arbitrator nominated by both parties), they can apply to the national court to appoint the missing arbitrator. The competent national court is the court of appeal.
Local courts may also intervene in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator’s appointment. In this case, such arbitrator shall be appointed, upon request of any party, by the State court.
The Code of Civil Procedure provides that local courts, namely the tribunal whose jurisdiction covers the seat of the arbitration, may intervene in the selection of arbitrators by appointing an arbitrator or the presiding arbitrator in cases where the parties do not agree on the appointment of the sole arbitrator or a party fails to nominate an arbitrator or in the case of a three-panel arbitral tribunal, when the two arbitrators do not agree on whom should they appoint as presiding arbitrator. The local courts render a decision regarding the appointment of the arbitrators after hearing the parties.
The district court has an overall obligation to assist the parties in any matters regarding the appointment of arbitrators under the Arbitration Act.
Should respondent omit to appoint its arbitrator within the 30 days’ notice period under the Arbitration Act, the district court shall, on claimant’s request, appoint the arbitrator on behalf of respondent. The same applies should the party appointed arbitrators fail to appoint the chairman.
In the event that one of the arbitrators resigns or is disqualified, the district court shall appoint a new arbitrator. The same applies should an arbitrator unduly delay the proceedings.
As stated above, if a party fails to appoint an arbitrator or engage in the appointment procedure, the other party can apply to the High Court requesting that the Court make the appointment or take the step that the defaulting party has failed to take (see article 11, Schedule 1 or clause 1, Schedule 2 if it applies).
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.
Local courts (being the onshore UAE courts, the DIFC courts or the ADGM courts as applicable) can intervene to assist with the constitution of the tribunal where there has been a failure in the appointment process, as set out immediately above.
Pursuant to section 13(7), AA if the Director of the KLRCA is unable or fails to assist in the appointment of arbitrators within 30 days after a party’s request, any party may apply to the High Court to discharge the functions of the Director of the KLRCA under section 13(4), (5), and (6), AA.
Besides this statutory device, the court lacks authority to intervene in the selection of arbitrators, in light of the principle of non-judicial intervention in section 8, AA.
See answers to Questions 13 and 15.
Under the IAA, if a challenge to an arbitrator is not successful, the challenging party may request the High Court in Singapore to decide on the challenge. IAA, First Schedule, Article 13(3). However, the High Court does not have the power to appoint an arbitrator; in the event a party fails to nominate an arbitrator, the President of SIAC has the power to make that appointment.
As seen in item 13 above, the local courts can only intervene in the selection of arbitrators in cases where there is no agreement between the parties for the appointment of arbitrators. In such cases, according to paragraph 2 of article 13 of Law nº 9.307/96, the parties shall require the appointment of the arbitrator to the judicial organ that would be competent, originally, for the judgment of the cause, and applies, where applicable, the procedure laid down in Article 7 of Law nº 9.307/96, which provides the procedure for transcription of the judicial compromissum in cases where there is an arbitration clause and there is resistance to the arbitration.
Courts become involved in the selection of arbitrators only if the parties cannot agree or there is a challenge. Parties may request that a court appoint a tribunal if:
- a party does not follow the agreed process;
- a party does not name an arbitrator within the specified time; or
- the process to choose the third arbitrator is not implemented in the specified time.
Local courts cannot, under any circumstances, intervene in the selection of arbitrators.
Yes they can under art. 15.3 of the Arbitration Law when the methodology agreed by the parties cannot be implemented or produces nor result. In such case, any of the parties can request from the Superior Court of the Autonomous Community the appointment of any missing arbitrator.
The procedure is conducted under the Summary Proceedings (juicio verbal) of Spanish Procedural Act of 2000 ("SPA").
The Court must elaborate a list of three candidates for any arbitrator that needs to be appointed and then choose any of them aleatory.
If the sole arbitrator will be appointed and the parties cannot reach a compromise, the court will appoint the arbitrator upon the request of one party. If three (or more) arbitrators will be appointed, each party appoints the arbitrators on the same number and the appointed arbitrators choose the other arbitrator. Unless one of the parties appoint the arbitrators or the appointed arbitrators choose the other arbitrator (within one month, according to the Law no. 6100 and 30 days according to Law no. 4686), the court will appoint the missing arbitrators. The decisions of the court regarding the appointment of the arbitrator(s) cannot be appealed. In case the parties are from different nations and the sole arbitrator will be appointed by the court, the court considers that the nation of the arbitrator will not be the same with one of the parties; and in case three arbitrators will be appointed, the court considers that the two of the arbitrators will not be the same nation with the one party. The procedure is the same for the appointment of the more arbitrators.
Generally, the arbitrators are selected pursuant to the parties’ agreed procedure. Only if the parties are unable to agree on a certain procedure to appoint their arbitrators or if they are unable to choose their presiding arbitrator, state courts may intervene. In this case, the parties may apply to the court to appoint their arbitrators (section 1035 (3) ZPO) or may apply to appoint their presiding arbitrator (section 1062 (1) ZPO).
The President of the Tribunal where the arbitration proceeding has its seat can be requested by a party to intervene in the following cases:
- the parties agree in the arbitration clause that the arbitrator(s) are to be appointed by the court;
- a party fails to appoint (or replace) its arbitrator;
- the parties indicate an even number of arbitrators and they do not agree on an additional arbitrator;
- where a challenge and application for disqualification of the arbitrator is filed.
Yes (section 18). Parties may apply to court (under Part 62 of the Civil Procedure Rules (CPR)) for (a) directions on appointment (b) constitution of appointment or (c) appointment itself. The court shall have regard to any agreed qualification required of the arbitrators (section 19).
The High Court can intervene in the selection of arbitrators if the parties fail to agree on the appointment of an arbitrator. When appointing the arbitrator, the High Court must have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.
Local courts may not intervene in the selection of arbitrators, but under the default rule described above they may assist the parties in the selection of particular members of the tribunal.
Section 11(4) of the ICA Law provides that the Cypriot Courts have the authority to intervene in the appointment process upon request of a party, unless otherwise agreed by the parties, if a party fails to act according to the arbitration agreement or when the parties or the two
appointed Arbitrators are unable to proceed to the expected procedure agreed or where a third, natural or legal person including the arbitral tribunal fails to act according to what is expected in the procedure. Similar provisions as to the power of the Court to intervene in the appointment process of the Arbitrators are found in section 10 of Cap. 4.