Procedure for challenge

¹ Such pre-arbitral mechanisms are becoming more common: see paragraphs 4.03 and 4.18ff.

² The International Chamber of Commerce (ICC) may consult with the relevant national committees with regard to suitable candidates and may appoint the presiding arbitrator or make default appointments based on the proposal of that committee. If the Court does not accept the proposal, it may repeat its request or seek a proposal from another national committee, or appoint directly any person it deems suitable (ICC Rules, Art. 13(3)). The Court also has the power to make direct appointments without consulting national committees in certain prescribed circumstances, including where one or more parties is a state or state entity (ICC Rules, Art. 13(4)). The London Court of International Arbitration (LCIA) makes all final appointments, taking into account any written agreement or joint nomination by the parties (LCIA Rules, Art. 5(7)) and any particular method or criteria for selection agreed in writing by the parties (LCIA Rules, Art. 5(9)). See also the comment of Turner and Mohtashami, A Guide to the LCIA Arbitration Rules (Oxford University Press, 2009), p. 61, on Art. 5(5) of the previous Rules. Article 37(2) of the ICSID Convention and Rule 2 of the International Centre for Settlement of Investment Disputes (ICSID) Rules of Procedure for Arbitration Proceedings provide for a rather cumbersome process whereby the claimant has to propose an appointment mechanism, which, if not accepted by the other party within sixty days, defaults to an institutional system.

³ See, e.g., ICC Rules, Art. 28(2):

Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement …

For more detail on the legitimate support that can be obtained in favour of an arbitration from national courts, see Chapter 7.

⁴ LCIA Rules, Art. 9; International Centre for Dispute Resolution (ICDR) Rules, Art. 37, Netherlands Arbitration Institute (NAI) Arbitration Rules, Art. 42. The 2012 ICC Rules have introduced an emergency arbitrator procedure in Art. 29 and Appendix V. Previously, parties could rely only on the separate ICC Rules for Pre-Arbitral Referee Procedure, which required parties expressly to opt in. These were rarely used in practice.

⁵ NAI Rules, Art. 42k.

⁶ LCIA Rules, Art. 9A.

⁷ See, e.g., ICDR Rules, Art. 37.3; ICC Rules, Art. 29 and Appendix V. See paragraphs 4.18ff for a more detailed discussion on emergency arbitrators and how these solutions have been working in practice.

⁸ ICSID Arbitration Rules, r. 6(2): ‘A proceeding under the Convention shall be deemed to have been instituted on the date of the registration of the request.’

⁹ In this respect, Art. 21 of the Model Law provides that: ‘Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.’

¹⁰ Swiss PIL, Ch. 12, s. 181. In England, the parties may agree upon when the proceedings are to be regarded as commenced for limitation purposes. Failing agreement, it is when one party gives a written notice to the other party or the appointing authority seeking the establishment of the tribunal: English Arbitration Act 1996, s. 14.

¹¹ Brazil–Law No. 9.307 of 23 September 1996, s. 19.

¹² For a comprehensive review of the complex criteria involved in the selection of arbitrators, see Lalive, ‘Requirements of international arbitration: The selection of Arbitrators’, in Reymond and Bucher (eds) Swiss Essays on International Arbitration (Schulthess, 1984), p. 23; Lalive, ‘On the neutrality of arbitrators and the place of arbitration’, in Reymond and Bucher (eds) Swiss Essays on International Arbitration (Schulthess, 1984), p. 33. See also Timmer, ‘The quality, independence and impartiality of the arbitrator in international commercial arbitration’ (2012) 78 Arbitration 348.

¹³ This phrase comes from the Hague Conventions on the Pacific Settlement of International Disputes of 1899 (Art. 15) and 1907 (Art. 37). However, in recent years, a debate has arisen as to the pros and cons of accommodating unilateral party appointments within the arbitral process. See Paulsson, ‘Moral hazard in international dispute resolution’, Inaugural lecture as holder of Michael R. Klein Distinguished Scholar Chair, University of Miami School of Law, Miami, FL, 29 April 2010; Brower and Rosenberg, ‘The death of the two-headed nightingale: Why the Paulsson–van den Berg presumption that party-appointed arbitrators are untrustworthy is wrongheaded’ (2013) 29 Arb Intl 43. The authors take no position on this debate, save to note that, at the time of writing, no sea change had taken place in the ubiquity of party appointment.

¹⁴ ICC Rules, Art. 29 and Appendix V.

