In your country, are there any restrictions in the appointment of arbitrators?
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.
According to Austrian law, there are few requirements as to the capacity to serve as an arbitrator. It is, however, necessary to be a legally competent and natural person (no legal persons). Further qualifications are not necessary. Active Austrian judges cannot serve as arbitrators.
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 arbitrator must be an individual – it is not possible under Portuguese law to appoint a legal entity – and have full legal capacity. All arbitrators must be independent and impartial and have the duty to disclose any circumstance likely to give rise to justifiable doubts as to their impartiality and independence.
Under the arbitration law, any natural person with full capacity to exercise his/her rights may act as an arbitrator, without any other criteria needing to be met (eg, citizenship, as the previous rules stipulated or certain qualifications).
If the parties agree to arbitrate under the purview of the Bucharest Court of Arbitration, they must check the specific requirements set out in the regulations of this arbitral institution. It should be mentioned that for a period of two years CICA, the main arbitration institution, had changed its rules by prohibiting the parties from nominating the arbitrators, this role being fulfilled by an apponting authority; in 2014, CICA changed such much contested rule and returned to the traditional approach of party autonomy in selecting arbitrators.
Under the Arbitration Act, anyone who enjoys full legal capacity in regard to his actions and his property are capable of being an arbitrator, i.e. you must be at least 18 years old and you cannot have a trustee or be bankrupt. In addition, the arbitrator must be independent of the parties. No other restrictions apply, e.g. sitting judges of the Swedish courts may be appointed as arbitrators.
Under the SCC Rules, when the parties are of different nationalities, the SCC must appoint an arbitrator who is of a different nationality than the parties, unless the parties have agreed otherwise. No such restrictions are found under the Arbitration Act.
Swedish courts have recognized the IBA Guidelines on Conflict of Interest in International Arbitration and it is fair to say that these guidelines serve as a general restriction in the appointment of arbitrators.
No, other than the usual rules on independence and impartiality derived from the UNCITRAL Model Law (article 12 of Schedule 1 of the Act). Non-nationals can also act as arbitrators for a New Zealand-seated arbitration (article 11(1) of Schedule 1). It may be necessary for an arbitrator to apply for a work visa to attend hearings in New Zealand, depending on the nationality of the arbitrator and New Zealand’s visa arrangements with that country.
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.
Parties must comply with certain requirements under the CPC when selecting arbitrators. The requirements relate to the number of arbitrators which must be uneven, the capacity of arbitrators who must not be minors or otherwise legally incapacitated (eg through being bankrupt or the subject of criminal penalties), the integrity of the arbitrators in the sense that they must be both independent and impartial throughout their appointment. Within those parameters, the parties are at liberty to select any arbitrators they wish.
The DIFC Arbitration Law and ADGM Regulations do not contain any restrictions on the parties’ autonomy to appoint arbitrators beyond the requirement that they be impartial and independent and that they possess any particular qualifications agreed to by the parties.
There are no statutory restrictions imposed on the appointment of arbitrators and parties are free to appoint arbitrators of their choice (section 13(1) and (2), AA). However, that choice may be challenged if there are justifiable doubts as to that arbitrator’s impartiality or independence or if the arbitrator lacks agreed qualifications (section 14(3), AA).
Paralleling party autonomy, parties may consensually place restrictions on the appointment of arbitrators. In particular, parties may require appointees to be of a certain nationality.
The parties are at liberty to select any arbitrators they wish. Under the IAA, ‘[n]o person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.’ IAA, First Schedule, Article 11(1).
The IAA provides for a single arbitrator, if the number of arbitrators is not determined by the parties. IAA, Section 9. There is also a requirement for impartiality and independence of the arbitrators. IAA, First Schedule, Article 12.
According to the caput of Article 13 of Law nº 9.307/96, the arbitrator can be anyone capable and which has the confidence of the parties, so that they can name any individual (there is no possibility of the arbitrator be a legal entity) that has the planned capacity established by the Civil Code, being either excluded relatively incapable (over 16 and under 18 years; the usual drunkards and junkies toxic; those who, for temporary or permanent cause, can’t express their will; and lavish), as absolutely incapable to personally exercise the activities of civil life (under 16 years). It is important to highlight that the Organic Law of the Judiciary (Complementary Law nº 35/79) leaves no doubt about the impossibility of the state judges to exercise the duty of arbitrators. Moreover, are prevented from working as arbitrators the persons who have with the parties or with the dispute brought before them some of the relationships that characterize cases of impediment or suspicion of judges, applying, as appropriate, the same duties and responsibilities as provided in the Civil Procedure Code.
There are no general restrictions on the appointment of arbitrators. Parties may agree on the appointment of arbitrators. Under Article 11 of the Model Law, a court may supervise the process if a party fails to act as required, if the parties or two arbitrators are not able to agree on the procedures or if a third party fails to perform its function under the procedure.
Pursuant to the Model Law, if the parties have not agreed on the appointment of arbitrators, the appointment process varies depending on the number of arbitrators. If there is a single arbitrator, a court will appoint an arbitrator. If three arbitrators form the tribunal, each party appoints one arbitrator and the two arbitrators appoint the third. If there are failures in the process, a court may make an appointment at a party's request. The only restriction is that the arbitrators must be independent and impartial.
In Panama, an arbitrator that has violated the Code of Ethics of an arbitration institution or that has been declared guilty of prevarication, falsehood or fraud cannot be appointed or continue acting as an arbitrator.
Moreover, for domestic arbitrations, arbitrators that are not deciding the dispute as “amiable compositeurs” or “ex aequo et bono” shall be practicing attorneys-at-law.
Further than being an odd number ex art. 12 of the Arbitration Law, the arbitrators must be physical persons in full exercise of their civil rights and whose professional regulations do not impede to act as arbitrators.
According to the Local Law, parties are free on the appointment of arbitrators. However, this number must be an odd number. Unless otherwise agreed by the parties, only the real persons can be appointed as the arbitrators. 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. According to the Law no. 6100, if there will be an arbitral tribunal, at least one arbitrator must be a legal expert who has five year experience at least, in his/her own area.
Under German law, one of the most important rights of the parties to an arbitration is to choose freely the arbitrators for their arbitration proceedings. The parties can agree on the procedure and the number of arbitrators in their arbitration agreement (sections 1034 and 1035 ZPO).
In line with the UNCITRAL Model Law, the German arbitration law does not determine any restrictions concerning the choice of arbitrators for the arbitral proceedings. The only exceptions may be found in section 1036 (2) ZPO: the arbitrator must be impartial and independent.
Pursuant to article 812 of the Italian Civil Procedural Code, only persons legally capable can act as arbitrators. Moreover, a person cannot be appointed as an arbitrator if he/she has an interest in the outcome of the case, there is a conflict of interest resulting from professional or family relationships with the parties or he/she has advised, assisted or defended one of the parties at an earlier stage of the proceeding or has testified as a witness.
Arbitrators must be fair and impartial (section 33(1)).
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.
There are no provisions in the domestic legislation limiting the parties’ autonomy to select Arbitrators. With regard to international commercial disputes, pursuant to the provisions of section 11(1) and (2) of the ICA Law, the parties are free to determine the procedure of appointment of the Arbitrators and are free to select anyone as Arbitrator, irrespective of nationality. Depending on the nature of the dispute’s subject matter, the parties are able to select Arbitrators who are knowledgeable in the subject matter and with an expertise relevant to the dispute. However, the ICA Law provides that the appointement of an Arbitrator may be
challenged if there are circumstances that give rise to justifiable doubts as to his/her impartiality and independence.