Arbitration Tips
Appointing the Tribunal
Our Sectors • • • •
Technology, Communications & Digital Media Construction, Land & Planning Personal Affairs, Private Wealth & Philanthropy Retail & Hospitality
Our Expertise • • • • • • • • • • • • •
Arbitration Banking & Finance Charities Commercial & Corporate Data Protection & Information Disputes Employment & Immigration Family & Matrimonial Insolvency & Restructuring IP & Technology Real Estate Tax Trusts, Estates & Private Client
Arbitration Tips Appointing the Tribunal When a dispute arises which must, under the terms of an arbitration agreement, be referred to arbitration, the first step will be for the parties to appoint the tribunal. Finding the right arbitrators and ensuring that the relevant contractual, statutory or institutional requirements are complied with is vital. For the parties, having a say in the choice of the person to decide their dispute is one of the most important advantages of arbitration. Appointing the tribunal is a very important part of the arbitration process. Failure to get it right may give rise to problems later on in the process, which could have been avoided, which may delay the arbitral process and cause additional expense to the parties. This note provides some practical tips to assist in the process of appointing an arbitral tribunal.
John Abbott
Russell Beard
Partner john.abbott@laytons.com +44 (0)20 7842 8000
Partner russell.beard@laytons.com +44 (0)20 7842 8000
laytons.com | 3
Arbitration Tips | Appointing the Tribunal
When is the appointment made? There cannot be an appointment until there is arbitration. This
The importance of complying with the arbitration agreement
means a notice of commencement will need to have been
It is important that both parties comply fully with the terms of
served before an arbitrator is appointed.
the arbitration agreement and any relevant rules in appointing the tribunal; otherwise, the jurisdiction of the tribunal and any
However, if you are the party which intends to instigate the
award may be subject to challenge.
arbitration, a little early research may be a benefit especially as some arbitral institutions will want the instigating party’s nomination included in the notice of commencement.
What does the contract require?
Selecting an arbitrator Where a party has the ability to choose an arbitrator, that choice needs to be made carefully; it may influence not only the potential outcome, but also matters such as the cost and
The next step is to look at the arbitration agreement. It should
duration of the arbitration. It is worth investing time
deal with matters including:
to research the qualifications and experience of potential candidates, as well as checking their availability, terms of
• the number of arbitrators who are to be appointed
appointment and fees.
• whether there is to be a chairman or umpire • whether the arbitrators must possess any particular qualifications • any rules which apply.
Who makes the appointment? Where the institutional rules of a particular arbitral body
Be careful, it is important not to risk compromising the impartiality of the arbitrator by entering into any discussion of the merits of the case.
Attempting to agree the choice of arbitrator
apply, those rules usually set out the procedure governing the
Where the arbitration agreement requires the parties to agree
appointment of arbitrators. Procedures vary from one arbitral
the choice of arbitrator, that can be a sensitive task and it is,
body to another and may, for example, entail the arbitral
unfortunately, common for parties each to reject the other’s
body making the appointment or the arbitral body confirming
proposed candidates.
the appointment of arbitrators nominated by the parties. Consider attempting to engage directly with your opponent In an ad hoc arbitration, where the arbitration is not governed
in a meeting to see if it is possible to identify and agree
by institutional rules, the arbitration agreement itself should
suitable candidates. Sometimes that approach can be less
set out how the parties make the necessary appointments.
confrontational than an exchange of correspondence.
That process may entail the parties making the appointment
It is common practice for each party to suggest three
or the parties referring the matter to a third party who is
candidates. A letter nominating candidates should set out the
required to make the appointment.
qualifications and relevant experience of the candidates
4 | laytons.com
Arbitration Tips | Appointing the Tribunal
or attach CVs. It is worth including a brief statement as to why each candidate is considered suitable. The letter may not
Once the appointment is made
convince a sceptical or obstructive opponent, but it may help
The tribunal is constituted only once all of the required
should it prove necessary to involve the court.
number of arbitrators have been appointed. That is straightforward where there is a sole arbitrator, who can
Generally, it is best not to discuss the dispute with an
immediately exercise the tribunal’s procedural powers. It can
arbitrator before putting him/her forward: contact of any
be less straightforward where there are multiple appointments
kind can arouse suspicions and provoke rejection. Limit the
to be made.
discussion to availability, experience and qualification. It is important that the nominated arbitrator is not compromised.
