In your country, are there any restrictions in the appointment of arbitrators?
International Arbitration (3rd edition)
Yes, there are limitations on who may serve as arbitrator. An arbitrator must not be a minor or under legal custody, and must not have been deprived of his or her civil rights by reason of criminal conviction in a felony, misdemeanor in crimes relating to honour or by reason of bankruptcy. Arbitrators have ethical duties. They are required to perform the role of the judiciary for the dispute in question and must therefore conform to the ethical standards of a judge which includes impartiality, neutrality and independence.
In both domestic and international arbitration, the parties are free to determine the number of arbitrators, directly or by reference to arbitration rules (Articles 1444 and 1508, CCP).
However, in domestic arbitration, the number of arbitrators cannot be an even number, so that if the arbitration agreement provides for an even number of arbitrators, an additional arbitrator must be appointed (Article 1451, CCP). There is no corresponding rule for international arbitration.
The CCP does not provide for a default number of arbitrators in the absence of an agreement.
French law imposes few requirements on arbitrators, none of which relate to the arbitrators’ nationality or professional qualifications.
Specifically, the CCP provides that only natural persons having full capacity can act as arbitrators in domestic arbitration proceedings.
Legal persons, if designated in the arbitration agreement, can only administer the arbitration (Article 1450, CCP). This provision does not apply to international arbitration.
The CCP also lays down a requirement of independence and impartiality, applicable in both domestic and international arbitration (Article 1456, CCP). Failure by the arbitrators to meet this requirement may result in their removal (see Question 15).
According to article 11(1) and 11(2) of Law no 101/1987, the parties are free to select arbitrators.
Arbitrators have to be over the age of 18, have a full legal capacity and no prior criminal conviction, as set in Section 4 of the Arbitration Act. The parties are generally not limited in their choice of arbitrators, only in case of a court-appointment the court shall take into account the aspect of independence and impartial decision making of the arbitrators. Additionally, the arbitrator must consent to the appointment and the consent must be in writing (Section 5 of the Arbitration Act).
Naturally, an arbitrator is excluded from any proceedings and decision making, if there is reason to doubt his unbiasedness with regard to his relation to the subject of the dispute, the parties, or their legal representatives (Section 8 of the Arbitration Act).
Under the provisions of the Romanian CPC, any individual with full capacity to exercise his/her rights may act as an arbitrator. To this end, the law does not provide for any additional conditions to be met.
When arbitration is organized by a permanent arbitral body, then the arbitral institution decides upon all matters related to the appointment, removal or disqualification of the arbitrators.
In Serbia, any natural person having contractual capacity, irrespective of its nationality, may act as an arbitrator. Arbitrator must have the qualities agreed upon by the parties.
Only limitations imposed by law with regard to the choice of arbitrator is that it cannot be a person sentences to an unsuspended sentence of imprisonment while the consequences of the conviction are in effect.
The parties are also free to agree on a procedure of appointing the arbitrators, and no limits are imposed on the parties in that regard.
According to Article 30 of the Arbitration Law, the parties can agree to have a tribunal comprised of either one or three arbitrators.
Article 13 of the Arbitration Law sets out the criteria required of persons whom a Chinese arbitration institution can appoint as an arbitrator. These largely focus on the kind of experience required before someone can be appointed as an arbitrator. Also, the Arbitration Law requires arbitrators to be impartial and not related to the dispute or the parties to such dispute (Article 3).
a. According to the DIA-rules the president of the Arbitral Tribunal or the sole arbitrator shall hold a law degree.
Any natural person with full legal capacity may act as an arbitrator, and there are no nationality restrictions in this respect. However, judges may not act as arbitrators unless they are retired.
In general, there are no restrictions on the appointment of arbitrators, apart from the requirements of independence and impartiality. As an exception to the foregoing, in domestic arbitration only the conciliation authority may be appointed as arbitral tribunal in matters relating to the lease and usufructuary lease of residential premises (art. 361 para 4 CPC).
Although the IBA Guidelines on Conflict of Interest in International Arbitration have no statutory value, the Swiss Federal Tribunal indicated that the IBA Guidelines on Conflict of Interest in International Arbitration may serve as valuable instrument when verifying the independence and impartiality of arbitrators. Furthermore, the Swiss Federal Tribunal has ruled that the co-arbitrators and the chairperson are subject to the same degree of independence.
Article 10 of the UAE Arbitration Law, prescribes that an appointed arbitrator must:
be ‘a physical person, and he may not be a minor, incapacitated, or deprived of his civil rights due to declaration of bankruptcy unless he is rehabilitated, or due to being sentenced for a felony or misdemeanour involving moral turpitude or dishonesty, even if he is rehabilitated’; and
‘not be a member of the Board of Trustees or the administrative branch of the competent Arbitration Institution administering the arbitration case…’.
The arbitrators appointed must also remain independent and impartial for the duration of the arbitral process.
The DIAC Rules (Article 9) and DIFC-LCIA Arbitration Rules (Article 5) also make reference to the ongoing requirement that the arbitrators remain independent and impartial for the duration of the arbitral proceedings.
Arbitrators must act fairly and impartially as between the parties (s.33 of the 1996 Act). The Arbitration Act imposes no other conditions pertaining to the qualifications and characteristics of arbitrators. In particular, it is not necessary for an arbitrator to be a national of, or licensed to practise in, England.
Under Article 13 of the Law of Arbitration, when multiple arbitrators are appointed, they shall be odd in number, otherwise the arbitration shall be void.
Article 14 of the Law of Arbitration requires an arbitrator to be:
1. of full legal capacity;
2. of good conduct and reputation; and
3. holding a university degree in Shariah or Law.
