In your country, are there any restrictions in the appointment of arbitrators?
International Arbitration (4th edition)
Under Argentine Law, any person possessing full legal capacity can act as an arbitrator. The parties are allowed to stipulate specific conditions with respect to the arbitrators’ nationality, profession and experience (Art. 1660 NCCC and 743 CP).
De iure arbitrators acting in domestic arbitrations must be lawyers, duly admitted to the local bar of the seat of the arbitration in compliance with Argentine law. This requirement should be considered merely as a domestic public policy requirement and, therefore, not applicable to international arbitration proceedings.
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 amendments of 2017 in ICCA provide in Art.11, para. 3 that as an arbitrator may be appointed only a capable adult citizen who has not been convicted of a premeditated crime of general nature, has a university degree, has at least 8 years of professional experience and possesses high moral qualities. In addition, in case of arbitration between parties with residence or seat in the Republic of Bulgaria (domestic arbitration), a foreign national may not be an arbitrator (except in the cases when a party to the dispute is an enterprise with predominantly foreign shareholders).
The FAA does not expressly impose restrictions on the appointment of arbitrators. However, evidence of partiality or corruption on the part of arbitrators can be grounds for vacating an award. See 9 U.S.C. § 10. Additionally, some state laws do have restrictions on the appointment of arbitrators. For example, California requires that arbitrators be “neutral.” See CAL. CIV. PROC. CODE § 1282 (2019).
Although there are no restrictions on the parties’ freedom to choose arbitrators, an arbitrator must be independent and impartial. This is provided for in the domestic and international arbitration acts of all the provinces either expressly or by implication. The international acts also require arbitrators to disclose any circumstances that may give rise to a reasonable apprehension of bias. There is no requirement than an arbitrator be trained as a lawyer or be a member of the legal profession.
Arbitration Law in Cyprus does not have any restrictions as to who may act as an arbitrator. The parties can appoint anyone they deem fit depending on the nature of the dispute referred for arbitration. The arbitrator may be a retired judge, a lawyer or any other professional.
The arbitrators must be of full legal age, have full legal capacity and have no prior criminal conviction.
Arbitrators must be excluded from proceedings where there is reason to doubt their impartiality.
The arbitrators must consent to being appointed. This consent must be stated in writing.
UAE- Federal Jurisdiction
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.
UAE - Common Law Jurisdictions
Both under the DIFC Arbitration Law and the ADGM Regulations, there are provisions that allow for the challenge of arbitrators if justifiable doubts exist as to their impartiality or independence, or if they do not possess qualifications agreed to by the parties.
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.
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.
The Arbitration and Conciliation (Amendment) Act, 2019 inserted a new provision Schedule VIII (Section 43J) (which is still to be notified) which mandates Qualifications and Experience of Arbitrator-
A person shall not be qualified to be an arbitrator unless he—
- is an advocate within the meaning of the Advocates Act, 1961 having ten years of practice experience as an advocate; or
- is a chartered accountant within the meaning of the Chartered Accountants Act, 1949 having ten years of practice experience as a chartered accountant; or
- is a cost accountant within the meaning of the Cost and Works Accountants Act, 1959 having ten years of practice experience as a cost accountant; or
- is a company secretary within the meaning of the Company Secretaries Act, 1980 having ten years of practice experience as a company secretary; or
- has been an officer of the Indian Legal Service; or (vi) has been an officer with law degree having ten years of experience in the legal matters in the Government, Autonomous Body, Public Sector Undertaking or at a senior level managerial position in private sector; or
- has been an officer with engineering degree having ten years of experience as an engineer in the Government, Autonomous Body, Public Sector Undertaking or at a senior level managerial position in private sector or self-employed; or
- has been an officer having senior level experience of administration in the Central Government or State Government or having experience of senior level management of a Public Sector Undertaking or a Government company or a private company of repute;It is pertinent to note that the same have been incorporated from the IBA Guidelines of Conflict of Interest in International Arbitration.
The Arbitration Law requires an arbitrator to:
- have the capacity to act under the law;
- be at least 35 years old;
- not have any family relationship with the parties to a dispute;
- not have any financial or other interests in the arbitration award; and
- have at least 15 years of experience and knowledge in the area of the matters under dispute.
A judge, prosecutor, clerk or other court official cannot be appointed as an arbitrator.
If BANI rules are to apply in the arbitration proceeding, the parties can only propose arbitrators who are on BANI’s list of arbitrators. An exception may, however, apply with the approval of the Chairperson of BANI, who may consider that no BANI-listed arbitrator has the required qualifications to resolve the dispute.
The parties do have absolute autonomy with respect to the determination of criteria which an arbitrator must fulfil for being eligible to act in such capacity. Irrespective of whether or not the parties have agreed on such criteria in the arbitration agreement, they must take into consideration that arbitrators must be independent and impartial (see § 605 Liechtenstein CCP).
No, there are no restrictions in the appointment of arbitrators. In this respect, Section 13(2) provides that parties are free to agree on a procedure for appointing the arbitrator.
Additionally, Section 13(1) of the Arbitration Act also states that, unless otherwise agreed by parties, no person shall be precluded from acting as an arbitrator by reason of nationality.
No, the parties are free to jointly agree the number of arbitrators and procedure to select them.
Nevertheless, the person that may be appointed as an arbitrator, prior accepting the designation, must disclose all circumstances that may give rise to justified doubts about his impartiality or independence with the parties.