¹⁵ In addition to providing for the expedited formation of the arbitral tribunal (Art. 9A), the LCIA Rules provide, at Art. 9B, for the appointment of an emergency arbitrator at any time prior to the formation or expedited formation of the arbitral tribunal. Any such application must set out the specific grounds for requiring the appointment of an emergency arbitrator and the specific claim for emergency relief. Importantly, the Rules provide that any such application will not prejudice a party’s right to apply to a national court for interim or conservatory measures before the formation of the arbitral tribunal.

¹⁶ ICDR Rules, Art. 37.

¹⁷ See the 2012 Swiss Rules, Art. 43.

¹⁸ SCC Rules, Appendix II.

¹⁹ HKIAC Rules, Sch. 4.

²⁰ SIAC Rules, Sch. 1.

²¹ Nine emergency arbitrator applications had been made under the SCC Rules by the beginning of 2014, in which the tribunals took the consistent approach that an interim measure can be granted only if the applicant shows that the harm that is to be prevented by the measure is irreparable, and of an urgent or imminent nature. See Lundstedt, SCC Practice: Emergency Arbitrator Decisions, 1 January 2010–31 December 2013 (SCC, 2014), p. 25.

²² The LCIA, ICC, SCC, and Swiss Rules permit the appointment of an emergency arbitrator before the notice of arbitration is filed. Others, including the SIAC, ICDR, and Australian Centre for International Commercial Arbitration (ACICA) Rules, require that it be filed with or after the notice of arbitration.

²³ For example, Swiss Rules, Art. 26(3).

²⁴ ICC Rules, Art. 29(1) and Appendix V, Art. 1(3). The costs of an emergency arbitrator proceeding is set out in Art. 7(1) and Appendix V. Between 2012, when the ‘emergency arbitrator’ procedure was adopted, and 31 May 2014, the emergency arbitrator provisions were applied in ten cases: see Carlevaris and Feris, ‘Running in the ICC Emergency Arbitration Rules: The first ten cases’ (2014) 25 ICC International Court of Arbitration Bulletin 25. The authors suggest that these cases confirm the need amongst users of arbitration for such provisions.

²⁵ ICC Rules, Art. 29(1) and Appendix V, Art. 1(6).

²⁶ ICC Rules, Art. 2(1) and Appendix V, Art. 6(4).

²⁷ ICC Rules, Art. 29(6).

²⁸ ICC Rules, Art. 29(2).

²⁹ For example, the Singapore International Arbitration Act 2012 was amended so that the definition of ‘arbitral tribunal’ included emergency arbitrators: see Brock and Feldman, ‘Recent trends in the conduct of arbitrations’ (2013) 30 J Intl Arb 177, at 198.

³⁰ For example, in the North American Free Trade Agreement (NAFTA) state-to-state arbitrations under NAFTA, Ch. 20, under which five arbitrators are appointed: see, e.g., Mexico v USA (Cross-Border Trucking) USA-98–2008–01, 6 February 2001, in which one of the authors was the chairman of the tribunal, available online at http://www.nafta-sec-alena.org/. Other examples may be found online at http://www.pca-cpa.org/, e.g. Ireland v United Kingdom (Mox Plant), an arbitration pursuant to Annexe VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and Channel Tunnel Group Ltd and France-Manche SA v United Kingdom and France, Partial Award, UNCITRAL, PCA, 30 January 2007, IIC 58 (2007), an arbitration brought under a concession agreement between the parties in accordance with Art. 19 of the Treaty of Canterbury between the United Kingdom and France, dated 12 February 1986.

³¹ The procedure for the appointment of arbitrators is discussed paragraphs 4.33ff.

³² UNCITRAL Rules, Art. 7(1).

³³ Model Law, Art. 10(2).

³⁴ See paragraphs 4.75ff.

³⁵ See n. 13 in respect of the debate that has arisen as to the pros and cons of what Paulsson has referred to as ‘unilateral party appointments’.

³⁶ See, e.g., ICC Rules, Art. 12(2); LCIA Rules, Art. 7(2).

³⁷ ICC Rules, Art. 12(4) and (5).

³⁸ ICDR Rules, Art. 6; LCIA Rules, Art. 5; WIPO Rules, Art. 19.

³⁹ CIETAC Rules, Art. 23.

⁴⁰ Fees for this service are typically £1,250 for the LCIA, €1,500 for the secretary-general of the PCA, and US$3,000 for the ICC. These figures are available on each institution’s website.

⁴¹ One problem that has arisen in practice when the list system has failed and the appointment has been left to a third-party institution, or court, relates to the appointing authority appointing a person who has appeared on one of the party’s lists. It is not uncommon for the other party to object to such an appointment on the basis that the candidate has already been discussed by the parties, thereby ‘burning’ all of those names. To avoid this risk, it is useful to agree in advance of using a list system that the inclusion of a name on the list will not operate as a bar to the eventual appointment of such a person by the arbitral institution or appointing authority. Another, more tactical, approach is for a party not to nominate the person whom it wants on the first list, but to keep the name in reserve, so that it might emerge in subsequent negotiations. However, such gamesmanship may prove to be self-defeating if the other party agrees to a person named on the first list!

