Selection and Appointment of Arbitrators

Transcription

1 Overview 1. Appointing the Tribunal 2. Organization and Procedure Special focus: the UNCITRAL Rules 2010 and the Mauritius International Arbitration Act (MIAA) 2008

2 Appointing the Tribunal 1 Selection and appointment of arbitrators 2 Arbitrator independence and disclosure 3 Arbitrators fees and expenses 4 Challenge and replacement of arbitrators Selection and Appointment of Arbitrators Parties are free to agree on matters such as the number of arbitrators, the qualifications required, and how arbitrators will be selected The Parties choice will be expressed in: Parties arbitration clause or agreement Any agreed procedural rules; and National law of agreed seat of arbitration

3 Selection Procedure In institutional arbitration, the institution will normally exercise a supervisory or default role: e.g. ICC Arbitration Rules, Articles 12(4) and 13 In ad hoc arbitration the procedure may be specified in the arbitration agreement, or may be incorporated by reference to pre-existing rules, such as the UNCITRAL Rules 2010 The national law of the seat of the arbitration, if agreed, will apply by default Appointment under the UNCITRAL Rules Sole arbitrator: Article 8 By Parties or appointing authority Designation of appointing authority by Secretary- General of the PCA: Article 6(1) and (2) The list procedure: Article 8(2) Three arbitrators: Article 9 Second arbitrator (Respondent or appointing authority) Presiding arbitrator (co-arbitrators or appointing authority)

4 Appointment under the MIAA 2008 Procedure is similar to the UNCITRAL Rules 2010 for sole arbitrator or three-member tribunal: Section 12(3) Procedure only applies if Parties have not agreed otherwise: Section 12(2) Explicit agreement is required for a tribunal with an even number of arbitrators: Section 11(b) The Secretary-General of the PCA is the default appointing authority and has additional functions: Section 12(4) and (5) Arbitrator Independence and Disclosure Arbitrators are required to be independent of the Parties and impartial. Potential arbitrators have a duty to disclose relevant circumstances; the duty of disclosure continues if circumstances subsequently change: UNCITRAL Rules Art. 11; MIAA Section 13(1) and (2) Expression of the requirement varies: see for example UNCITRAL Rules Art. 12(1); ICSID Convention, Articles 57 and 14

5 ICSID Standard Article 14(1) persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment Article 57 a party may propose disqualification on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14 UNCITRAL Standard Article 12(1) if circumstances exist that give rise to justifiable doubts as to the arbitrator s impartiality or independence

6 Arbitrators Fees and Expenses Unlike in national litigation, the expenses of arbitration are borne by the Parties Institutional arbitration: institutional rules provide method of calculation and institution may provide oversight: e.g. ICC Arbitration Rules, Art. 37 Ad hoc arbitration: fees need to be agreed between Parties and Tribunal and there might not be independent scrutiny Determination of costs: Recent Innovation Under the 2010 UNCITRAL Rules, the appointing authority is now empowered to make binding decisions in the event of a dispute over fees and expenses either once proposed, or once determined: Article 41(3) and (4) Similar provision is made in the MIAA 2008 for the Secretary-General of the PCA to exercise oversight of fees and expenses: Section 18(2)

7 Challenge of Arbitrators The procedure for challenge and the standard to be met will depend on the rules or procedure agreed by the Parties. E.g. UNCITRAL Rules Art. 13; MIAA Section 14 A challenge may usually be brought in the event of: Circumstances suggesting a lack of independence and impartiality. E.g. UNCITRAL Rules Art. 12(1) Failure to act or inability to perform functions as arbitrator: E.g. UNCITRAL Rules Art. 12(3) Replacement of Arbitrators The need for replacement will arise in the event of death, incapacity, an effective resignation, or a successful challenge Replacement may not be appropriate in some cases, for example if the proceedings are near completion or if an arbitrator resigns improperly Appointment of a replacement arbitrator usually follows the original method of appointment Following replacement, the issue will arise whether and to what extent proceedings need to be repeated

8 Organization and Procedure: Principles Conduct of the case is entrusted to the Tribunal, subject to the Parties agreement; to the applicable procedural rules and to national law at the seat: see New York Convention, Art. V(1)(d) The Tribunal must also afford each Party the opportunity to present its case: New York Convention, Art. V(1)(c) The Tribunal and Parties should avoid unnecessary delay and expense: E.g. UNCITRAL Rules Art. 17(1); ICC Rules Art. 22(1) Organization and Procedure: Key Steps Preliminaries: timetable and other basic issues - including Tribunal fees and deposit on costs Urgency: fast track procedure or interim measures? Written submissions Evidence and document production Hearing (and pre-hearing meeting) Post-hearing submissions

9 Useful Documents UNCITRAL Notes on Organization of International Arbitration Proceedings (1996) Available at: /arb-notes/arb-notes-e.pdf IBA Rules on the Taking of Evidence in International Arbitration (2010) Available at: _guides_and_free_materials.aspx#takingevidence Merci