Appointment of Arbitrators

Abstract

This chapter details the process of the appointment of arbitrators. In modern usage, arbitration is binding, and anything else created by agreement is some form or another of what might generically be referred to as third-party assisted negotiation. This explains why arbitration contemplates an odd number of arbitrators; indeed, laws regulating arbitration frequently explicitly require it. It follows that the ‘odd’ arbitrator, i.e. the one whose voice will be decisive in the event of failure of unanimity, must be appointed jointly, or by a neutral mechanism agreed by the arbitrants. That is simple enough when the process calls for a sole arbitrator. However, if the tribunal is to be composed of three arbitrators, it is often agreed that each side may select anyone it wishes provided they satisfy minimal criteria—such as professional qualifications and the readiness to declare themselves independent and impartial. The chapter then considers the different appointment methods. It specifically evaluates the practice of unilateral appointments, which introduces an adversarial element into the very deliberation of the arbitral tribunal.