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  • Writer's pictureRicardo Cuesta

The Arbitrators

One of the most important advantages of arbitration is the possibility for the parties to appoint arbitrators who are expert in the subject matter under discussion who will be able to understand it better, thus giving the parties the confidence that their dispute will be resolved by experts who truly understand the problem.

The success of an arbitration very much depends on the arbitrator selected to settle the dispute. There are a number of considerations a party must assess when choosing an arbitrator because the development of the proceedings and its outcome may be affected by:

A) The type of arbitrators.


  • Parties may appoint a retired judge, a practitioner or a professor. Their approach to solving the problem will be different according to their professional background and experience.


  • Choosing a lawyer or a non-lawyer may also affect the conducting of the proceedings and the final decision.


B) The arbitrator’s legal background.


  • Common law-trained arbitrators will have a different approach towards the conducting of the proceedings and the presentation of evidence as they will be more keen to let the parties lead the evidence and to accept discovery.


  • Civil law arbitrators are used to an inquisitorial approach for case management and will rely more on documents than on witnesses.


C) The number of arbitrators.


  • One or three arbitrators are the most common choices of the parties. Whilst one arbitrator may be more suitable for smaller disputes, a three arbitrators panel will allow each party to select its own arbitrator.


  • In an arbitral tribunal of three arbitrators, the discussions are enriched by the different points of view of the arbitrators according to their legal and cultural background. Gender, ethnic, racial and nationality diversity in the composition of the tribunal is being seen today as a guarantee of improving the quality of the decision-making process.


  • The decision on the number of arbitrators is usually made in the arbitration agreement but if the parties did not include this provision, then the arbitration rules of the institution apply. Under LCIA, ICC and CIAM Rules the default rule is that one arbitrator will be appointed unless the complexity of the dispute requires a different number. And the UNCITRAL Rules provide for three arbitrators in case the parties did not make that decision before. The Spanish Arbitration Act (2003) provides for one arbitrator (art 12).


Appointment of Arbitrators

Once a dispute has arisen it is necessary to appoint the arbitrators who will decide on the issues under discussion. A first concept we need to be aware of is the distinction between appointment and nomination.

Under most institutional rules the parties nominate an arbitrator and the institution appoints the nominee after checking that that person complies with the requirements to act as an arbitrator such as professional qualification, independence, impartiality and lack of conflicts.

The UNCITRAL Rules are an exception because as there is no institution, the parties appoint the arbitrators.

When the parties agreed on a one arbitrator, if they are unable to agree on a person, then the institution appoints the arbitrator.

If three arbitrators are to be appointed, the parties can agree on the three of them but as this is unusual, the common practice is that each party appoints one arbitrator and the co-arbitrators select the third one who will act as chairman. It the co-arbitrators are unable to make such decision, then the institution makes the appointment.

In some cases where there are several parties on one side as claimants or defendants, or if there are more than one parties (multi-party arbitration), if they are unable to appoint a common agreed person, then the institution will nominate the three arbitrators.

In ad hoc arbitrations things are different because there is no institution. In an arbitration under UNCITRAL Rules the appointment is made by the appointing authority. The parties are free to agree on an appointing authority but, if they fail to do so, then the Secretary-General of the Permanent Court of Arbitration at The Hague will designate the appointing authority. The Secretary-General can be designated as appointing authority.

When the ad hoc arbitration is not regulated by the UNCITRAL Rules, then the parties have to request the competent court of the seat of the arbitration to appoint the arbitrator.

Arbitrators’ qualifications

As mentioned before, an advantage of arbitration is that the parties can select the persons who will decide the dispute. They will usually look for persons with different characteristics, knowledge and experience in the subject matter.

According to certain surveys the most common qualifications practitioners look for in an arbitrator are reputation, expertise, common sense, knowledge of applicable law and knowledge of the relevant languages in which the proceedings will be conducted.

There are two other important requirements, independence and impartiality, that will be discussed in another post because of their importance as an arbitrator can be challenged during the arbitration proceedings for not complying with them. Besides, an award can be set aside by the courts of the state of the seat and its recognition and enforcement can be refused under the New York Convention if any of the arbitrators lacked any of them.

Some institutional rules include restrictions based on the nationality of the sole arbitrator or of the presiding arbitrator. LCIA and ICC Rules require that in those cases the arbitrator shall not have the same nationality as the parties.

Immunity of Arbitrators

Due to the specific nature of the role of the arbitrators which, to some extent, can be assimilated to that of the judges, some national laws provide for immunity to arbitrators from lawsuits similar to the immunity given to judges.

The English Arbitration Act (1996) recognizes the arbitrator’s immunity for acts done or omitted in the discharge of his functions provided that he has not acted in bad faith. Similarly, institutional rules provide for the same immunity as it is the case of LCIA and ICC Rules.

In the next post we will discuss Independence and Impartiality as fundamental characteristics of arbitrators and the importance of the arbitrator’s disclosure duty.

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Karem Munive
Karem Munive
Jan 23
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