⁴² UNCITRAL Rules, Art. 8(2).

⁴³ UNCITRAL Rules, Art. 9(3).

⁴⁴ The IBA Guidelines on Party Representation in International Arbitration, published in May 2013, provide that communications between a party representative and a prospective or party-nominated arbitrator relating to the selection of the presiding arbitrator fall outside the general rule that party representatives should not engage in ex parte communications with an arbitrator concerning the arbitration (see Guideline 8(b)).

⁴⁵ English Arbitration Act 1996, s. 18(3).

⁴⁶ See the discussion concerning the lex arbitri in Chapter 2, paragraphs 2.08ff.

⁴⁷ For example, the English court may appoint an arbitrator where the seat of arbitration has not been designated, provided that the proceedings have sufficient connection with England: English Arbitration Act 1996, ss 2(4) and 18. Under the new French Arbitration Act, the president of the Paris Tribunal de Grande Instance may act in support of an international arbitration located abroad if (a) the parties have agreed that French procedural law shall apply to the arbitration, or (b) the parties have expressly granted jurisdiction to French courts over disputes relating to the arbitral procedure, or (c) one of the parties is exposed to a risk of a denial of justice (understood as the impossibility to constitute the arbitral tribunal by any other means): French Code of Civil Procedure, art. 1505(2), (3), and (4). See also Seraglini and Ortscheidt, Droit de l’Arbitrage Interne et International (Prix du Cercle Montesquieu, 2013), paras 765–772.

⁴⁸ See, e.g., Swiss PIL, Ch. 12, s. 179; French Code of Civil Procedure, Decree Law No. 2011–48 of 13 January 2011, art. 1452. Article 11 of the Model Law confers upon the appropriate national courts the power to appoint arbitrators where necessary. In England, the Arbitration Act 1996, s. 18, gives the court the power to make an appointment where the arbitration agreement provides for an appointing authority to perform the task and the authority refuses or fails to do so.

⁴⁹ UNCITRAL Rules, Art. 6(2).

⁵⁰ Hence the need to be clear, before discussing candidates between the parties, whether candidates discussed and rejected may subsequently be appointed by an appointing authority, or if they are excluded as a result.

⁵¹ The views of the parties, as well as concerns of speed and cost, may influence the secretary- general’s choice of an individual, rather than an organisation. the secretary-general’s designations of organisations include ACICA, the American Arbitration Association (AAA), the Arbitral Centre of the Austrian Federal Economic Chamber, the Bombay Incorporated Law Society, the Cairo Regional Centre for International Commercial Arbitration (CRCICA), the Chartered Institute of Arbitrators (CIArb), the German Arbitration Institute (DIS), the HKIAC, the ICC, ICSID, the Kuala Lumpur Regional Centre for Arbitration (KLRCA), the LCIA, SIAC, and the Swiss Arbitration Association. Examples of designations of individuals include: a former chief justice of New South Wales, Australia, in a dispute between a Korean company and an Asian state entity; an international arbitration practitioner based in the United Kingdom, in a dispute between a French company and the government of a Central European Republic; and an international arbitration practitioner based in the United States, in a dispute between a Dutch company and an African state entity.

⁵² By 2014, the secretary-general had dealt with more than 550 requests to designate an appointing authority or to act directly as the appointing authority, forty-one of which were in 2014 alone. See PCA, Annual Report of the Permanent Court of Arbitration (PCA, 2014), p. 25.

⁵³ See the discussion in Chapter 1.

⁵⁴ See DIS Rules, Art. 2(2).

⁵⁵ In this regard, see the discussion of the English courts’ decisions in Jivraj v Hashwani on the validity of nationality limitations on arbitrator appointments at para 4.62.

⁵⁶ For example, on the basis that the arbitral tribunal was not constituted in accordance with the agreement of the parties: see New York Convention, Art. V(1)(d).

⁵⁷ Spanish Arbitration Act 2003, s. 13, repealing the 1988 Act, s. 12(2).

⁵⁸ Saudi Arabia’s new arbitration law came into force in July 2012. The new Arbitration Regulation (Royal Decree No. M/34) is based on the principles of the UNCITRAL Model Law and has significantly modernised the pre-existing law in many respects, including in the requirements of arbitrators: see Harb and Leventhal, ‘The new Saudi Arbitration Law: Modernization to the tune of Shari’a’ (2013) 30 J Intl Arb 113.