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.
Arbitrators must be impartial and independent from the parties and qualified for the task. Before undertaking the assignment, each arbitrator must inform the parties of any circumstances which may question his or her impartiality or independence. Within these requirements, the parties are free to choose and nominate arbitrators. However, the restrictions are not mandatory and can therefore be departed from in the arbitration agreement.
There are few mandatory requirements for the tribunal in the Arbitration Act. The parties are free to stipulate specific requirements for the tribunal in the arbitration agreement (eg, imposing specific qualification requirements for the arbitrators, a different number of arbitrators or a different appointment procedure – except in relation to each party's right to seek the ordinary courts’ help in order to nominate one or more arbitrators when the parties cannot agree).
In international commercial arbitration, there are no restrictions on which arbitrators can be appointed by the parties, unless otherwise expressly agreed upon by the parties (Art. 4.11, ADR Act). In domestic arbitration, arbitrators have to be of legal age, in full enjoyment of his or her civil rights and able to read and write. He or she must not be related by blood or marriage within the sixth degree to a party, or have any financial, fiduciary or other interest in the controversy. (Art. 5.10, IRR)
The Arbitration Law imposes very broad limitations on the choice of arbitrators. Under Article 14, an arbitrator must be legally competent, of good character and conduct and reputation, and hold a university degree in Sharia law or legal sciences. With regard to the last requirement, if the arbitral tribunal is made up of more than one arbitrator, it is sufficient that the head of the tribunal fulfills this condition. There are no explicit nationality or gender restrictions on the choice of arbitrators.
As a matter of principle, the parties are free to determine the number of arbitrators and the manner in which they are appointed, directly or by reference to arbitration rules (FCCP Articles 1444 and 1508). Arbitrators must be and remain independent and impartial (FCCP Articles 1456 and Article 1506).
In international arbitration the parties may, directly or by reference to institutional arbitration rules, appoint one or several arbitrators, or provide the conditions for their appointment in their arbitration agreement (FCCP Article 1508). The parties are free to determine the number of arbitrators.
In domestic arbitration, the tribunal must be composed of an uneven number of arbitrators; otherwise the arbitral tribunal is completed by the addition of one arbitrator (FCCP Article 1451). Only physical persons may act as arbitrators. If the arbitration agreement designates a legal person, the same will only be allowed to administer the arbitration (FCCP Article 1450). In practice, parties more often refer to a physical person rather than to a legal person to act as arbitrator in their arbitration agreement.
There are no specific restrictions in the appointment of arbitrators other than having attained the age of majority, enjoying full legal capacity and capable of disposing of his or her own rights. The arbitrator shall accept his or her appointment in writing and shall declare any events giving rise to justifiable doubts as to his or her impartiality and independence. (article 16)
It is worth noting that judges or members of the judiciary may sit as arbitrators, but they are required to obtain an administrative permission from the Supreme Judicial Council to sit as arbitrators in a specific case. In this regard, in a recent judgment of the Egyptian Court of Cassation ruled that the absence of the Supreme Judicial Council authorisation for a sitting judge to sit as an arbitrator in a specific case – despite being in breach of the Judicial Authority Law – does not affect the validity of the arbitral award. (Court of Cassation, commercial circuit, challenge no. 9968 of JY 81, hearing session dated 9 January 2018)
Art. 19 of the LAM provides as a restriction to be an arbitrator, individuals that have no capacity to appear by themselves in a trial. Also, it must be considered that, in accordance with Art. 3 of the LAM, in de jure arbitration, arbitrators must be lawyers.
For domestic arbitration, the eligibility requirements are: (i) reading and writing skills, (ii) being older than 18 years, (iii) being a lawyer in Chile unless when serving ex aequo et bono.
Active judges cannot serve as arbitrators.
The ICA Act does not have any restrictions for serving as arbitrator. Without prejudice, Article 11(1) does preclude a person from acting as an arbitrator by reasons of nationality if the parties so agree.
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.
The arbitrator must be a natural person and meets any one of the following criteria: (i) Have served as a judge, magistrate or prosecutor; (ii) have experience as a lawyer, accountant, architect, technician or other commerce-related profession for at least 5 years; (iii) have served as an arbitrator in a dispute under a domestic or foreign arbitration institution; (iv) have served as an assistant professor or higher for more than five years at a domestic or foreign college, university or vocational school recognized by the Ministry of Education; or (v) possesses expertise or know-how in a specialized field and provided service in that field for at least 5 years. In addition, an arbitrator must not have faced any of the following circumstances: (i) convicted of corruption or dereliction of duty; (ii) convicted of any other offense and sentenced to one year of imprisonment or greater; (iii) stripped of public rights and the penalty has not yet expired; (iv) declared bankruptcy and has yet to recover his/her property rights; or (v) became subject to guardianship or assistantship and the order has not yet been cancelled. A candidate arbitrator meeting the above positive and negative rules shall undergo and pass training before applying to an arbitration institution to become an arbitrator. (Articles 5, 7 and 8 of the AL).
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.
According to the CCP, if the parties agree on a panel of arbitrators, at least one of the members of the tribunal should be a law graduate with a minimum of 5-year experience in his field. There is no such restriction for arbitrations governed by the IAL. Judges and public prosecutors are not allowed to sit as arbitrator.