Where no agreement is possible
Remedies before appointments are made Sometimes it is necessary to seek urgent relief before a
Where it is not possible to reach agreement on the
tribunal is constituted. It is necessary to look to the laws of
appointment of an arbitrator, it becomes necessary to look to
the seat of the arbitration to assist. Where England is the seat
the law of the seat of the arbitration for help. In England and
of the arbitration, the English court can step in to provide
Wales, the Arbitration Act 1996 contains a process requiring
assistance, such as granting orders to preserve assets or
service of a formal notice requesting an appointment,
evidence.
permitting a period of time for appointments to be made and, in default, the court being empowered, on the application of one party, to give directions on appointments.
Confirming the appointment
Challenges The institutional rules of arbitral bodies may contain provisions which permit an appointment to be challenged; often they require action within tight time scales.
To complete the appointment, three things need to happen: Where there are no applicable rules, national courts generally • the appointing party needs to give notice requesting
have powers to remove an arbitrator, for example, where
that the arbitrator accept an appointment to
it can be established that the arbitrator does not possess
determine the dispute the arbitrator needs to accept
requisite qualifications or lacks impartiality or capacity.
that appointment • the arbitrator’s acceptance needs to be communicated to the parties. The notice requesting the arbitrator to accept the appointment must carefully define the scope of the dispute so as to encompass all potential issues and claims. If it is drafted too narrowly, the arbitrator may not have jurisdiction to determine all issues in dispute.
laytons.com | 5
Arbitration Tips | Appointing the Tribunal
Arbitration Our team is experienced in resolving disputes through arbitration and committed to providing outcomes-focused, innovative and commercially minded advice to guide our clients through all stages of the arbitration process. We represent clients from across the globe in arbitrations involving a range of sectors including construction, international trade and commodities, investment treaties and shipping. Our experience spans arbitrations convened through the main international institutions such as the ICC, LCIA, LMAA, DIFC and SIAC as well as on an ad-hoc basis.
Our Team John Abbott
Russell Beard
Robert Clark
Simon Foster
Partner john.abbott@laytons.com +44 (0)20 7842 8000
Partner russell.beard@laytons.com +44 (0)20 7842 8000
Partner robert.clark@laytons.com +44 (0)20 7842 8000
Partner simon.foster@laytons.com +44 (0)1483 407 000
Richard Harrison
Paddy Kelly
Rebekah Parker
Will Slater
Partner richard.harrison@laytons.com +44 (0)20 7842 8000
Partner paddy.kelly@laytons.com +44 (0)20 7842 8000
Partner rebekah.parker@laytons.com +44 (0)20 7842 8000
Consultant will.slater@laytons.com +44 (0)20 7842 8000
Geraint Thomas
Ben Thorogood
Partner geraint.thomas@laytons.com +44 (0)20 7842 8000
Daniel Walter
Solicitor daniel.walter@laytons.com +44 (0)20 7842 8000
6 | laytons.com
Solicitor ben.thorogood@laytons.com +44 (0)20 7842 8000
This information is offered on the basis that it is a general guide only and not a substitute for legal advice. We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information.
London
Manchester
Guildford
2 More London Riverside London SE1 2AP +44 (0)20 7842 8000 london@laytons.com
22 St. John Street Manchester M3 4EB +44 (0)161 214 1600 manchester@laytons.com
Ranger House, Walnut Tree Close Guildford GU1 4UL +44 (0)1483 407 000 guildford@laytons.com
ID: LaytonsLLP
www.laytons.com
Š Laytons LLP which is authorised and regulated by the Solicitors Regulation Authority (SRA Nº 566807). A list of members is available for inspection at the above offices.