If the arbitration tribunal is composed of more than one arbitrator, it is sufficient that the chairman meets the above requirements.
Article 16(1) of the Law of Arbitration requires an arbitrator to have no vested interest in the dispute.
No. The FAA does not restrict parties’ appointment of arbitrators. Most state laws do not restrict appointment in any meaningful way; however, some states do have restrictions, such as New Jersey, where an individual who has “a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party” cannot serve as an arbitrator where the agreement requires that the arbitrator be neutral. N.J. Stat. Ann. § 2A:23B-11.
The parties are free to agree on a procedure to select the arbitrators. The only prerequisite is that an arbitral tribunal may not consist of an even number of arbitrators. There are no restrictions regarding the choice of an arbitrator. Specifically, also non-lawyers may be appointed as arbitrators.
The ACA does not provide for any qualifications as to who can act as an arbitrator. However, before persons can be appointed as arbitrators, certain factors are usually considered such as the relationship of the intended arbitrator to the issues and parties, the nature of dispute, the technical and commercial experience and ability of the arbitrator to resolve the dispute, ability to take charge and to conduct the proceedings expeditiously, arbitral experience in relation to reasonable legal knowledge and special qualification or expertise as stipulated in the arbitration agreement. Serving judges cannot act as arbitrators but retired judges can act as arbitrators.
In Portugal, arbitrators should necessarily be individual persons with full legal capacity, independent and impartial (art. 9 (1) and (3) LAV). The law does not determine that only arbitrators with a legal background may be appointed.
Also, whoever is invited to exercise functions as an arbitrator has a duty to disclose all the circumstances that may cause justified doubts regarding its impartiality and independence (art. 13 (1) LAV).
Except as described below, parties are free to select arbitrators and agree on their number and method of appointment. Unless the parties have agreed otherwise, either the sole arbitrator or at least one of the tribunal members shall be a lawyer qualified in Russia or another jurisdiction. Moreover, regardless of the parties’ agreement an arbitrator must be more than 25 years old, have the full legal capacity, not have any effective criminal or disciplinary record (within the legal profession), and not be barred from acting as an arbitrator by federal law.
No, there are no restrictions. The parties are free to provide as to how an arbitrator is to be selected. Typically, this would involve an attempt to agree upon an arbitrator and in default of agreement, an office holder of a nominated body would be chosen to appoint the arbitrator. Under Article 11 of the Model Law, in the absence of a nomination process or the failure to have an arbitrator appointed, the High Court may nominate an arbitrator.
The Arbitration Act requires that the arbitrators be impartial and independent of the parties, and be qualified for the appointment.
German Law does not provide for any specific restrictions regarding the appointment of arbitrators. The parties are free to choose the arbitrators, section 1035 German Code of Civil Procedure (Zivilprozessordnung, "ZPO") as long as they are impartial and independent to prevent them from being challenged under the prerequisites of section 1036 (2) ZPO.
Judges of Croatian courts can only be appointed as presiding arbitrators or sole arbitrators.
The CJO provides for some restrictions in the appointment of arbitrators. Specifically, Article 226 of such statue establishes as a general rule, that the parties or the judge who are involved in the dispute, may not be appointed as arbitrators. Also, Article 225 of the CJO states that arbitrators must be of legal age, legally capable of disposing of their assets, and that they must know how to read and write. This provision also states that only lawyers may be appointed as de jure arbitrators.
On the contrary, the ICAL does not impose specific restrictions for the appointment of arbitrators. Nevertheless, it does state that the nationality of an arbitrator shall not be an obstacle for her or his appointment, unless otherwise agreed by the parties (Article 11(1)) and it also recognizes indirectly in its arbitrators challenge provisions, that they must be impartial and independent from the parties (Article 12).
For domestic arbitration, the ADR Law requires an arbitrator to be of legal age, in full enjoyment of his/her civil rights, and literate.
No arbitrator shall be:
- related by blood or marriage within the sixth degree to either party to the controversy;
- has or has had financial, fiduciary or other interest in the controversy; or
- has any personal bias, which might prejudice the right of any party to a fair and impartial award.
For international arbitration, the UNCITRAL Model Law allows an arbitrator to be challenged only if circumstances exist giving rise to justifiable doubts as to his/her impartiality or independence, or if he/she does not possess the qualifications agreed to by the parties.
In domestic arbitration pursuant, to article 871 para. 2 GrCCP, as arbitrators may not be appointed (a) persons that have no legal capacity or have limited legal capacity, (b) persons deprived of their citizen right to vote and to be elected due to a prior criminal conviction, (c) legal entities. In addition, article 871A GrCCP provides for certain conditions and limitations regarding the appointment of acting judges as arbitrators. Further to said explicit restrictions it is unanimously accepted in case law and legal literature under the principle nemo iudex in causa sua and the maxim of fair trial that a person may not be validly appointed as arbitrator in a dispute involving his own interests. There is no restriction as to the nationality of the arbitrator.
In international commercial arbitral proceedings having their seat in Greece, article 11 para. 1 L. 2735/1999 applies incorporating verbatim the provisions of the Model Law. It provides in particular, that, unless otherwise agreed, no person shall be precluded by reason of his nationality from acting as an arbitrator. Furthermore, same article provides that in case the appointment of an arbitrator takes place by Court intervention, the Court shall duly consider any qualifications provided for under the agreement of the parties as well as matters pertaining to the independence and impartiality of the arbitrator. It is also provided that the Court shall examine whether it would be prudent to appoint an arbitrator of a nationality different than those of the parties.