Composition of the arbitral tribunal

LEGAL VIEWPOINT BY DR. ABDELGADIR WARSAMA GHALIB

Arbitration is the will of the contracting parties, based on this and as per the UNICITRAL Rules of Arbitration, the parties can appoint the arbitration tribunal and indicate their number.

The Rules, to help in this respect provide for some details stating that, if the parties have not previously agreed (for example, in the arbitration clause) on the number of the arbitrators, and if within 30 days after the receipt by the respondent of the notice of arbitration the parties have not agreed that there shall be only one arbitrator, three arbitrators shall be appointed.

As we can see here, the first option is for one arbitrator and in case of no agreement, three arbitrators to be appointed.

There may be some complications regarding the agreement of the parties to appoint the arbitrators, herein they must abide by the Rules which provide, if no other parties have responded to a party’s proposal to appoint a sole arbitrator within the time limit of the 30 days and the party or parties concerned have failed to appoint a second arbitrator, the appointing authority may, at the request of a party, appoint a sole arbitrator pursuant to the procedure provided in the Rules, if it determines that, in view of the circumstances of the case, this is more appropriate.

Important to mention here, the appointing authority mentioned in UNICITRAL Rules of arbitration, is the Secretary General of the Permeant Court of Arbitration (PCA).

This, no doubt, shows the importance of the appointment of the arbitrators. If the parties have agreed that a sole arbitrator is to be appointed and if within 30 days after receipt by all other parties of a proposal for the appointment of a sole arbitrator the parties have not reached agreement thereon, a sole arbitrator shall, at the request of a party, be appointed by the appointing authority, which shall appoint the sole arbitrator as promptly as possible.

In making the appointment, the appointing authority shall use, the list-procedure, unless the parties agree that the list-procedure should not be used or unless the appointing authority determines in its discretion that the use of the list-procedure is not appropriate for the case. Herein, the appointing authority shall communicate to each of the parties an identical list containing at least three names.

Within 15 days after the receipt of this list, each party may return the list to the appointing authority after having deleted the name or names to which it objects and numbered the remaining names on the list in the order of its preference.

If within 30 days after the receipt of a party’s notification of the appointment of an arbitrator the other party has not notified the first party of the arbitrator it has appointed, the first party may request the appointing authority to appoint the second arbitrator.

If within 30 days after the appointment of the second arbitrator the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator shall be appointed by the appointing authority in the same way as a sole arbitrator would be appointed.

Where three arbitrators are to be appointed and there are multiple parties as claimant or as respondent, unless the parties have agreed to another method of appointment of arbitrators, the multiple parties jointly, whether as claimant or as respondent, shall appoint an arbitrator.

If the parties have agreed that the arbitral tribunal is to be composed of a number of arbitrators other than one or three, the arbitrators shall be appointed according to the method agreed upon by the parties.

In the event of any failure to constitute the arbitral tribunal under these Rules, the appointing authority shall, at the request of any party, constitute the arbitral tribunal and, in doing so, may revoke any appointment already made and appoint or reappoint each of the arbitrators and designate one of them as the presiding arbitrator.

As we can see, the appointment and number of the arbitrators, is primarily the duty of the concerned parties.

However, since the arbitration is under the auspices of the UNICITRAL Rules of arbitration the appointing authority, The Secretary General of the PCA shall intervene to complete the process based on his position and related experience in the arbitration process.

Appointing proper and qualified arbitrators is a cornerstone in laying fast justice through arbitration.

This is what is required from you and all, if appointed as arbitrators.

(The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Daily Tribune)