⁵⁹ For a view on the varied profiles of arbitrators in investment treaty arbitration, which now regularly includes retired diplomats, migrating commercial arbitrators, and former judges, see van den Berg, ‘Qualified investment arbitrators?’, in Wautelet, Kruger, and Coppens (eds) The Practice of Arbitration: Essays in Honour of Hans van Houtte (Hart, 2012), p. 54.

⁶⁰ Ibid.

⁶¹ As far as gender diversity is concerned, the number of female arbitrators, whilst growing, remains disappointingly low. As at August 2014, only 5.61 per cent of the appointed arbitrators in concluded ICSID cases were female. In 2013, 13 per cent of LCIA arbitrators were female: see Greenwood and Barber, ‘Is the balance getting better? An update on the issue of gender diversity in international arbitration’ (2015) Arb Intl, online at http://arbitration.oxfordjournals.org/content/early/2015/05/02/arbint.aiv034. See also Rothman, ‘Gender diversity in arbitrator selection’, Dispute Resolution Magazine, Spring 2012, p. 22.

⁶² The latest version of the statement was introduced in January 2012 and is sent by the ICC to arbitrators when they are appointed to complete. The statement requires arbitrators to confirm their acceptance of the relevant appointment, their ability to ‘devote the time necessary to conduct [the] arbitration diligently, efficiently and in accordance with the time limits in the Rules’, and the number of pending cases in which they are involved.

⁶³ Model Law, Art. 11(1).

⁶⁴ [2011] 1 WLR 1872.

⁶⁵ Jivraj v Hashwani [2011] UKSC 40.

⁶⁶ More generally, this decision upholds the principle of party autonomy in the selection of arbitrators, since the Court refused to use public policy to fetter the parties’ freedom to agree what qualities and attributes their arbitrators should have. The judgment is discussed in depth in Style and Cleobury, ‘Jivraj v Hashwani: Public interest and party autonomy’ (2012) 27 Arb Intl 563.

⁶⁷ Emphasis added.

⁶⁹ See similar provision in HKIAC Rules, Art. 11(2), which is described as a general rule that, subject to Art. 11(3), allows an exception in ‘appropriate circumstances’ and provided that none of the parties objects within a time limit set by HKIAC.

⁶⁸ Emphasis added.

⁷⁰ ICC, ‘ICC arbitration: A ten-year statistical overview’ (2008) 19 ICC International Court of Arbitration Bulletin 1, at 10. In 2012, arbitrators of seventy-six nationalities were appointed or confirmed under the ICC Rules. By contrast, there were seventy-three in 2009, sixty-six in 2007, sixty-one in 2004, and fifty-seven in 1999: http://www.iccwbo.org/.

⁷¹ For an indication of the geographic diversity, see the list of ICSID arbitrators on the ICSID website.

⁷² The Chartered Institute of Arbitrators (CIArb), headquartered in London, offers courses that include a two-part examination structure and a system of ‘pupillage’ under which, with the consent of the parties, trainee arbitrators may attend hearings. The Institute also provides special programmes for potential international arbitrators, which are held all over the world. The ICDR also conducts training programmes for arbitrators on its various panels and offers courses in a number of different countries.

⁷³ The LCIA established the ‘Young International Arbitration Group’ in 1997. This has since been followed by the ICC ‘Under 40’ Group, ICDR’s ‘Young & International’, the Swiss Arbitration Association’s ‘Below 40’ Group, and ‘Young ICCA’.

⁷⁴ Parties can agree in advance to adhere to specific guidelines during interviews, e.g. CIArb’s 2011 Guidelines on the Interviewing of Prospective Arbitrators.

⁷⁵ See Chartered Institute Guidelines and IBA Guidelines on Party Representation in International Arbitration (2013). See also Bishop and Reed, ‘Practical guidelines for interviewing, selecting and challenging party-appointed arbitrators in international commercial arbitration’ (1998) 4 Arb Intl 395.

⁷⁶ See the discussion in Chapter 1. See LCIA Rules, Art. 10(1) and (3); ICC Rules 2012, Art. 14(1); UNCITRAL Rules 2010, Art. 12; ICDR Rules, Art. 8(1); SIAC Rules 2010, Art. 11(1); HKIAC Rules, Art. 11(4); CIETAC Rules 2012, Art. 29(2).

⁷⁷ The 1977 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes (Canon VII, Introductory Note) provided for this presumption. According to one commentator, this resulted from a conception that arbitration was to be considered to be a form of alternative dispute resolution (ADR) rather than neutral adjudication: see Finizio, ‘The partial arbitrator: US developments relating to arbitrator bias’ (2004) 7 Intl Arb L Rev 88